Category Archives: Tort
Daria Kim, ‘Artificial Intelligence Should Not Become a “Black Hole” for Human Agency in Tort Law’
ABSTRACT This article analyses the implications of the tendency to anthropomorphise artificial intelligence (AI) systems for tort law. It shows that the view of AI technology as ‘autonomous’, ‘unexplainable’ and ‘unpredictable’ can misguide the ‘fit-for-purpose’ assessment of the existing liability regimes. The analysis points out that risks and harm associated with AI technology are not […]
Charlotte Tschider, ‘Unto the (Data) Breach’
ABSTRACT Since the early 2000s, US courts have begun hearing ‘data breach’ liability cases, the inevitable result of a growing internet-connected technology infrastructure. The relatively recent development of case law signals a body of law in development, stunted by significant limiting factors that prevent the coalescence of legal principles. To date, no holistic empirical exploration […]
Nolan and Matulionyte, ‘Artificial Intelligence in Medicine: Issues when Determining Negligence’
ABSTRACT The introduction of novel medical technology, such as artificial intelligence (AI), into traditional clinical practice presents legal liability challenges that need to be squarely addressed by litigants and courts when something goes wrong. Some of the most promising applications for the use of AI in medicine will lead to vexed liability questions. As AI […]
W Bradley Wendel, ‘In the Duty Wars, I’m Switzerland’
ABSTRACT The ‘duty wars’ have been raging among tort scholars for some time, sparked by the Third Restatement’s deflationary approach to the duty element of the negligence cause of action. Defenders of the traditional approach to duty insist that it is necessary to ensure that tort law stays on the right side of the boundary […]
‘Negligence and Civil Maturity’
Veronica Rodriguez-Blanco, ‘Revising the Puzzle of Negligence: Transforming the Citizen Towards Civil Maturity’, 68 American Journal of Jurisprudence 105 (2023). This lively and concise article surveys aspects of the philosophy of corrective (classically, commutative) justice in the domain of the Law of Torts, specifically the law of negligence. It begins by outlining the central problem: […]
Rob Schwitters, ‘Instrumental Tort Law: Moral Technology or the Promise of a More Advanced Normative Underpinning?’
ABSTRACT In recent decades, tort law, and the theory on which it is based, have been the subject of intense debate. These debates focus on the underlying rationale of tort law and reflect tensions between instrumental and non-instrumental perspectives. Instrumental perspectives cover a wide variety of approaches in which tort law is seen as a […]
Li and Schütte, ‘The proposal for a revised Product Liability Directive: The emperor’s new clothes?’
ABSTRACT On September 28, 2022, the European Commission presented the long-awaited proposal for a revised Product Liability Directive (PLD). By adapting rules and concepts to digitalization and circular economy, the revised PLD aims to ensure that the damage that defective products caused can be remedied adequately. This paper provides a comprehensive analysis of the substantive […]
Erik Encarnacion, ‘Making Whole, Making Better, and Accommodating Resilience’
ABSTRACT The conventional story about compensatory damages is that they aim to make plaintiffs whole, but not better off. This make-whole ideal implies that courts should subtract material gains from compensatory awards because otherwise plaintiffs would be unjustly enriched. This article undermines this story in three ways. First, it highlights an oft-overlooked point: that sometimes […]
Zipursky and Goldberg, ‘Getting the Law Right: An Essay in Honor of Aaron Twerski’
ABSTRACT Written in honor of the great torts scholar Aaron Twerski, this article critically analyzes disturbing developments in New York negligence law as it applies to police who injure innocent bystanders. With the New York Court of Appeals’ 2022 decision in Ferreira v City of Binghamton as a focal point, it argues that Ferreira and […]
Carleen Zubrzycki, ‘Torts (?) Arms Races: Abortion and Beyond’
ABSTRACT The Supreme Court’s decision to eradicate constitutional protections for abortion has led to an array of new civil actions, from opponents and proponents of abortion alike, as both sides have turned to novel causes of action to promote their agendas. On the one side, states like Texas rely on expansive, bounty-hunter style causes of […]