Tort Law
Reconsidering Section 1983’s Nonabrogation of Sovereign Immunity
Katherine Mims Crocker
Abstract Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any “person” who violates federal rights. The U.S. Supreme Court has long held that “person” excludes states because […]
Civil Liability for Encouraging Bad Behavior: From Cheering at a Gang Rape to Promoting Opioid Abuse
James A. Henderson, Jr.
Abstract This Article examines the civil liability of actors who encourage others to behave badly, thereby causing harm. The analysis distinguishes between individual encouragers and business-entity encouragers. Individuals most often intend for the bad behaviors and the consequential harms to occur—witness cheerleaders at a gang rape. This Article advocates stern treatment of such mean-spirited malcontents. […]
“Go Sue Yourself!” Imagining Intrapersonal Liability for Negligently Self-Inflicted Harms
Written by: Lars Noah
Abstract 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 […]
F. Patrick Hubbard, "Sophisticated Robots": Balancing Liability, Regulation, and Innovation
Our lives are being transformed by large, mobile, “sophisticated robots” with increasingly higher levels of autonomy, intelligence, and interconnectivity among themselves. For example, driverless automobiles are likely to become commercially available within a decade. Many people who suffer physical injuries from these robots will seek legal redress for their injury, and regulatory schemes are likely […]
Sandra F. Sperino, The Tort Label
Courts and commentators often label federal discrimination statutes as torts. The tort label leads to reasoning that is superficial and not transparent about its motivations and goals. Courts do not engage in nuanced discussions about the kind of reasoning they are using or the values they are prioritizing in reaching the result. Importantly, the tort […]
Alex B. Long, The Forgotten Role of Consent in Defamation and Employment Reference Cases
As has been well documented, the fear of defamation suits and related claims lead many employers to refuse to provide meaningful employment references. However, an employer who provides a negative reference concerning an employee enjoys a privilege in an ensuing defamation action if the employee has consented to the release of information concerning the employee’s […]
Daniel J. DiMatteo, To Enforce a Privacy Right: The Sovereign Immunity Canon and the Privacy Act's Civil Remedies Provision After Cooper
In 2005, a joint investigation between separate government agencies revealed that Stanmore Cooper, a pilot, failed to disclose to the Federal Aviation Administration that he was HIV positive. Cooper sued the agencies in the United States District Court for the Northern District of California, claiming that they violated the Privacy Act by disclosing his medical records to one another without […]
Laura M. Beard, Small Claims, Big Recovery: Proposals For Settlement in Florida's Small Claims Courts Post-Nichols
After a debilitating car accident left Shannon Nichols injured and saddled with nearly $10,000 in medical bills, she sought only one thing—a road to recovery. Instead, Nichols faced a harrowing reality—after turning down a proposal for settlement from her insurer and losing at trial, not only did Nichols fail to receive reimbursement for her medical expenses, but […]
John Terwilleger, Can A Professional Limit Liability Contractually Under Florida Law?
Florida law is currently unclear on the issue of whether a professional may rely upon a limitation of liability clause in a professional services contract. Limitation of liability clauses are common in business contracts, especially in construction, a field that includes many professionals such as engineers and architects. While Florida has historically enforced limitation of liability clauses in professional services contracts, […]
Steven L. Schwarcz, Compensating Market Value Losses: Rethinking the Theory of Damages in a Market Economy
63 Fla. L. Rev. 1053 (2011)| | | ARTICLE :: The BP Deepwater Horizon oil spill and the Toyota car recalls have highlighted an important legal anomaly that has been overlooked by scholars: judicial inconsistency and confusion in ruling whether to compensate for the loss in market value of wrongfully affected property. This Article seeks […]
Benjamin J. Steinberg and Dwayne Antonio Robinson, Making BP's Blood Curd-Le: Duty, Economic Loss, and the Potential Cardozian Nightmare after Curd v. Mosaic Fertilizer
63 Fla. L. Rev. 1245 (2011)| | | ARTICLE :: The traditional economic loss rule precludes plaintiffs-such as those affected by the BP Deepwater Horizon oil spill-from recovering losses not resulting from damage to person or property. Most states have applied the rule to various circumstances and have carved out several exceptions over time, including […]
Jim Gash, The End Of An Era: The Supreme Court (Finally) Butts Out of Punitive Damages For Good
63 Fla. L. Rev. 525 (2011)| | | | INTRODUCTION :: It is finally over. The Supreme Court’s incursion into punitive damages jurisprudence has unceremoniously ended, but not before the Court, under the guise of substantive due process, erected a complex and constitutionally dubious set of rules in an effort to fix the heretofore-intractable multiple […]
Peter Nicolas, The Lavender Letter: Applying the Law of Adultery to Same Sex Couples and Same Sex Couples
63 Fla. L. Rev. 97 (2011)| | | | INTRODUCTION :: In the political and legal debate over same-sex marriage, references to the rights (or benefits or privileges) and responsibilities (or burdens or obligations) associated with marriage constitute a key weapon in the rhetorical battle. Most of the focus, however, has been on the “rights” […]
Sung Hui Kim, Naked Self-Interest? Why the Legal Profession Resists Gatekeeping
63 Fla. L. Rev. 129 (2011)| | | | ABSTRACT :: This Article asks and answers the following question: why does the legal profession resist gatekeeping? Or, put another way, why do lawyers resist duties that require them to act to avert harm to their corporate client, its own shareholders, and-possibly-the capital markets? While acknowledging […]
Susan D. Carle, A Social Movement History of Title VII Disparate Impact Analysis
63 Fla. L. Rev. 251 (2011)| | | | ABSTRACT :: This Article examines the history of Title VII disparate impact law in light of the policy and potential constitutional questions the Court’s recent decision in Ricci v. DeStefano raises. My analysis shows that, contrary to popular assumptions, disparate impact doctrine was not a last-minute, […]
Andrea M. Matwyshyn, Hidden Engines of Destruction: The Reasonable Expectation of Code Safety and the Duty to Warn in Digital Products
62 Fla. L. Rev. 109 (2010) | | | | INTRODUCTION :: This Article explores a seemingly straightforward question: to what extent is a consumer entitled to know how digital products work and the likelihood of digital harm? In previous work, I have explored this question in the context of contract law […]
Skyler McDonald, Defamation in the Internet Age: Why Roommates.com Isn't Enough to Change the Rules for Anonymous Gossip Websites
62 Fla. L. Rev. 259 (2010) | | | | INTRODUCTION :: Everyone “Googles” his or her own name once in a while. Imagine that a young woman looks herself up on the Internet one day, and finds that a person she does not know is posting offensive, false comments about her. […]
Lawrence A. Cunningham, Traditional Versus Economic Analysis: Evidence from Cardozo and Posner Torts Opinions
62 Fla. L. Rev. 667 (2010) | | | | CASE COMMENT ::This Article contributes a new approach and evidence to the longstanding debate concerning the relative merits of traditional legal analysis compared to contemporary economic analysis of law. Proponents of economic analysis offer to show law’s efficiency as a descriptive matter and prescribe using […]
Brent Steinberg, The Graves Amendment: Putting to Death Florida's Strict Vicarious Liability Law
62 Fla. L. Rev. 795 (2010) | | | | CASE COMMENT :: Ethan Ruby, a twenty-five-year-old Wall Street trader and former college athlete, was crossing Delancy Street in Manhattan when the driver of a Budget rental vehicle ran a red light. The Budget vehicle struck a van, which subsequently plowed into Ruby, hurling him […]
William Smith, Florida Premises Liability on Easements of Way: Liability for Injuries to Third Parties
62 Fla. L. Rev. 829 (2010) | | | | CASE COMMENT ::Imagine for a moment that you are the proud homeowner of a single-family home in Florida. Now imagine that you and three neighboring homeowners share a private driveway that straddles the property line between the four lots, allowing vehicular and pedestrian ingress and […]
John C. Jeffries Jr., What's Wrong with Qualified Immunity
62 Fla. L. Rev. 851 (2010) | | | | INTRODUCTION :: Qualified immunity protects government officers from damages liability for violating constitutional rights. It does not constrain injunctions, exclusion of evidence, or the defensive assertion of rights in government enforcement proceedings. Nor does it apply to all damage actions. Officers performing legislative, judicial, and […]
Steven Hetcher, The Kids Are Alright: Applying a Fault Liability Standard to Amateur Digital Remix
62 Fla. L. Rev. 1275 (2010) | | | | INTRODUCTION :: The term “remix” is used mainly in a digital context, although there is nothing inherently digital about remix. For instance, fan fiction, a widely discussed form of remix, has developed into an important cultural phenomenon in the past forty years, clearly exhibiting a […]
Benjamin J. Steinberg, Discounted Medical Bills and Conflicting Applications of Florida Statutes §768.76 as A Rule of Evidence
62 Fla. L. Rev. 1431 (2010) | | | | INTRODUCTION :: Marcie was a loving mother and a hard worker. But all of this was stripped away in an instant. Marcie lost both her daughter and her ability to work after being struck while walking home from school by a negligent driver. The resulting […]
Andrew S. Brown, Breaking Up and Making Out (Rich): Recommendations for Revision of the Bankruptcy Code Provisions Governing Break-Up Fees Used by Stalking Horse Bidders in § 363 Bankruptcy Asset Sales
62 Fla. L. Rev. 1463 (2010) | | | | INTRODUCTION :: Since December 2007, the United States has suffered through a “Great Recession.” The stock market had plummeted more than 40% from its peak as investors pulled their money from investments seeking safety under their mattresses. Companies and individuals have struggled as bankruptcy filings […]
David G. Owen, Bending Nature, Bending Law
62 Fla. L. Rev. 569 (2010) | | | | INTRODUCTION :: Human relationships with one another are extraordinarily complex, yet that complexity pales in comparison to their relationships with nature. Carbon, air, water, sunlight, and various organic nutrients provide us with the essential stuff of life. Yet lightning, floods, volcanoes, earthquakes, tornadoes, tigers, viruses, […]
Heather Howdeshell, Didn't my General Contractor Pay You? Subcontractor Construction Liens in Residential Construction Projects
61 Fla. L. Rev. 151 (2009) | | | | INTRODUCTION :: During the past eight years, the housing market boom carried the United States economy out of the 2000 recession. Due in part to low interest rates for mortgages and home-equity loans, Americans have constructed millions of custom-built homes and renovated their current homes […]
Patricia Alten, Gina: A Genetic Information Nondiscrimination Solution in Search of a Problem
61 Fla. L. Rev. 379 (2009) | | | | ABSTRACT :: “Genetic discrimination is unfair to workers and their families. It is unjustified-among other reasons, because it involves little more than medical speculation. A genetic predisposition toward cancer or heart disease does not mean the condition will develop. To address the potential use of […]
Ryan D. Watstein, Out of Jail and Out of Luck: The Effect of Negligent Hiring Liability and the Criminal Record Revolution On an Ex-Offender's employment prospects
61 Fla. L. Rev. 581 (2009) | | | | INTRODUCTION :: In January 1978, Ed Harbour picked up a seventeen-year-old hitchhiker on his Indiana truck-driving route. He brutally raped and beat her, leaving her near death in the sleeping compartment of his truck. Astonishingly, this took place merely one year after Harbour was convicted […]
Kristen Rasmussen, Shedding (False) Light: How the Florida Supreme Court's Rejection of the Tort Falsely Implies Protection for Media Defendants: Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008)
61 Fla. L. Rev. 911 (2009) | | | | INTRODUCTION :: Edith and Marty Rapp, a Jewish Florida couple, were married until Marty’s death in 2003. Bruce Rapp, Marty’s son and Edith’s stepson, worked for Jews for Jesus. Prior to Marty’s death, Bruce included the following account in a Jews for Jesus newsletter: I […]
Robert J. Rhee, Tort Arbitrage
60 Fla. L. Rev. 125 (2008) | | | | ABSTRACT :: The economic models of bargaining and tort law have not been integrated into a coherent theory that reflects the empirical world. This Article models the interaction of settlement dynamics and the economic theory of negligence. It shows that tort claims are systematically devalued […]
C. Douglas Floyd, In Honor of Walter O. Weyrauch: Three Faces of Supplemental Jurisdiction after the Demise of United Mine Workers V. Gibbs
60 Fla. L. Rev. 277 (2008) | | | | INTRODUCTION :: In United Mine Workers v. Gibbs, the Supreme Court rejected the narrow “cause of action” test announced in Hurn v. Oursler for what was then termed pendent-claim jurisdiction in favor of a broader “common nucleus of operative fact” standard. In subsequent cases, the […]
F. Patrick Hubbard, In Honor of Walter O. Weyrauch: Substantive Due Process Limits on Punitive Damages Awards: "Morals Without Technique"?
60 Fla. L. Rev. 349 (2008) | | | | INTRODUCTION :: In a series of cases over the last two decades, the Supreme Court has used the Due Process Clause to establish a procedural and substantive framework for awarding punitive damages. Initially, the substantive aspects of this framework were sufficiently flexible and clear that […]
Rosalie Berger Levinson, Reining in Abuses of Executive Power through Substantive Due Process
60 Fla. L. Rev. 519 (2008) | | | | ABSTRACT :: Although substantive due process is one of the most confusing and controversial areas of constitutional law, it is well established that the Due Process Clause includes a substantive component that “bars certain arbitrary wrongful government actions ‘regardless of the fairness of the procedures […]
Ben "Ziggy" Williamson, The Gunslinger to the Ivory Tower Came: Should Universities Have a Duty to Prevent Rampage Killings?
60 Fla. L. Rev. 895 (2008) | | | | INTRODUCTION :: On April 16, 2007, Seung Hui Cho, a Virginia Tech student, went on a rampage across the university’s campus. He murdered thirty- two people-twenty-seven students and five professors-before killing himself. Cho’s rampage was not only the worst mass shooting on an American university […]
Simon A. Rodell, False Statements v. Free Debate: Is the First Amendment a License to Lie in Elections?
60 Fla. L. Rev. 947 (2008) | | | | TEXT :: Rickert v. Public Disclosure Commission, 168 P.3d 826 (Wash. 2007) The petitioner, Marilou Rickert, ran as a Green Party candidate for a seat in the Washington state senate. During her campaign, Rickert distributed a brochure that falsely represented the voting record of her […]
Larry Dougherty, Does a Cartel Aim Expressly? Trusting Calder Personal Jurisdiction when Antitrust Goes Global?
60 Fla. L. Rev. 915 (2008) | | | | INTRODUCTION :: Suppose your law firm represents CrabApple, the large, California-based manufacturer of the BuyPod, a portable digital music player. CrabApple also sells songs from its online music store, BuyTunes, for use on the BuyPod. One morning, a class-action antitrust lawsuit lands on your desk. […]
Benjamin J. Robinson, Distilling Minimum Due Process Requirements for Punitive Damages Awards
60 Fla. L. Rev. 991 (2008) | | | | TEXT :: Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007) An Oregon jury found that Jesse Williams, a long time consumer of Petitioner’s Marlboro cigarettes, died because he consumed those cigarettes. The jury was convinced that Williams consumed Petitioner’s cigarettes because he believed […]
Alexandra D. Lahav, The Law and Large Numbers: Preserving Adjudication in Complex Litigation
59 Fla. L. Rev. 383 (2007) | | | | ABSTRACT :: This Article describes the transfer of power to regulate tortfeasors from the legislature to private parties through the medium of the court system and proposes that instead of privatizing mass torts administration courts should humanize it. The federal courts are faced with large […]
Brandon Faulkner, Hacking into Data Breach Notification Laws
59 Fla. L. Rev. 1097 (2007) | | | | INTRODUCTION :: On March 23, 2007, a news agency announced that the police department in Gainesville, Florida, arrested six individuals on charges that they had stolen credit card data from a corporation’s database and purchased more than $ 8 million in gift cards and electronics […]
Matthew J. Richardson, Clarifying and Limiting Fraudulent Joinder
58 Fla. L. Rev. 119 (2006) | | | | INTRODUCTION :: Defendants in state court may properly remove civil actions to federal court on the basis of diversity jurisdiction. However, before the defendants remove the action, plaintiffs may have already attempted to defeat diversity jurisdiction by having joined a local or nondiverse defendant who […]
Benjamin H. Barton, Tort Reform, Innovation, and Playground Design
58 Fla. L. Rev. 265 (2006) | | | | INTRODUCTION :: The playground at the St. James Episcopal Church is a nice, short walk from my home in Knoxville, Tennessee. The church generously allows neighborhood kids to use it, and with two young daughters (ages two and four), I spend quite a bit of […]
Carl J. Circo, Contract Theory and Contract Practice: Allocating Design Responsibility in the Construction Industry
58 Fla. L. Rev. 561 (2006) | | | | INTRODUCTION :: How much does legal theory matter to lawyers who advise clients concerning building design and construction contracts? Theory thrives in contract literature, as philosophers and legal scholars search for justification, essence, coherence, and synthesis. Lawyers litigating contract cases also invoke and confront theory […]
Janelle A. Weber, Don't Drink, Don't Smoke, Don't Download: Parents' Liability for their Children's File Sharing
57 Fla. L. Rev. 1163 (2005) | | | | INTRODUCTION :: When Darlene Emanski subscribed to America Online (AOL), she thought she was providing her teenage daughter with a fun and convenient means of researching school projects, communicating with friends, and listening to music now and then. The Central Florida small business owner never […]