Torts Commons^™

Recovering Wagner V. International Railway Company, Kenneth S. Abraham, G. Edward White

Touro Law Review

No abstract provided.

Federal Legislative Attacks On Class Actions, Joanne Doroshow

Articles & Chapters

No abstract provided.

The Litigators: Perceptions Of Predictability, Definitions Of A Good Outcome, And An Alternative To Mass Tort Trials, Lisa K. Dicker, Shane K. Hebel

Faculty Publications

(Excerpt)

A pervasive theme in our understanding of civil legal disputes is the “big case”; that is, the generic mass tort that pits sympathetic clients against shadowy, villainous corporations. In John Grisham’s stories about these cases, a David-and-Goliath legal battle ensues, the parameters of the law shift, the attorneys’ ethics stretch, and the author uses characters to reveal both sides’ deep secrets unwillingly—and sometimes unwittingly. Ultimately, the case leads to a “win” for one side or the other—either a huge payday for the clients and a large percentage-based fee for the lawyers who stumbled across it, or a corporation that …

'Your Old Road Is/Rapidly Agin': International Human Rights Standards And Their Impact On Forensic Psychologists, The Practice Of Forensic Psychology, And The Conditions Of Institutionalization Of Persons With Mental Disabilities, Michael L. Perlin

Articles & Chapters

An earlier version of this paper was presented as the Lynn Stuart Weiss lecture at the American Psychological Association yearly conference, sponsored by the American Psychology-Law Society and the American Psychology Foundation, August 2016, Denver, Colorado.

For years, considerations of the relationship between international human rights standards and the work of forensic psychologists have focused on the role of organized psychology in prisoner abuse at Guantanamo Bay and Abu Ghirab. That issue has been widely discussed and debated, and these discussions show no sign of abating. But there has been virtually no attention given to another issue of international human …

Taxing Litigation: Federal Tax Concerns Of Personal Injury Plaintiffs And Their Lawyers, Gregg Polsky

Scholarly Works

This Article addresses the federal tax concerns ofpersonal injury plaintiffs and the lawyers who represent them, typically on a contingencyfee basis. It explains when plaintiffs' recoveries are taxable for income and employment tax purposes and whether and how those recoveries are required to be reported by defendants to the IRS. It also discusses whether attorney's fees and costs are deductible by plaintiffs.

In addition to these tax planning and compliance issues, the Article also considers when tax evidence might be admissible. Plaintiffs and defendants often try to introduce tax evidence in an effort to increase or decrease, respectively, the amount …

In The Privacy Of One's Own Home: Does New York State Law Prevent Invasions Of Privacy In The Home?, Madeline Kessler

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Qualified Immunity And Fault, John F. Preis

Law Faculty Publications

As a general rule, liability correlates with fault. That is, when the law declares a person liable, it is usually because the person is, in some sense, at fault. Similarly, when the law does not declare a person liable, it is usually because the person is not deemed to be at fault. There are exceptions, of course. A storekeeper who unwittingly sells a product that harms another may be held liable under the doctrine of strict liability, despite her blameless conduct. Similarly, a website owner who knowingly permits others to post defamatory statements on her website is not liable, despite …

The 'Blurred Lines' Of Marvin Gaye's 'Here, My Dear': Music As A Tortious Act, Divorce Narrative And First Amendment Totem, Bryan Adamson

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Captured At The Scene: A Proposal For The Admissibility Of Visually Recorded Scene Statements From Domestic Violence Complainants In Western Australia, Benjamin Procopis

Theses : Honours

In 2015, New South Wales introduced a legislative reform termed DVEC, which made admissible as evidence in chief, visually recorded statements from domestic violence complainants. Unlike other pre-recorded evidence, DVEC is captured at the scene of the incident, shortly after the event. The impetus for implementing DVEC was to overcome the issues identified with prosecuting domestic violence offences owing to the power imbalance in the relationship and the vulnerability of the complainant. In Western Australia, visually recorded statements from children and those with mental impairment are presently admissible for the same underpinning reasons. Police prosecutors and defence counsel participated in …

What’S In A Name?: Proving Actual Damages For Reputational Harm In Texas Defamation Cases Will Only Get Harder, Austin Brakebill

SMU Law Review

No abstract provided.

Privacy's Double Standards, Scott Skinner-Thompson

Publications

Where the right to privacy exists, it should be available to all people. If not universally available, then privacy rights should be particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, there is evidence that people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This disparity occurs despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections.

This Article unearths disparate outcomes in public disclosure tort …

Criminal Employment Law, Benjamin Levin

Publications

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with …

Suing The President For First Amendment Violations, Sonja R. West

Scholarly Works

On any given day, it seems, President Donald Trump can be found attacking, threatening, or punishing the press and other individuals whose speech he dislikes. His actions, moreover, inevitably raise the question: Do any of these individuals or organizations (or any future ones) have a viable claim against the President for violating their First Amendment rights?

One might think that the ability to sue the President for violation of the First Amendment would be relatively settled. The answer, however, is not quite that straightforward. Due to several unique qualities about the First Amendment and the presidency, it is not entirely …

Qualified Immunity And Statutory Interpretation: A Response To William Baude, Hillel Y. Levin, Michael Wells

Scholarly Works

In his article, Is Qualified Immunity Unlawful?, Professor Baude argues that the doctrine of qualified immunity under section 1983 is unlawful because the doctrine did not exist at the time section 1983 was enacted. We disagree. Section 1983 is a common law statute. Consequently, its meaning and application was not fixed at the time of original passage. In this article, we explain why.

Although we are sympathetic to Professor Baude’s implicit policy-based critique of the doctrine of qualified immunity, we believe his analysis is flawed. The better and more likely way to improve the doctrine is through the common law …

Wrongful Convictions, Constitutional Remedies, And Nelson V. Colorado, Michael Wells

Scholarly Works

This article examines the U.S. Supreme Court’s Nelson v. Colorado opinion, in which the Court addressed the novel issue of remedies for persons wrongly convicted of crimes. Governments routinely deprive criminal defendants of both liberty and property upon conviction, and do so before giving them a chance to appeal their convictions and sentences. When a conviction is overturned, the state typically refunds fines and most other monetary exactions but seldom compensates for the loss of liberty. In Nelson, the Supreme Court addressed an unusual case in which the state did not return the money and that refusal was approved (purportedly …

Qualified Immunity After Ziglar V. Abbasi: The Case For A Categorical Approach, Michael Wells

Scholarly Works

Qualified immunity protects officers from liability for damages unless they have violated clearly established rights, on the ground that it would be unfair and counterproductive to impose liability without notice of wrongdoing. In recent years, however, the Supreme Court has increasingly applied the doctrine to cases in which it serves little or no legitimate purpose. In Ziglar v. Abbasi, for example, the rights were clearly established but the Court held that the officers were immune due to lack of clarity on other issues in the case. Because holdings like Ziglar undermine the vindication of constitutional rights and the deterrence of …

Publicly Funded Objectors, Elizabeth Chamblee Burch

Scholarly Works

On paper, class actions run like clockwork. But practice suggests the need for tune-ups: sometimes judges still approve settlements rife with red flags, and professional objectors may be more concerned with shaking down class counsel than with improving class members’ outcomes. The lack of data on the number of opt-outs, objectors, and claims rates fuels debates on both sides, for little is known about how well or poorly class members actually fare. This reveals a ubiquitous problem — information barriers confront judges, objectors, and even reformers. Rule 23’s answer is to empower objectors. At best, objectors are a partial fix. …

The Macpherson-Henningsen Puzzle, Victor P. Goldberg

Faculty Scholarship

In the landmark case of MacPherson v. Buick, an automobile company was held liable for negligence notwithstanding a lack of privity with the injured driver. Four decades later, in Henningsen v. Bloomfield Motors, the court held unconscionable the standard automobile company warranty which limited its responsibility to repair and replacement, even in a case involving physical injury. This suggests a puzzle: if it were so easy for firms to contract out of liability, did MacPherson accomplish anything?

United States Supreme Court Surveys: 2016 Term. Still Standing After All These Years: Five Decades Of Litigation Under The Fair Housing Act And The Supreme Court Still Can't Say For Sure Who Is Protected, David A. Logan

Roger Williams University Law Review

No abstract provided.

Re-Evaluating The Demise Of The Average, Ordinary, Reasonable Person: Unintended Consequences In The Law Of Nuisance, George P. Smith Ii, William P. Lane

Scholarly Articles

This Article advocates for a wider pleading use of the tort of nuisance—this, because of the unresolved complexities in the doctrine of causation which continue to plague an effective use of negligence. The confusing awkwardness or, perhaps, the actual demise, of the notion of an average, ordinary, reasonable person so essential to improving negligent wrongdoing has caused aggravation over the years and, indeed, given rise to a state of torbidity.

The judiciary can more easily resolve this evidentiary quagmire by shifting its judicial attention and analysis to the tort of nuisance. With alarming social indicators and statistical projections, confirming the …