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Measles And Misrepresentation In Minnesota: Can There Be Liability For Anti-Vaccine Misinformation That Causes Bodily Harm?, Dorit Rubinstein Ross, John Diamond 2019 University of San Diego

Measles And Misrepresentation In Minnesota: Can There Be Liability For Anti-Vaccine Misinformation That Causes Bodily Harm?, Dorit Rubinstein Ross, John Diamond

San Diego Law Review

Balancing protecting and compensating victims of harmful fake news and protecting freedom of speech and the information flow is both important and challenging. Vaccines are one area where misinformation can directly cause harm. When misrepresentation leads people to refuse vaccines, disease outbreaks can happen, causing harm, even deaths, and imposing costs on the community. The tort of negligent misrepresentation that causes physical harm appears a custom-made remedy for those affected. However, courts—appropriately— narrowed the tort to protect freedom of speech and the flow of information. This Article uses an especially egregious example of anti-vaccine misrepresentation to examine the boundaries ...


The Defamation Injunction Meets The Prior Restraint Doctrine, Doug Rendleman 2019 University of San Diego

The Defamation Injunction Meets The Prior Restraint Doctrine, Doug Rendleman

San Diego Law Review

This article maintains that, under defined circumstances, a judge should be able to grant an injunction that forbids the defendant’s proved defamation. It analyzes the common law of defamation, the constitutional prior restraint doctrine, the constitutional protection for defamation that stems from New York Times v. Sullivan, and injunctions and their enforcement.

In Near v. Minnesota, the Supreme Court expanded protection for expression by adding an injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgment for defamation. An injunction that forbids the ...


“Go Sue Yourself!” Imagining Intrapersonal Liability For Negligently Self-Inflicted Harms, Lars Noah 2019 University of Florida Levin College of Law

“Go Sue Yourself!” Imagining Intrapersonal Liability For Negligently Self-Inflicted Harms, Lars Noah

Florida Law Review

Are “self-inflicted” harms actionable? Courts increasingly have allowed victims to identify other (typically unrelated) parties that may share responsibility for such injuries. Moreover, insofar as judges now also permit lawsuits against closely related parties, they arguably have expanded what it means for a harm to qualify as self-inflicted. Taking these various doctrinal developments to an illogical extreme, this Article asks whether we should just let victims bring tort claims against themselves, understanding that the victims’ own liability insurers represent the intended targets. That this idea is not as crazy as it sounds suggests the extent to which tort law has ...


Brief Of Amici Curiae Employment Law Professors In Support Of Respondents, Sandra F. Sperino 2019 University of Cincinnati College of Law

Brief Of Amici Curiae Employment Law Professors In Support Of Respondents, Sandra F. Sperino

Faculty Articles and Other Publications

This Court should not interpret section 1981 to require proof of but-for causation, given that statute’s text, history, and purpose. Although Comcast invokes the canon of statutory construction that Congress intends statutory terms to have their settled common-law meaning, that canon does not apply here. Section 1981 has no statutory text that reflects a common-law understanding of causation. Indeed, in 1866, when Congress enacted the predecessor to section 1981, there was no well-settled common law of tort at all. Rather, just as courts have read 42 U.S.C. § 1982, which shares common text, history and purpose, this Court ...


Table Of Contents, Seattle University Law Review 2019 Seattle University School of Law

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


The Modification Of Washington's Nondelegable Duty Doctrine In A Post-Afoa Ii State, Caroline Aubry Golshan 2019 Seattle University School of Law

The Modification Of Washington's Nondelegable Duty Doctrine In A Post-Afoa Ii State, Caroline Aubry Golshan

Seattle University Law Review

Under the nondelegable duty doctrine, a person or entity who has a duty to provide specified safeguards or precautions for the safety of others and who maintains a right of control over workplace safety is subject to liability for harm caused by the failure of a sub-contractor to provide such safeguards or precautions. This doctrine is based on the policy that the party with the greatest power over work conditions is in the best position to implement safety measures across a complex and layered worksite. This doctrine has existed in Washington State for decades until the recent Washington Supreme Court ...


The Externality Of Victim Care, Alan J. Meese 2019 William & Mary Law School

The Externality Of Victim Care, Alan J. Meese

Alan J. Meese

No abstract provided.


W(H)Ither Warranty: The B(L)Oom Of Products Liability Theory In Cases Of Deficient Software Design, Peter A. Alces 2019 William & Mary Law School

W(H)Ither Warranty: The B(L)Oom Of Products Liability Theory In Cases Of Deficient Software Design, Peter A. Alces

Peter A. Alces

No abstract provided.


Constitutional Rights Without Remedies: Judicial Review Of Underinclusive Legislation, Bruce K. Miller, Neal Devins 2019 William & Mary Law School

Constitutional Rights Without Remedies: Judicial Review Of Underinclusive Legislation, Bruce K. Miller, Neal Devins

Neal E. Devins

No abstract provided.


The Misuse Of Product Misuse: Victim Blaming At Its Worst, Robert A. Adler, Andrew F. Popper 2019 Selected Works

The Misuse Of Product Misuse: Victim Blaming At Its Worst, Robert A. Adler, Andrew F. Popper

Andrew Popper

This Paper addresses the legal consequences that surface when a consumer uses a product in a manner not specifically intended by that product’s designer or manufacturer. If a product is used in a reasonably foreseeable manner, the fact that the use is at odds with a manufacturer’s intention should not be a basis to deny tort liability or limit the regulatory options of the Consumer Product Safety Commission. If a product proves to be unsafe, defective, dangerous, or otherwise hazardous to users and consumers, use patterns should not be the primary determinant in assessing regulatory and common law ...


Rethinking Feres: Granting Access To Justice For Service Members, Andrew F. Popper 2019 American University, Washington College of Law

Rethinking Feres: Granting Access To Justice For Service Members, Andrew F. Popper

Andrew Popper

In 1946, the ancient wall of sovereign immunity gave way with the passage of the Federal Tort Claims Act (FTCA) opening the courthouse doors to persons harmed by those acting on behalf of the federal government. From the outset, FTCA liability was limited by the expansive discretionary function exception and other express limitations on civil actions. Unresolved in the FTCA was the fate of members of our armed forces injured by actions “incident to service” but outside of armed conflict. Four years later, in Feres v. United States, the Court addressed this question placing dramatic limits on civil tort claims ...


A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan S. Fortney 2019 Texas A&M University School of Law

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan S. Fortney

Susan S. Fortney

Using this broad connotation of justice, this Article questions whether many victims of legal malpractice are denied access to justice. In writing about the regulatory function of legal malpractice as a tort, Professor John Leubsdorf argues that legal malpractice relates to three important functions of the law of lawyering: “[D]elineating the duties of lawyers, creating appropriate incentives and disincentives for lawyers in their dealings with clients and others, and providing access to remedies for those injured by improper lawyer behavior.” Arguably, persons injured by lawyer misconduct are denied access to justice if our civil liability system does not provide ...


A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan S. Fortney 2019 Texas A&M University School of Law

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan S. Fortney

Susan S. Fortney

Using this broad connotation of justice, this Article questions whether many victims of legal malpractice are denied access to justice. In writing about the regulatory function of legal malpractice as a tort, Professor John Leubsdorf argues that legal malpractice relates to three important functions of the law of lawyering: “[D]elineating the duties of lawyers, creating appropriate incentives and disincentives for lawyers in their dealings with clients and others, and providing access to remedies for those injured by improper lawyer behavior.” Arguably, persons injured by lawyer misconduct are denied access to justice if our civil liability system does not provide ...


Suing Guns Out Of Existence?, Scott R. Thomas, Mystica M. Alexander 2019 Bentley University

Suing Guns Out Of Existence?, Scott R. Thomas, Mystica M. Alexander

Washington and Lee Law Review Online

In an effort to address gun violence, activists and victims’ families have filed lawsuits against the firearms industry seeking damage awards for violence committed by third party unrelated actors. Although Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005 intending to foreclose such lawsuits, since the time of the law’s passage, plaintiffs have brought claims against the firearms industry seeking refuge in an exception embedded in the statute. In a March, 2019 decision, Soto v. Bushmaster Firearms International, LLC, the Connecticut Supreme Court found that the Connecticut Unfair Trade Practices Act fell within an exception ...


First Transit V. Chernikoff, 135 Nev. Adv. Op. 32 (Aug. 1, 2019), Michael Holthus 2019 University of Nevada, Las Vegas -- William S. Boyd School of Law

First Transit V. Chernikoff, 135 Nev. Adv. Op. 32 (Aug. 1, 2019), Michael Holthus

Nevada Supreme Court Summaries

The Court clarified that (1) the heightened duty of care by common carriers only applies to transportation-related risks, and (2) when a common carrier is aware of a passenger’s disability, reasonable care includes providing safe transport that the circumstances reasonably require based on the disability.


When Torts Met Civil Procedure: A Curricular Coupling, Laura G. Dooley, Brigham A. Fordham, Ann E. Woodley 2019 Touro Law Center

When Torts Met Civil Procedure: A Curricular Coupling, Laura G. Dooley, Brigham A. Fordham, Ann E. Woodley

Laura Dooley

Law students must become adept at understanding how various bodies of law interact-supporting, balancing, and even conflicting with each other. This article describes an attempt to achieve these goals by merging two canonical first-year courses, civil procedure and torts, into an integrated class titled ‘Introduction to Civil Litigation’. Our most pressing motivation was concern that students who study civil procedure and torts in isolation develop a skewed, unrealistic view of how law works in the real world. By combining these courses, we hoped to teach students early in their careers to approach problems more like practicing lawyers, who must deal ...


Fair Precaution, Gregory C. Keating 2019 University of Southern California

Fair Precaution, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

This book chapter briefly sketches a general framework which explains why questions of fairness have a natural salience when the imposition of risks of harm by some on others is at issue, and it applies that conception to major aspects of negligence law. Fairness comes to the fore because risk impositions require us to compare what those who impose the risks stand to gain, and those upon whom they are imposed stand to lose. Determinations of due care reconcile competing claims of liberty and security, for a plurality of persons. Fairly reconciling liberty and security requires reconciling them on terms ...


Law Matters -- Less Than We Thought, Daniel M. Klerman, Holger Spamann 2019 USC Law School

Law Matters -- Less Than We Thought, Daniel M. Klerman, Holger Spamann

University of Southern California Legal Studies Working Paper Series

In a pre-registered 2×2×2 factorial between-subject randomized lab experiment with 61 federal judges, we test if the law influences judicial decisions, if it does so more under a rule than under a standard, and how its influence compares to that of legally irrelevant sympathies. The judges were given realistic materials and a relatively long period of time (50 minutes) to decide a run-of-the-mill auto accident case. We find weak evidence for the law effect, stronger evidence that rules constrain more than standards, and no evidence of a sympathy effect. Unexpectedly, we find that judges were more likely to ...


Between Absolutism And Efficiency: Reply To Professors Giestfeld, Gray, And Priel, Gregory C. Keating 2019 University of Southern California

Between Absolutism And Efficiency: Reply To Professors Giestfeld, Gray, And Priel, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

This paper replies to Professor Geistfeld, Grady, and Priel’s excellent comments on my article Principles of Risk Imposition and the Priority of Avoiding Harm, 36 Revus J. for Const. Th. & Phil. of Law, 7 (2018). Both my article and Professor Geistfeld’s, Grady’s and Priel’s papers are part of the “Symposium: Risk Regulation and Tort Law, A discussion with Gregory C. Keating.” This Reply completes the Symposium. It attempts, briefly, to develop two lines of argument. One line attempts to respond to the specific criticism that Professors Geistfeld, Grady, and Priel, make in the Comments. In part ...


Corrective Justice: Sovereign Or Subordinate?, Gregory C. Keating 2019 University of Southern California

Corrective Justice: Sovereign Or Subordinate?, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

The concept of “corrective justice” has figured prominently in debates over the formal structure and normative commitments of private law—especially tort law—over the past generation. This chapter organizes those debates around two very different conceptions of the role and significance of corrective justice in private law, especially tort law. One conception sees corrective justice as “sovereign” the other sees it as “subordinate”. On a subordinate conception, corrective justice is an aspect of the institution of tort law and it must be accounted for by an adequate theory of tort. On a sovereign conception, corrective justice is the master ...


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