Wednesday, January 18, 2017
Thursday, January 12, 2017
Wednesday, December 14, 2016
Agnieszka McPeak (Toledo) has posted to SSRN Sharing Tort Liability in the New Sharing Economy. The abstract provides:
The new sharing economy is forcing policymakers to reexamine current legal structures for several highly regulated industries, including taxi services. But in addition to regulation, tort law’s ability to adapt to the new sharing economy is an equally important concern, and one that few scholars have examined to date.
Although many sharing-economy companies, like ridesharing service Uber, merely purport to connect individuals to each other for the purposes of exchanging specific services, many of these companies are monetized, for-profit businesses that exert some level of control over the underlying commercial transaction. When an individual service provider, like an Uber driver, commits a tort, the victim may be under-compensated if that individual provider alone is liable. Holding the sharing-economy company vicariously liable may be appropriate for ensuring fairness for tort victims.
Fortunately, pre-existing tort principles — particularly vicarious liability concepts of respondeat superior, liability for independent contractors, and joint enterprise liability — already provide the framework for applying retrospective common law remedies in the sharing-economy context. Even though sharing-economy companies challenge the status quo with their innovative and non-traditional business approaches, pre-existing principles suffice to clarify tort liability in this new context. By liberally using the basic analysis and underlying policy rationales of existing vicarious liability concepts in particular, courts can ensure fairness under modern tort law, and policymakers can proceed with a holistic understanding of how retrospective remedies are well-poised to address some of the unique issues raised by the new sharing economy.
She's also blogging at Prawfs.
Thursday, December 1, 2016
Tuesday, November 1, 2016
Thursday, September 29, 2016
Monday, August 22, 2016
Friday, July 1, 2016
Thursday, May 26, 2016
Tuesday, April 26, 2016
Monday, March 28, 2016
Wednesday, March 9, 2016
Wednesday, February 24, 2016
Friday, January 29, 2016
Monday, January 18, 2016
At Torts Today, George Conk has posted a piece by David Schorr (Tel Aviv University) on Holmes's decision in Missouri v. Illinois (1906), in which Missouri sued Illinois for Chicago's reversal of the Chicago River. Holmes ruled for Missouri essentially on causation (and Schorr argues, a bit of distributive justice).
Wednesday, November 25, 2015
I referenced the Feres Doctrine yesterday. Over at Bill of Health, there is a post about an amicus brief filed by Alex Stein and Dov Fox urging the Supreme Court to grant cert in a Tenth Circuit case, Ortiz v. U.S.:
When a civilian spouse of a serviceman receives negligent prenatal care from military doctors and delivers an injured baby as a result of that malpractice, there is no question that Feres immunity does not apply and that the baby can sue the United States under the FTCA. When military medical malpractice injures the baby of a servicewoman, this baby should be equally able to obtain redress under the FTCA. A system that would single out the civilian children of servicewomen for adverse treatment discriminates against women who serve in the armed forces. . . To interpret the FTCA as the Tenth Circuit did permits discrimination between these two classes of similarly situated victims of military malpractice and violates fundamental principles of equal protection.
The brief is here: Download OrtizAmicusSteinFox
Thursday, November 19, 2015
On Monday, I posted about defendants attempting to use med mal tort reform protections to make it harder to recover for falls in hospitals. In a similar vein is a recent Alabama case in which a doctor attempted to invoke a prohibition against discovering and introducing at trial evidence of other malpractice to avoid the admission of the evidence as modus operandi (FRE 404(b)(2) or state equivalent). The claim, however, was that the doctor had sexually assaulted the plaintiff during the course of medical treatment. In Ex parte Vanderwall, — So.3d —- 2015 WL 5725153 (Ala. 2015), the Alabama Supreme Court held the prohibition only applies in med mal cases, which do not include cases of sexual assault. The plaintiff was, therefore, able to use past instances of sexual misconduct incidental to medical treatment as proof that the doctor responsible for that misconduct assaulted her as well. Alex Stein has more blogging at Harvard's Bill of Health.
Tuesday, November 17, 2015
Thursday, November 12, 2015
Friday, November 6, 2015
Antonin I. Pribetic (Himelfarb Proszanski) and Marc J. Randazza (Randazza Legal Group) have posted to SSRN 'War of the Words': Differing Canadian and American Approaches to Internet Defamation. The abstract provides:
This article provides a comparative analysis of differing approaches to Canadian and American internet defamation law. It begins with a discussion of the elements of a cause of action and available defences. It then canvasses jurisdiction and choice of law issues. Following a review of notice requirements and limitation periods, it provides the mechanics for unmasking anonymous defendants – John Doe applications, Norwich Pharmacal orders, injunctive relief. Finally, the paper outlines the key legal issues in the recognition and enforcement of Canadian and American cyberlibel judgments abroad, within the context of the libel tourism debate.