Existing Tort Law Research Articles

Destined to Deceive: The Need to Regulate Deepfakes with a Foreseeable Harm Standard

Political campaigns have always attracted significant attention, and politicians have often been the subjects of controversial—even outlandish—discourse. In the last several years, however, the risk of deception has drastically increased due to the rise of “deepfakes.” Now, practically anyone can make audiovisual media that are both highly believable and highly damaging to a candidate. The threat deepfakes pose to our elections has prompted several states and Congress to seek legislative remedies that ensure recourse for victims and hold bad actors liable. These recent attempts at deepfake laws are open to attack from two different loci. First, there is a question as to whether these laws unconstitutionally infringe on deepfake creators’ First Amendment rights. Second, some worry that these laws do not adequately protect against the most harmful deepfakes. This Note proposes a new approach to regulating deepfakes. By delineating a “foreseeable harm” standard, with a totality-of-the-circumstances test rather than a patchwork system of discrete elements, this Note addresses both major concerns. Not only is a foreseeable harm standard effective, workable, and constitutionally sound; it is also grounded in existing tort law. Moreover, a recent Supreme Court decision pertaining to false statements and the First Amendment, United States v. Alvarez, lends support to such a standard. Adopting this standard will combat the looming threat of politically oriented deepfakes while preserving the constitutional right to free speech.

Wprowadzenie systemu kompensacji no-fault w słoweńskim deliktowym prawie medycznym

The National Strategy for Quality and Safety in Healthcare 2022–2031, drafted in November 2021 from the Slovenian Ministry of Health, sets out, i.a., the basic foundations of a no-fault compensation model for medical errors. No-fault compensation is a new concept in Slovenian (medical) tort law. Therefore, the purpose of this paper is to determine whether a no-fault compensation regime, as set out in the Strategy, is at all necessary and reasonable in the light of the existing tort law regime and, in particular, whether such a regime would actually improve the patient’s position in tort legal relationships due to medical errors and facilitate their options. By our findings, the Strategy does not provide a sufficiently compelling rationale for intervening in the existing compensation legal regime. The Slovenian case law has already established measures to compensate for the disturbed parity between the legal positions of the patient and the healthcare organization in the assessment of medical errors.

Mass Tort Jurisprudence and Critical Epistemologies of Risk: Dissolution of Public–Private Divide in the Indian Mass Tort Law

The Bhopal gas tragedy essentially marked the beginning of mass tort jurisprudence in India. When the US courts dismissed the consolidated lawsuit resulting out of the Bhopal disaster and returned it to India for judicial determination, the Indian legal system was confronted with one of the biggest challenges it had ever faced. The difficulty arising out of the unprecedented extent and intensity of the event was compounded by a lack of prior experience of the Indian legal system in dealing with mass tort cases. Bhopal brought out the inadequacy of the then-prevalent traditional common law of tort in dealing with the legal challenges posed by the case, thus, underscoring the need for modifying the existing tort law doctrine. The most significant modification introduced to the Indian tort law in the wake of Bhopal was the dissolution of public-private law divide through the invocation of the doctrine of parens patriae and the enunciation of the principle of absolute liability. The primary thesis of this paper is that the rationale and need underlying this dissolution of public-private law divide can be well understood in the light of critical social scientific studies on risk. As the concept of risk is inextricably linked with anthropogenic mass disasters, the critical epistemologies of risk provide strong empirical and normative foundations for the development of a distinct mass tort jurisprudence, much needed in today’s post-modern ‘risk society’.

Securing America's Future Energy Report: Professional Liability after Quantum Leaps in Technology: The Advent of Autonomous Vehicles and Technology's Uncertain Fit within Existing Tort Law, Abbreviated Summary

Even before the Model-T’s release, the pervasive clash between “technocratic regulatory aspirations and the legal culture” became the locus of political debate, darling of scholarly intrigue and thorn in industry’s side. This ‘clash’ is a function of both rapid innovation and creeping legal development in the United States. Historically, government reluctance to adapt to, and evolve with, technological progress is compounded when radical innovations eventually (and predictably) become household items. In fact, “[t]he problem may not be that law misunderstands and misapplies science, but that we have misunderstood law.”Because the existing legal framework is adaptable, government can usher in new advanced technologies without breaking the current legal system. If government chooses a complimentary liability scheme, the path will safely facilitate creations and ultimately enhance quality of life on a national scale.The liability model that best answers the difficult policy questions accompanying new technologies exists. Congress’s practical application of the liability concepts will introduce autonomous vehicles to the United States, foster widespread adoption, and keep pace with international markets.

Professional Liability after Quantum Leaps in Technology: The Advent of Autonomous Vehicles and Technology's Uncertain Fit within Existing Tort Law

The clash between “technocratic regulatory aspirations and the legal culture” that pervades the technology industry has been the locus of political debate, the darling of scholarly intrigue, and the thorn in industry’s side since before the release of Henry Ford’s Model-T. This paper embraces the idea that the 'clash' is not necessarily a problem of rapid innovation, but one of slowly developing law in the United States. The historically-proven reluctance of government to adapt to, and evolve with, progressing technologies is belied by the predictable eventuality that such radical innovations are deemed household items. Jerry Mashaw articulated this point, stating: 'The problem may not be that law misunderstands and misapplies science, but that we have misunderstood law.' This paper proceeds on the assumption that there is a workable adaption of the existing legal framework to usher in this new era of technological advancement. Government needs but choose a complimentary path to facilitate safely these creations which ultimately enhance the quality of human life.

Optimal Liability for Terrorism

This paper analyzes the normative role for civil liability in aligning terrorism precaution incentives, when the perpetrators of terrorism are unreachable by courts or regulators. We consider the strategic interaction among targets, subsidiary victims, and terrorists within a sequential, game-theoretic model. The model reveals that, while an "optimal" liability regime indeed exists, its features appear at odds with conventional legal templates. For example, it frequently prescribes damages payments from seemingly unlikely defendants, directing them to seemingly unlikely plaintiffs. The challenge of introducing such a regime using existing tort law doctrines, therefore, is likely to be prohibitive. Instead, we argue, efficient precaution incentives may be best provided by alternative policy mechanisms, such as a mutual public insurance pool for potential targets of terrorism, coupled with direct compensation to victims of terrorist attacks.

An Inquiry into the Merits of Redistribution through Tort Law: Rejecting the Claim of Randomness

This Article responds to one challenge to the aspiration to incorporate distributive-egalitarian sensitivity into tort law. Arguably, any attempt to effect redistribution by means of tort law is bound to be random and, hence, unjust. There are two facets to the randomness charge: partiality of the participants and crudeness of the distributive result. I argue that the randomness charge, in both its aspects, does not provide a convincing reason to oppose infusing tort law with distributive-egalitarian sensitivity. The charge of randomness is based on two factual assumptions and one normative claim: namely, that existing tort law has no significant redistributive effect; that redistribution through tort law is especially susceptible to the charge of randomness; and that random progressive redistribution is less fair than the status quo distribution. In this Article, I challenge all three claims. I first argue that existing tort law has inevitable distributive consequences and that these consequences are predominantly regressive. I then raise four challenges to the assumption that distribution through tort law is partial, arguing that either such distribution is not partial at all or that it is no more partial than the distribution produced by alternative mechanisms: “localized distributive justice”; “participation through insurance”; “the complement thesis”; and “no comparative randomness.” Next, I develop a methodology for comparing the fairness of the post-tort litigation redistribution with that of the status quo distribution. This methodology is based on the respective proximity of these distributions to the reference point of society’s ideal distributive scheme. Applying this methodology, I argue that partial progressive redistribution is fairer than the status quo distribution. Regarding the problem of partiality of participants, I maintain that any injustice that arises from treating differently members of the same group is overridden by the more egalitarian distribution achieved between the different groups, namely, that the inter-group justice outweighs the intra-group injustice. With respect to the problem of the crudeness of the distributive result, I posit that adopting a guideline for redistribution that is “pro-disadvantaged” rather than “anti-well-to-do” ensures the superiority of the partial progressive redistribution relative to the status quo. Furthermore, even under a more radical “anti-well-to-do” benchmark for redistribution, that superiority might still be maintained. Finally, I apply my three claims to the context of gender inequality and lost earnings. I argue that the theoretical framework developed in this Article provides support for gender-neutral damages awards for lost earnings.

The effects of information on producer and consumer incentives to undertake food safety efforts: A theoretical model and policy implications

AbstractFood safety presents a double moral hazard problem. This author develops a model of food safety where consumers and producers undertake unobservable preventive measures to reduce the probability of a food‐borne illness. Losses from a food‐borne illness are shared by consumers and producers according to the existing tort law. We characterize the optimal solution and show that this risk‐sharing arrangement and imperfect information create an incentive problem where suboptimal levels of precautions by producers and consumers are attained in a noncooperative Nash equilibrium solution. We conduct comparative static analysis to trace out the effects of changes in the size of losses, the degree of orientation of the legal system, and government regulation of information provision on precautions undertaken by consumers and producers. [EconLit citations: L150, Q180.] © 2003 Wiley Periodicals, Inc. Agribusiness 19: 29–42, 2003.

The medicolegal aspects of automated anaesthesia records

This chapter examines the legal aspects of automated anaesthesia records. It is important to look first at why the process of automatically recording information, as opposed to manually recording the same information, should generate any additional legal concerns at all. There are radically disparate viewpoints on the matter. One leading commentator has concluded 'Thus, with the current generation of automated anesthesia records, the prime disadvantage is medicolegal' (Eichhorn, 1988); while another suggests that 'Anesthesiologists and their hospitals may be held liable for failing to acquire or use computers' (MacKenzie, 1984). It appears that we are damned if we do and damned if we don't. The only apparent choice is that we may choose our poison. I do not subscribe to either of these viewpoints. I do not believe that there are significant medicolegal obstacles to the use of automated records, and I do not believe that an anaesthetist will be successfully sued under existing tort law for negligently failing to use a computer. There are, however, issues that must be understood and addressed in order to distinguish an asset from a liability. There are also several issues arising from the database retrieval aspects of computerized records which are indeed distinct from manual systems. In order to sort out the issues, I will examine the role of records in the outcome of malpractice cases, the 'standards' for record-keeping in anaesthesiology practice, the interpretation of these standards from the point of view of an 'expert witness', the implication of artefacts, and the implication of electronic database management. It is important for the reader to keep in mind that the legal system discussed here is that of the USA, where specific malpractice laws vary from state to state within the overall context of an adversarial system that is quite distinct from most European legal systems. With this caveat in mind, we must first consider the 'rules of engagement' in the malpractice battle.

CERCLA Natural Resource Damages: Uses and Misuses of Economic Theory

Prior to CERCLA, litigation under existing tort law was widely perceived as an ineffective means of imposing penalties on dischargers of hazardous waste. In drafting CERCLA, Congress created a cause of action for state and federal trustees against a broad class of defendants, and introduced the concept of natural resource damages. The intent was clearly to insure compensation for all injury, past and future, regardless of the identity of the victim. This is consistent with conventional economic analysis, which defines damage as the net diminution in the present value of all services provided by a natural resource. When the regulations implementing the Act were issued, however, they conflicted with economic theory on several grounds, misapplying some concepts and omitting others. As they now stand, the regulations severely constrain both the scope and reach of natural resource damages.

Designated compensable events: a no-fault approach to medical malpractice.

It has been seven years since the last major medical malpractice crisis, when the cost of liability insurance rose so astronomically that several important insurers withdrew from providing insurance coverage to physicians and health care institutions. Government and private policy groups at that time established committees to evaluate the medical malpractice crisis and to recommend changes that would bring about an amelioration of the adverse financial and health care features surrounding medical malpractice. The United States Department of Health, Education and Welfare published its Report of the Secretary's Commission on Medical Malpractice in 1973, documenting the extent of the crisis and recommending that alterations be made in the existing tort law to alleviate some of the financial burdens brought on by the increasing number of cases. In 1977, the Institute of Medicine of the National Academy of Sciences formed a Steering Committee on Medical injury Compensation that reviewed some of the special problems of the medical malpractice system and published its report.

Slumlordism as a Tort: A Brief Response

ROFESSORS Blum and Dunham begin their comment by accusing us of having a new idea. We plead guilty.' Our purpose was to demonstrate that accepted principles in analogous areas of law would support a slumlordism action, not to argue that tort law as presently applied would do so. Indeed, our basic intent was to underscore the myopia of existing tort law perspectives. They also charge us with creating a theory which might be used by Mississippi Delta sharecroppers or braceros to attack the appalling (their word) situation in which they live; or by those who have been cheated by unscrupulous merchants. We plead guilty again, this time with enthusiasm.2