Torts Commons^™

Standing Up For Their Data: Recognizing The True Nature Of Injuries In Data Breach Claims To Afford Plaintiffs Article Iii Standing, Andrew Braunstein

Journal of Law and Policy

Over the last several years, data breaches have become increasingly more common, due in no small part to the failures of organizations charged with storing and protecting personal data. Consumers whose data has fallen victim to these breaches are more often turning to federal courts in attempts to be made whole from the loss of their information, whether simple credit card information or, as breaches become more sophisticated, social security information, medical and financial records, and more. These consumers are often being turned away from the courthouse, however, due to a failure of many federal courts to find that the …

Personal Injury Victims As Insurance Collection Agents: Erisa Preemption Of State Antisubrogation Laws, Jonathan P. Connery

Journal of Law and Policy

The Employee Retirement Income Security Act (ERISA) was enacted in 1974 to protect the pension rights of employees nationwide. However, due to its broad preemptive powers, ERISA has since developed into a tool used by health insurers to recover millions of dollars in tort damages meant to benefit employees with ERISA health plans. This practice, known as subrogation, has been met with legislative backlash in the form of state antisubrogation statutes, which attempt to limit the enforceability of subrogation clauses found in almost all ERISA health plans. However, many courts have held that ERISA preempts these antisubrogation statutes, thereby affirming …

Share And Share Dislike: The Rise Of Uber And Airbnb And How New York City Should Play Nice, Alexandra Jonas

Journal of Law and Policy

Uber and Airbnb are two companies in the emerging “sharing economy” that provide individuals with a means to become entrepreneurs and benefit from a laissez-faire business model. The problem, however, is that while the benefits to users are great, so too are the risks. The dangers of operating without restraint and circumventing existing law are not only potentially harmful to unapprised users, but also adversely affect the continued use of these businesses. Every aggrieved user complaint has the potential for a lawsuit and every violation creates an opportunity for penalties. Left over are attempts by the courts and city government …

Meta-Mindfulness: A New Hope, Peter H. Huang

Publications

This Essay starts by tracing its humble origins to an earlier, related and unique law review article, namely, Tiger Cub Strikes Back: Memoirs of an Ex-Child Prodigy About Legal Education and Parenting. This Essay describes various professional responses to Tiger Cub Strikes Back, provides an update of some developments in research about parenting and legal education since Tiger Cub Strikes Back, and recounts a few personal stories about mindfulness and related to being an ex-child prodigy. This Essay then analyzes meta-mindfulness, defined as mindfulness about mindfulness. This Essay discusses how mindfulness about mindfulness can help facilitate the …

Briefing Book: Tort Litigation By The Numbers. Center For Justice And Democracy, Joanne Doroshow, Emily Gottlieb

Other Publications

The Center for Justice & Democracy at New York Law School released its new briefing book, TORT LITIGATION: BY THE NUMBERS. The book highlights the latest information and statistics on tort (personal injury) suits across the country, based largely on recent statistics from the National Center for State Courts (NCSC),[1] the U.S. Department of Justice and other research institutions. Principal authors of the briefing book are Emily Gottlieb, CJ&D’s Deputy Director for Law and Policy, and Joanne Doroshow, CJ&D Executive Director. Said Doroshow, “This briefing book shows that injured Americans hardly ever sue wrongdoers for their injuries, and when they …

Financing Issue Classes: Benefits And Barriers To Third-Party Funding, Elizabeth Chamblee Burch

Scholarly Works

This essay, written for NYU's symposium on Litigation Funding: The Basics and Beyond, explores the costs and benefits of using third-party financing to fund issue class actions.

Harmonizing European Tort Law And The Comparative Method A Review Of Basic Questions Of Tort Law From A Comparative Perspective (Helmut Koziol Ed., Sramek 2015), Michael Wells

Scholarly Works

This is a book review of Basic Questions of Tort Law from a Comparative Perspective, edited by Professor Helmut Koziol. This book is the second of two volumes on “basic questions of tort law.” In the first volume, Professor Helmut Koziol examined German, Austrian, and Swiss tort law. In this volume Professor Koziol has assembled essays by distinguished scholars from several European legal systems as well as the United States and Japan, each of whom follows the structure of Koziol’s earlier book and explains how those basic questions are handled in their own systems.

This review focuses on Professor Koziol’s …

Golden Road Motor Inn, V. Islam, Et. Al., 132 Nev. Adv. Op. 49 (Jul. 17, 2016), Heather Caliguire

Nevada Supreme Court Summaries

The Nevada Supreme Court held that non-compete agreements cannot extend further than what is reasonable and necessary to protect the interests of the employer and cannot create an undue hardship on the employee. It also held that courts may not “blue line” (“blue pencil”) contracts, that is change or delete terms to make the Contract legal. The Court further held that altering player contact information, so long as the information can be restored with minimal disruption to the gaming company does not rise to the level of conversion. Finally, the Court held that a gaming company is not liable for …

2015 Survey Of Rhode Island Law: Cases And Public Laws Of Note, Roger Williams University Law Review Staff

Roger Williams University Law Review

No abstract provided.

Causation Actually, J. S. Dillbary

Georgia Law Review

This Article debunks the consensus that in concerted
action, concurrent causes, and alternative liability
situations, the actual causation requirement is always
missing. While courts and scholars insist that in these
cases tort law holds liable parties who clearly did not
cause the victim's harm, this Article offers a novel
approach. Using a simple model and applying it to
leading decisions, this Article shows that a party who did
not and could not even potentially injure the victim could
nevertheless be a but-for reason for the harm. The Article
also challenges claims that causation theories like
concerted action, substantial factor and …

Tort Reform: Blocking The Courthouse Door And Denying Access To Justice, Joanne Doroshow

Articles & Chapters

No abstract provided.

Does Medical Malpractice Law Improve Health Care Quality?, Michael D. Frakes, Anupam B. Jena

Faculty Scholarship

Despite the fundamental role of deterrence in justifying a system of medical malpractice law, surprisingly little evidence has been put forth to date bearing on the relationship between medical liability forces on the one hand and medical errors and health care quality on the other. In this paper, we estimate this relationship using clinically validated measures of health care treatment quality constructed using data from the 1979 to 2005 National Hospital Discharge Surveys and the 1987 to 2008 Behavioral Risk Factor Surveillance System records. Drawing upon traditional, remedy-centric tort reforms — e.g., damage caps — we estimate that the current …

The Equipoise Effect, Bert Huang

Faculty Scholarship

This Essay explores an overlooked way to use the remedy of disgorgement in torts, contracts, and regulation. It begins with a reminder that disgorging net gains does not force the liable actor to take a loss; by definition, it allows him to break even. As a matter of incentives, it places him in a sort of equipoise. This equipoise effect has a logical upshot that might seem counterintuitive: Substituting disgorgement for any other remedy, part of the time, can emulate the incentive effect of using that other remedy all of the time.

In theory, then, courts or regulators can sometimes …

Driverless Cars And The Much Delayed Tort Law Revolution, Andrzej Rapaczynski

Faculty Scholarship

The most striking development in the American tort law of the last century was the quick rise and fall of strict manufacturers’ liability for the huge social losses associated with the use of industrial products. The most important factor in this process has been the inability of the courts and academic commentators to develop a workable theory of design defects, resulting in a wholesale return of negligence as the basis of products liability jurisprudence. This article explains the reasons for this failure and argues that the development of digital technology, and the advent of self-driving cars in particular, is likely …

Copyright And Tort As Mirror Models: On Not Mistaking For The Right Hand What The Left Hand Is Doing, Wendy J. Gordon

Faculty Scholarship

No abstract provided.

Private Dollars For Public Litigation: An Introduction, Anthony J. Sebok

Articles

The article argues that litigation investment—where third-party funders provide capital for lawsuits in exchange for a share of potential recoveries—should be extended to public litigation. It contends that the economic rationale for litigation investment applies equally to public entities, such as state Attorneys General, as it does to private litigants. The author highlights the funding gap in public litigation, particularly in large-scale cases against well-resourced defendants, and suggests that litigation investment could address this gap more effectively than contingent fee arrangements with private attorneys.

Editor's Introduction To The Symposium "Macpherson At 100: Reflections On Its Influence", Anthony J. Sebok

Articles

The article introduces a symposium that challenges the conventional narrative of MacPherson v. Buick Motor Co. as a decisive victory over the privity rule. It argues that the case's actual influence is more nuanced, misunderstood, or absent than commonly believed, suggesting that the meaning of landmark decisions is shaped by subsequent interpretation rather than the ruling alone.

Back To Basics: Public Adjudication Of Corporate Atrocities Torts, Maya Steinitz

Faculty Scholarship

The editors of this online symposium invited me to contribute to the subject of an argument I have recently advanced. This argument is that the world needs a permanent International Court of Civil Justice (ICCJ) to adjudicate cross-border mass torts. A common reaction to this proposal has been to suggest that the function of such an international court be assumed by one of the existing arbitration institutions or filled by a new one. I’d like to take this opportunity to argue against that idea.

Corporate atrocities, which are the symposium’s focus, may be crimes, but they also have a tort …

Piroozi V. Eighth Jud. Dict. Ct., 131 Nev. Adv. Op. 100 (Dec. 31, 2015), Jessie Folkestad

Nevada Supreme Court Summaries

Real parties in interest, Hurst and Abbington sought and obtained a pretrial order from the district court barring petitioners, Dr. Piroozi and Dr. Blahnik, from arguing comparative fault of settled defendants at trial and including those defendants’ names on the verdict forms. In granting the Writ of Mandamus filed by the petitioners, the Supreme Court of Nevada resolved a conflict between NRS 41.141(3) and NRS 41A.045, holding that NRS 41A.045 preempts NRS 41.141(3) and entitles a defendant to argue the percentage of fault of settled defendants at trial and to include the settled defendant’s names on the jury verdict form.

Newsroom: Logan On 2015'S Record Settlements, Roger Williams University School Of Law

Life of the Law School (1993- )

Also available @ http://law.rwu.edu/story/logan-2015s-record-settlements