Category Archives: Negligence
Stephen Bailey, ‘The limits of Fairchild: scientific impossibility’
PRINCIPLES It is clear law that, to establish causation in fact in a tort case, it must normally be shown that the defendant’s wrongful act or omission played a necessary part in bringing about the harm (commonly loss or damage, sometimes invasion of a protected right). The most significant exception comprises cases where it is […]
Douglas Brodie, ‘Stress at work: contemporary expectations and common law hurdles’
INTRODUCTION As is well known, an employer’s liability in negligence for psychiatric harm is limited by the guidelines set out by the Court of Appeal in Hatton v Sutherland (Hatton) and approved by the House of Lords in Barber v Somerset (Barber). It is though worth highlighting that Hatton is now 25 years old and […]
Henry Perritt, ‘Great Crypto Vanishing Act: Illusory Contracts and the Economic Loss Rule’
ABSTRACT Cryptocurrencies have gained respectability with enactment of the federal GENIUS Act, which lays a regulatory foundation for the safest type of cryptocurrency, stablecoins, while leaving significant uncertainty with respect to unbacked crypto assets like Bitcoin and other cryptomoney and crypto investments that do not come within the GENUIS Act’s scope. The vulnerability of cryptocurrencies […]
Northon Salomão De Oliveira, ‘Artificial Intelligence Liability and Tort Law: Causation, Foreseeability, and Legal Responsibility for Autonomous AI Harm’
ABSTRACT Tort doctrine allocates liability for machine-caused harm by asking what a reasonable manufacturer could have foreseen at the moment a product left its hands. That question assumes a product whose risk profile is fixed at the point of sale. Autonomous artificial intelligence systems violate this assumption: their decision-making capacities change after deployment through continued […]
Nicholas McBride, ‘Three Dangerous Ideas in the Law on Liability for Omissions in Negligence’
ABSTRACT This paper discusses three bases for finding a positive duty to act to save someone from harm that are recognised in English law – (i) assumption of responsibility; (ii) interference with rescue by another; and (iii) the demands of common humanity – and the potential problems created by these bases for finding a duty […]
Kip Hustace, ‘Negligence Law as Antidomination in the Second Gilded Age’
ABSTRACT Negligence is often cast as mere accident law, the crass, prosaic way we seek compensation for injuries inadvertently caused. It seems especially unconnected to democracy, epitomizing private law and operating far from public governance. This Article argues, however, that negligence litigation serves a vital role in democracy by realizing freedom as nondomination, republican theory’s […]
Northon Salomão De Oliveira, ‘Medical Malpractice, Artificial Intelligence and Physician Liability: Who Is Responsible for AI-Assisted Medical Errors?’
ABSTRACT Clinical artificial intelligence has moved from pilot deployment to routine use in radiology, pathology, triage, and diagnostic support, yet malpractice doctrine still asks a single question designed for a single actor: did the treating physician breach the standard of care of a reasonably prudent practitioner? This article argues that the persistence of that question, […]
Taifha Alexander, ‘Systemic Racism as Negligence’
ABSTRACT Stark racial disparities persist across societal institutions. People of color face disproportionate policing, harsher sentencing, higher rates of unemployment, and unequal access to education and healthcare. These disparities are not solely the result of individual racial animus, but of institutional policies that ignore the enduring structures of racial power. Rather than addressing these systemic […]
‘Gaming the Standard’
Ani B Satz and Liza Vertinsky, ‘Customary Corruption’, 66 William and Mary Law Review 693 (2025). The professional standard for medical malpractice, traditionally set by custom, has come under scrutiny. The most common concern is that custom may not reflect actual best practices, and health care providers may be reluctant to adopt those newer, better […]
Marco Cappelletti, ‘Remoteness in Negligence: A Critique and Reconstruction’
ABSTRACT This article reappraises remoteness of damage in negligence. It argues that, for initial harm, the scope-of-risk (SOR) framework provides a superior analytical tool than the foreseeability test. By tying liability to the risks that make conduct negligent, SOR explains features that foreseeability cannot, including the type of harm, the manner of its infliction, and […]