Table of Contents

The Contractually Based Economic Loss Rule in Tort Law: Endangered Consumers and the Error Of East River Steamship

Mark Geistfeld, New York University School of Law

Small Comfort for Bereaved Children. A Cautious Response to Loss of Parental Care Claims – Minister of Police v Mboweni

Judy Parker, University of KwaZulu-Natal - Faculty of Law (Howard College and Pietermaritzburg Campuses)
FN Zaal, University of KwaZulu-Natal - Faculty of Law (Westville Campus)

Tort Reform through the Backdoor: A Critique of Law & Apologies

Yonathan A. Arbel, Harvard Law School, Villanova University - School of Law
Yotam Kaplan, Hebrew University of Jerusalem, Harvard University

Tainted: Food, Identity, and the Search for Dignitary Redress

Melissa Mortazavi, University of Oklahoma - College of Law

Legal Liability in China: A Brief History and Current Practice

Douglas Jacob Bujakowski, Independent

Bank Liability Under the Antiterrorism Act: The Mental State Requirement Under § 2333(a)

Olivia Chalos, Fordham University, School of Law, Students


TORTS & PRODUCTS LIABILITY LAW eJOURNAL

"The Contractually Based Economic Loss Rule in Tort Law: Endangered Consumers and the Error Of East River Steamship" Free Download
DePaul Law Review, Vol. 65, No. 393, 2016
NYU School of Law, Public Law Research Paper No. 16-39
NYU Law and Economics Research Paper No. 16-35

MARK GEISTFELD, New York University School of Law
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The rule of strict products liability has been widely adopted in the U.S., subjecting manufacturers and other product distributors to strict tort liability for physical harms proximately caused by defective products. The scope of strict products liability has also been widely limited to bar tort recovery for cases in which the defect only damaged the product itself, causing pure economic losses such as repair costs and lost profits. In these cases, a growing majority of courts have followed the approach charted by the U.S. Supreme Court in East River Steamship Corp. v. Transamerica Delavel Inc., which barred tort recovery for stand-alone economic harms to ensure that contract law does not “drown in a sea of tort.? Relying on this reasoning, other courts have applied the rule to dismiss tort claims for pure economic losses caused by the negligent performance of a service contract.

As specified by East River Steamship, the economic loss rule is fully defined by two formal properties. If the form of the parties’ relationship permits the allocation of loss by contracting, and if the form of the alleged injury is for pure economic loss, then the rule bars tort recovery. Across the full range of tort cases, however, these two formal properties do not always determine whether tort law permits recovery for pure economic loss, creating a body of case law that appears to be in considerable disarray.

The economic loss rule is routinely justified with a contracting rationale, yet that rationale has never been substantively developed. Doing so shows that the availability of tort recovery for pure economic losses depends on whether the ordinary consumer has the requisite information to protect the relevant set of interests by contracting. In considering the allocation of liability for economic losses that only implicate economic interests in lost profits and the like, the ordinary consumer is sufficiently well informed to protect these interests by contracting. But as established by the substantive rationale for strict products liability, the ordinary consumer is unable to make informed contractual decisions about product risks threatening physical harm. The same contracting problem extends to certain types of pure economic loss, including the financial costs of medical monitoring and asbestos abatement. Consequently, the substantive contracting rationale justifies an intermediate economic loss rule that permits endangered consumers to recover tort damages for these types of pure economic loss while otherwise denying tort recovery for disappointed product users. The same conclusion applies to service contracts. This contractually based intermediate economic loss rule explains the full body of case law while being substantively consistent with the widely adopted rule of strict products liability, unlike the East River Steamship formulation.

"Small Comfort for Bereaved Children. A Cautious Response to Loss of Parental Care Claims – Minister of Police v Mboweni" Free Download
Journal of Contemporary Roman-Dutch Law, Vol. 79, p. 146-154, 2016

JUDY PARKER, University of KwaZulu-Natal - Faculty of Law (Howard College and Pietermaritzburg Campuses)
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FN ZAAL, University of KwaZulu-Natal - Faculty of Law (Westville Campus)
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It is trite law that a person who unlawfully causes the death of a parent is liable to compensate any bereaved dependant children for loss of support and the law of delict covering compensation for such deprivation of a source of maintenance is well established. However, the disadvantage resulting from loss of a parent frequently encompasses much more than the mere termination of a previous source of financial maintenance. For many children, and especially where there was a close relationship, no one can really replace a parent. This is because the child is deprived of a source of love, guidance, role example, and education in the widest sense. These non-material consequences are potentially at least as disadvantageous as the loss of financial support. Despite this, compensation for unlawful deprivation of a parent has for a long time remained limited. Even in an era of paramountcy of the best interests of the child, the well-established delictual action only allows for damages covering loss of financial maintenance.

"Tort Reform through the Backdoor: A Critique of Law & Apologies" Free Download
Southern California Law Review, Forthcoming

YONATHAN A. ARBEL, Harvard Law School, Villanova University - School of Law
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YOTAM KAPLAN, Hebrew University of Jerusalem, Harvard University
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In this Article we show how the biggest tort reform of the last decade was passed through the backdoor with the blessing of its staunchest opponents. We argue that the widely-endorsed apology law reform — a change in the national legal landscape that privileged apologies — is, in fact, a mechanism of tort reform, used to limit victims’ recovery and shield injurers from liability. While legal scholars overlooked this effect, commercial interests seized the opportunity and are in the process of transforming state and federal law with the unwitting support of the public.

"Tainted: Food, Identity, and the Search for Dignitary Redress" Free Download
Brooklyn Law Review , Vol. 81, No. 4, 2016

MELISSA MORTAZAVI, University of Oklahoma - College of Law
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The law recognizes a right to legal redress for exposure to food that is tainted in the sense of being toxic or poisonous; but what about exposure to food products individuals find socially, morally or religiously repugnant? Jews eating “Kosher? hot dogs containing standard non-kosher meats. Vegetarians fed beef. Muslims ingesting vitamins containing pork. Aren’t these food products also “tainted?? Despite the fact that the American legal system has long recognized the need to protect individual dignitary rights, the law provides little meaningful redress in these situations or other instances of offensive food taint. So why has food autonomy, an intuitive manifestation of personal dignity and central expression of individual identity, fallen outside of what the law recognizes as harm? Ultimately, is this a situation where facially neutral law is itself tainted by imbedded food assumptions?

This article defines the problem of failing to recognize offensive food taint, outlines the current state of the law regarding such exposures, and then lays out potential solutions for providing redress moving forward. In doing so, the paper concludes that the intentional tort of battery may play a significant role in empowering injured parties in the most egregious cases of offensive taint.

"Legal Liability in China: A Brief History and Current Practice" Free Download

DOUGLAS JACOB BUJAKOWSKI, Independent
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We examine the historical development of tort law in China and discuss current issues with implementation of legal rules. We observe that economic development has been closely linked with legislative change, yet historical norms, including government control, continue to influence implementation of those legislative changes. Legal rights and responsibilities for individuals and organizations, therefore, remain uncertain.

"Bank Liability Under the Antiterrorism Act: The Mental State Requirement Under § 2333(a)" Free Download
Fordham Law Review, Vol. 85, 2016

OLIVIA CHALOS, Fordham University, School of Law, Students
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Terrorism is at the forefront of international concern. The United States devotes tremendous resources to disrupt terrorist networks, but the fight against terrorism continues to involve countless fronts. Since September 11, 2001, financial institutions have emerged as an increasingly popular target in efforts to cut off the flow of material support to terrorist organizations abroad. Civil claims continue to be filed against banks, in part because of their “deep pockets.? These claims generally allege that the banks provided material support to terrorist groups through the provision of financial services.

The potential for large civil judgments against banks under the Antiterrorism Act (ATA), however, remains problematic in practice. Inconsistency in the interpretation and application of ATA civil liability limits the statute’s effectiveness. It encourages forum shopping and creates the potential for disparate judgments depending on the court where an action is filed.

This Note specifically addresses the jurisdictional split on the mental state requirement necessary to hold a defendant liable under the ATA. This Note explores the current judicial interpretations of the statute and concludes that, as the statute stands, the Second Circuit best interprets the mental state requirement for § 2333(a) claims predicated on a violation of material support laws. This Note proposes, however, that Congress should amend the ATA to clarify the state-of-mind requirement and should only allow for a cause of action where a bank manifests heightened culpability through intentional wrongdoing in the provision of financial services to foreign terrorist organizations.

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This eJournal distributes working and accepted paper abstracts dealing with torts, product liability, and insurance law. Related articles may also be published in other Legal Scholarship Network journals, including Law and Economics; Litigation, Procedure, and Dispute Resolution; Health Law and Policy; Employment and Labor Law; and Environmental Law and Policy.

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Advisory Board

Torts & Products Liability Law eJournal

ANITA BERNSTEIN
Anita and Stuart Subotnick Professor of Law, Brooklyn Law School

RICHARD A. EPSTEIN
Laurence A. Tisch Professor of Law , New York University School of Law, Stanford University - Hoover Institution on War, Revolution and Peace, James Parker Hall Distinguished Service Professor of Law Emeritus, University of Chicago - Law School

MARK GEISTFELD
Sheila Lubetsky Birnbaum Professor of Civil Litigation, New York University School of Law

MARK F. GRADY
Professor of Law, University of California, Los Angeles (UCLA) - School of Law

SAUL LEVMORE
William B. Graham Professor of Law, University of Chicago Law School

ROBERT L. RABIN
A. Calder Mackay Professor of Law, Stanford Law School

W. KIP VISCUSI
University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Law School, Research Associate, National Bureau of Economic Research (NBER), University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Department of Economics, University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Owen Graduate School of Management, Vanderbilt University - Strategy and Business Economics

RICHARD W. WRIGHT
Professor of Law, Chicago-Kent College of Law - Illinois Institute of Technology