Torts Commons^™

Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence

Dickinson Law Review (2017-Present)

No abstract provided.

The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey

Dickinson Law Review (2017-Present)

It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have …

Strict Liability Upon Gunowners (Slug): A Proposed Balanced Approach, David Louis

St. Mary's Law Journal

Careless or apathetic gunowners, whose lost or stolen firearms are used in the commission of a violent crime, should be held strictly liable. Current tort law leaves victims of gun violence and their families without a mode of redress against an irresponsible gun owner whose actions played a pivotal role in the victim’s ultimate injury. Without effective liability principles to regulate gun ownership, gunowners are provided de facto immunity regardless of whether the harm suffered by the victim is intertwined with the gunowners careless behavior. This comment examines the efficacy of existing tort liability principles as provided in the Restatement …

The Ncaa's Special Relationship With Student-Athletes As A Theory Of Liability For Concussion-Related Injuries, Tezira Abe

Michigan Law Review

The National Collegiate Athletic Association (NCAA) is the primary governing body of college athletics. Although the NCAA proclaims to protect student-athletes, an examination of its practices suggests that the organization has a troubling history of ignoring the harmful effects of concussions. Over one hundred years after the NCAA was established, and seventy years after the NCAA itself knew of the potential effects of concussions, the organization has done little to reduce the occurrence of concussions or to alleviate the potential effects that stem from repeated hits to the head. This Note argues for recognizing a special relationship between the NCAA …

Reynolds V. Tufenkjian, 136 Nev. Adv. Op. 19 (Apr. 9, 2020), Brittni Tanenbaum

Nevada Supreme Court Summaries

The Court considered whether a party who purchased a judgment debtor’s rights of action could motion the Court to substitute themselves in as the real party in interest and dismiss the appeal. The Court held that only “things in action” that are otherwise assignable may be subject to execution to satisfy a judgment. The Court concluded that tort claims for personal injury—including fraud/intentional misrepresentation and elder exploitation—are generally not assignable. The Court further concluded that tort claims for injury to property and contract-based claims, unless the claims are personal in nature, are generally assignable. Therefore, the Court granted the respondents’ …

Let The Jury Decide! A Plea For The Proper Allocation Of Decision-Making Authority In Louisiana Negligence Cases, Thomas C. Galligan Jr.

Journal Articles

No abstract provided.

Borrowing American Ideas To Improve Chinese Tort Law, Yongxia Wang

St. Mary's Law Journal

As China develops its modern jurisprudence it faces a choice between emulating the legal frameworks of civil law countries or common law countries. Thus far, the civil law path has allowed for a rapid expansion of Chinese tort law, but jurists have found difficulty in applying such generalized statutory schemes with the absence of supporting judicial interpretation. Cognizant of the differences between the public policy of common law countries and China, Vincent Johnson’s Mastering Torts (Měiguó Qīnquán Fǎ) provides this guidance through the lens of American tort law. The hornbook takes care to simplify the role of judicial …

Contract's Revenge: The Waiver Society And The Death Of Tort, Ryan Martins, Shannon Price, John Fabian Witt

Cardozo Law Review

No abstract provided.

Keeping Ai Under Observation: Anticipated Impacts On Physicians' Standard Of Care, Iria Giuffrida, Taylor Treece

Faculty Publications

As Artificial Intelligence (AI) tools become increasingly present across industries, concerns have started to emerge as to their impact on professional liability. Specifically, for the medical industry--in many ways an inherently "risky" business--hospitals and physicians have begun evaluating the impact of Al tools on their professional malpractice risk. This Essay seeks to address that question, zooming in on how AI may affect physicians' standard of care for medical malpractice claims.

Tax Free Damages: Trespassory Torts And Emotional Harms, Joi T. Christoff

Akron Law Review

This Article proposes a conception of the “personal physical injury” exclusion that does not require observable bodily harm. The §104 exclusion has historically been interpreted by reference to tort principles. And tort law has long recognized the legitimacy of emotional distress arising from invasions of physical interests that do not cause bodily harm, even when it would not recognize emotional distress in other contexts. The “personal physical injury” exclusion of § 104(a)(2) should be interpreted consistently with tort principles such that emotional distress damages attributable to intentional invasions into a person’s physical autonomy, security, and liberty should be excluded from …

Supervisors Without Supervision: Colon, Mckenna, And The Confusing State Of Supervisory Liability In The Second Circuit, Ryan E. Johnson

Washington and Lee Law Review

This Note received the 2019 Washington and Lee Law Council Law Review Award.

This Note analyzes two intra-Second Circuit splits that make it nearly impossible for prisoners to recover against supervisors under § 1983. First, district courts in the Second Circuit are divided as to whether the five categories of personal involvement defined in Colon v. Coughlin survive the Supreme Court’s decision in Ashcroft v. Iqbal. Personal involvement by the supervisory defendant is a necessary element to impose supervisory liability. Some district courts hold that only the first and third Colon factors survive Iqbal, while others hold that all …

(Almost) No Bad Drugs: Near-Total Products Liability Immunity For Pharmaceuticals Explained, Anita Bernstein

Washington and Lee Law Review

This Article explores four beliefs about supposed pharma-benevolence that appear to be shared by more than the industry, reaching the level almost of conventional wisdom. These figurative pillars help support one-sided results in court. However, each of the pillars on examination turns out at least a bit shaky. This Article puts them forward for review to start a necessary discussion.

The locus of this Article is products liability, where a court concludes that a manufactured object is defective or could be called defective by a factfinder following a trial. Drug manufacturers enjoy near-immunity from this consequence. Modern products liability identifies …

The Myth Of Personal Liability: Who Pays When Bivens Claims Succeed, James E. Pfander, Alexander A. Reinert, Joanna C. Schwartz

Articles

In Bivens v. Six Unknown Named Agents, the Supreme Court held that federal law creates a right to sue federal officials for Fourth Amendment violations. For the last three decades, however, the Court has cited the threat of individual liability and the burden of government indemnification on agency budgets as twin bases for narrowing the right of victims to secure redress under Bivens. In its most recent decisions, Ziglar v. Abbasi and Hernandez v. Mesa, the Court said much to confirm that it now views personal liability less as a feature of the Bivens liability rule than …

Could The Rise Of Dockless Scooters Change Contract Law?, John Kendall

Mercer Law Review

Dockless scooters have been revolutionizing the way individuals in highly populated towns and cities commute on a day-to-day basis across the country. Instead of riding the bus, individuals now have the option to pay money to ride scooters short distances and save themselves the hassle of riding on crowded buses. Among the many issues and questions this creates for lawyers and lawmakers, one particularly noteworthy issue is whether the electronic waivers and arbitration clauses scooter companies require riders to sign before operating the scooters can shield the scooter companies from liability when the unexpected occurs. Currently, the top dockless scooter …

Abrams V. Sanson, 136 Nev. Adv. Op. 9 (Mar. 5, 2020), Anya Lester

Nevada Supreme Court Summaries

The Court determined that statements sent to an email listserv criticizing an attorney’s courtroom conduct were good faith communications regarding a matter of public concern and were protected under the Nevada anti-SLAPP statutes. However, the Court held that Abrams did not show a probability of prevailing on her claims with prima facie evidence as her claims did not exhibit minimal merit.

When Losses Are Too Big: Evaluating The Economic Loss Doctrine In California, John T. Nockleby

Loyola of Los Angeles Law Review

The pure economic loss doctrine is a rule developed by common law courts to shield a defendant from exposure to negligence suits where a party has not suffered physical injury or property damage, and the only losses someone suffers are economic in nature—such as lost profits or wages. Most recently, the California Supreme Court evaluated whether the doctrine should be applied in a case involving a massive environmental disaster, holding that the doctrine shielded a utility from liability for the economic losses to neighboring businesses caused by its putative negligence.

In October of 2015, a huge underground natural gas storage …

Supervisory Liability And Ashcroft V. Iqbal, Alexander A. Reinert

Cardozo Law Review

No abstract provided.

Neither Contract Nor Tort: Salomon Triumphant?, Kwan Ho Lau

Research Collection Yong Pung How School Of Law

This is a note on three cases: Palmer Birch v Lloyd [2018] 4 WLR 164, Gruber v AIG Management France SA [2018] EWHC 3030 (Comm) and Bumi Armada Offshore Holdings Ltd v Tozzi Srl [2019] 1 SLR 10.

Production, Not Dependence: The Metaphysics Of Causation And Its Role In Explanation, Responsibility, And The Law, Yuval Abrams

Dissertations, Theses, and Capstone Projects

Causation is production, not dependence. It is not merely a matter of how two facts or events covary, but about what underlies that covariation. Furthermore, causation is unified (not fragmented or plural) and is a natural relation (in the world). To cause is to make something happen, to generate. The causal nexus (the web of causal influence) consists entirely of productive positive causes. With these fixed, the (causal) dependence relations are determined.

Dependence belongs to the theory of explanation. Causal dependence is an explanatory notion: A causally explains B, in virtue of a causal relation between cause C and effect …

#Livingwhileblack: Blackness As Nuisance, Jamila Jefferson-Jones, Taja-Nia Y. Henderson

Law Faculty Research Publications

No abstract provided.