‘The Rise and Rise of Transformative Use’

“I’m a big fan of transformative use analysis in fair use law, except when I’m not. I think that it is a helpful guide for determining if the type of use is one that we’d like to allow. But I also think that it can be overused – especially when it is applied to a different message but little else …” (more)

[Michael Risch, Written Description, 19 March]

Rebecca Crootof, ‘The Internet of Torts’

The proliferating internet-connected devices that constitute the ‘Internet of Things’ (IoT) grant companies unprecedented control over consumers’ use of property, often at the expense of consumer safety. Companies can now remotely – and, with algorithmic enforcement, automatically – alter or deactivate items, a practice that causes foreseeable property damage and even bodily injury when an otherwise operational car, alarm system, or implanted medical device abruptly ceases to function.

Even as the potential for harm escalates, contract and tort law work in tandem to shield IoT companies from liability. Exculpatory clauses limit both contract and tort remedies; disclaimers and express warranties bar implied warranty claims; and contractual notice of remote interference precludes common law tort suits. Meanwhile, absent a better understanding of how IoT-enabled injuries operate, judges are likely to apply products liability and negligence standards narrowly. In short, civil liability for this 21st century version of harmful remote action is not appropriately allocated by our 20th century regime.

In the wake of the Industrial Revolution, courts limited corporate liability by creating the modern version of ‘negligence’; the rise of mass production and cross-country transportation prompted the products liability revolution. Once again, a new technology has altered social and power relations between industry and individuals, creating a liability inflection point where we must decide who should bear the costs going forward. This Article proposes various reforms to expand corporate civil liability that advocates, judges, and policymakers should consider during this critical regulatory window.

Crootof, Rebecca, The Internet of Torts (February 26, 2019). Duke Law Journal, volume 69, 2019.

Goldman and Silbey, ‘Copyright’s Memory Hole’

There is growing interest in using copyright to protect the privacy and reputation of people depicted in copyrighted works. This pressure is driven by heightened concerns about privacy and reputation on the Internet, plus copyright’s plaintiff-favorable attributes compared to traditional privacy and reputation torts. The Constitution authorizes copyright law because its exclusive rights benefit society by increasing our knowledge. Counterproductively, to advance privacy and reputation interests, copyright law is being misdeployed to suppress socially valuable works. This results in ‘memory holes’ in society’s knowledge, analogous to those discussed in George Orwell’s dystopian novel 1984. By referencing Constitutional considerations, the Article identifies some limited circumstances where copyright’s goals are benefited by considering privacy and reputational interests. In other circumstances, treating copyright law as a general-purpose privacy and reputation tort harms us all.

Goldman, Eric and Silbey, Jessica M, Copyright’s Memory Hole (2019). Brigham Young University Law Review, forthcoming.

‘Legal Theory Lexicon: Common Law’

“Law students encounter the notion of ‘common law’ very early in their legal education, frequently in an orientation program or on the first day of classes. The standard law school curriculum includes courses in contracts, property, and torts, which are ‘common law’ subjects. And the reading of common law cases as presented in casebooks is the primary way in which students learn the doctrinal structure (the legal norms) of these common law subjects. But what is the common law? …” (more)

[Lawrence Solum, Legal Theory Blog, 17 March]

‘No Tort of Harassment for You!’

“The common law in Ontario has proven relatively adept at developing new torts, in particular in the area of privacy law, to change and adapt to relatively stagnant or unsatisfactory statutory developments. Although the tort of intimidation has long been recognized as giving rise to a cause of action, as affirmed in cases such as Tran v University of Western Ontario, the status of the tort of harassment has been much more divided. …” (more)

[Omar Ha-Redeye, Slaw, 17 March]

Dalié Jiménez, ‘Ending Perpetual Debts’

Consumer debts in the United States can effectively live (and grow) forever: most statutes of limitations do not extinguish them; they can morph into relatives’ obligations after the debtor’s death; and they sometimes rise from the grave even after they have been paid. All the while, interest and fees accrue. There is one sure way to extinguish most debts, however, and that is by filing bankruptcy. This Article explores the practical, philosophical, and economic effects of the current system. It proposes a form of ‘automatic bankruptcy’ for consumer debts: a federal discharge that, by operation of law, would extinguish debts (roughly) seven years after a default, or seven years after a judgment. The Article explores additional features of this proposal including ones designed to ensure it is self-executing, and others that mirror features of the Fair Credit Reporting Act and the discharge provisions of the Bankruptcy Code.

Jiménez, Dalié, Ending Perpetual Debts (2018). Houston Law Review, volume 55, no 3, 2018.

Harris and Peeples, ‘Medical Malpractice Litigation in North Carolina: What Claims Get Paid, and for How Much?’

Medical malpractice litigation lends itself to empirical research. This article draws on a unique dataset consisting of all the filed cases closed by a major medical malpractice insurer over a two-year period. Using this data, this article addresses two questions. First, what factors drive indemnity payments made in settlement of claims? Second, what factors drive the amount of those indemnity payments? We were able to assess a number of potential factors affecting case resolution that are rarely available to researchers. We find that the insurer’s internal assessment of potential liability, along with the number of experts designated by the parties, is a strong predictor of payment. We also find that once the decision to seek a settlement is made by the insurer, non-medical factors become significant. Specifically, the plaintiff’s age and marital status, as well as the number of experts designated by the plaintiff, are the most important predictors of the amount of payment. The severity of the plaintiff’s injury is not a reliable predictor of the amount of payment.

Catherine Harris and Ralph Peeples, Medical Malpractice Litigation in North Carolina: What Claims Get Paid, and for How Much?, 87 University of Cincinnati Law Review 645 (2018).

Guttel and Porat, ‘Tort Liability and the Risk of Discriminatory Government’

When individuals and firms fail to invest in adequate care, the government often steps in, taking costly measures to restore safety or mitigate harm. Under such circumstances, a question arises as to whether the government can demand recovery for its costs. For many years, the answer has been negative; tort law has persistently refused to render negligent individuals and firms liable for governmental expenditures. Yet recently, the law changed markedly. Recognizing that the no-liability regime subsidizes faulty behavior, an increasing number of jurisdictions have established the right of public entities to sue for reimbursement of costs. Against this backdrop, this Article shows that the government’s right of recovery often has little effect on individuals’ and firms’ incentives to prevent harm. More important and disturbing, however, this right distorts governmental incentives to provide equal services to all. Particularly, given the right to demand compensation for its expenditures, the government will favor the rich at the expense of the poor. This risk is not theoretical but real and troubling. The Article proposes a legal regime that induces individuals and firms to prevent harm optimally, while eliminating the government’s incentives to discriminate.

Guttel, Ehud and Porat, Ariel, Tort Liability and the Risk of Discriminatory Government (March 8, 2019). 87 University of Chicago Law Review (2020, forthcoming); University of Chicago Coase-Sandor Institute for Law and Economics Research Paper No 870; U of Chicago, Public Law Working Paper No 698.

Maryam Jamshidi, ‘How the War on Terror Is Transforming Private US Law’

In thinking about the War on Terror’s impact on US law, what most likely comes to mind are its corrosive effects on public law, including criminal law, immigration, and constitutional law. What is less appreciated is whether and how the fight against terrorism has also impacted private law. As this Article demonstrates, the War on Terror has had a negative influence on private law, specifically on torts, where it has upended long-standing norms, much as it has done in the public law context.

Case law construing the private right of action under the Antiterrorism Act of 1992, 18 USC § 2333(a) (‘Section 2333’), shines the brightest light on this trend. Using Section 2333, private individuals can bring civil suits against third-parties for injuries purportedly resulting from violence committed by terrorist groups. In deciding these cases, which sound in intentional torts, many courts have treated Section 2333 as a critical component of US counterterrorism efforts. This marriage of tort law and national security has transformed Section 2333 into anything but the traditional tort Congress intended it to be. In the process, a line of jurisprudence has developed under the statute, which carries negative implications for the discipline of torts writ large, reinforces the War on Terror’s ideologically-infused narratives about terrorism itself, and ensnares defendants with little to no meaningful connection with terrorism or terrorist groups.

These consequences, which have largely gone unnoticed by both tort scholars and critics of US counterterrorism efforts, are important ones. They highlight the ways America’s never-ending war has not only undermined public, but also private, law, and underscore how torts, in particular, have helped perpetuate the political ideology at the root of that battle. This Article seeks to uncover and explain these trends, for the first time, and offer some preliminary solutions.

Maryam Jamshidi, How the War on Terror Is Transforming Private US Law, 96 Washington University Law Review 559 (2018).