Torts

5 posts

The Internet of Things and Potential Remedies in Privacy Tort Law

Issues Volume 50, Issue 2

By Alexander H. Tran

The Internet of Things (IoT) is an intriguing digital phenomenon in technology that creates many legal challenges as the world becomes more interconnected through the Internet. By creating a connected system, the IoT links a network of physical objects, like consumer devices, and enables these devices to communicate and exchange data. In the very near future, almost every consumer device, from cars to a coffee mug, may connect through the Internet. The IoT has incredible potential to better society by providing immense amounts of rich sensory data for analytics and other uses. Nevertheless, there are also many latent dangers that could manifest as the IoT proliferates, including privacy violations and security risks.

The legal scholarship surrounding privacy issues with respect to the IoT is currently underdeveloped. This Note adds to the discussion of privacy law by analyzing the legal repercussions of the IoT and its relationship to privacy tort law. It summarizes the foundations of privacy law and current regulations that apply to the IoT and concludes that current laws and regulations provide limited remedies for consumers harmed by the IoT. It then provides a potential solution by suggesting that two privacy torts, the public disclosure of private facts tort and the intrusion upon seclusion tort, can provide partial civil remedies for those consumers. Each of the two privacy torts has evolved in different ways since its creation, and this Note explores the advantages and disadvantages of both. Finally, this Note advocates for the expanded use and revitalization of these privacy torts through judicial application in IoT cases as a potential strategy for regulating the IoT.

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A Congressional Edifice: Reexamining the Statutory Landscape of Mandatory Arbitration

Issues Volume 52, Issue 4

By Andrew McWhorter

In the last century arbitration has grown to be a large and important part of the U.S. legal system. However, mandatory arbitration has been used in recent years to bar class action lawsuits and limit the procedural remedies available to certain classes of litigants. At the same time, the routes to challenging the use of mandatory arbitration have been increasingly closed off, with the courts broadly ruling in favor of its use and agency action likely foreclosed in the immediate future. In turn, the debate over mandatory arbitration has calcified, with one side arguing for an almost total ban on mandatory arbitration and the other arguing for few, if any, limits.

Despite these prevailing currents, Congress has enacted a handful of statutes that limit or regulate the use of mandatory arbitration in some way. This Note examines each of these statutes in turn with particular focus on the mechanisms by which they limit mandatory arbitration and the likely interests embodied in their passage. Drawing on the structure of these prior enactments, this Note ultimately argues in favor of a more holistic approach towards mandatory arbitration reform focused on the contexts in which mandatory arbitration is available and the processes applied in those contexts. This compromise position would curb the abuses of mandatory arbitration while retaining its benefits.

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Algorithmic Harms to Workers in the Platform Economy: The Case of Uber

Issues Volume 53, Issue 2

By Zane Muller

Technological change has given rise to the much-discussed “gig” or “platform economy,” but labor law has yet to catch up. Platform firms, most prominently Uber, use machine learning algorithms processing torrents of data to power smartphone apps that promise efficiency, flexibility, and autonomy to users who both deliver and consume services. These tools give firms unprecedented information and power over their services, yet they are little-examined in legal scholarship, and case law has yet to meaningfully address them. The potential for exploitation of workers is immense, however the remedies available to workers who are harmed by algorithm design choices are as yet undeveloped.

This Note analyzes a set of economic harms to workers uniquely enabled by algorithmic work platforms and explores common law torts as a remedy, using Uber and its driver-partners as a case study. Part II places the emerging “platform economy” in the context of existing labor law. Part III analyzes the design and function of machine learning algorithms, highlighting the Uber application. This Part of the Note also examines divergent incentives between Uber and its users alongside available algorithm design choices, identifying potential economic harms to workers that would be extremely difficult for workers to detect. Part IV surveys existing proposals to protect platform workers and offers common law causes of action sounding in tort and contract as recourse for workers harmed by exploitative algorithm design.

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Strict Tort Liability for Police Misconduct

Issues Volume 53, Issue 1

By Elias R. Feldman

The disproportionate rates at which police use wrongful deadly force against racial minorities in the United States is a matter of significant national concern. This Note contributes to the ongoing conversation by proposing a new legal reform, which calls for the state law imposition of strict tort liability on municipal governments for police misconduct. Such a reform could remedy the harms of police misconduct more fully than the existing laws do.

Under the Restatement (Third) of Torts, a person who is found by a court to have carried on an “abnormally dangerous activity” will be subject to strict liability for physical harm resulting from that activity. An abnormally dangerous activity is one which creates a foreseeable and highly significant risk of harm even when reasonable care is exercised in its performance; it is also an activity of “uncommon usage” in the sense that the risk it creates is nonreciprocal. In Part II, this Note explains how the policies and practices of modern policing, in conjunction with human cognitive limitations, cause policing to create a foreseeable and highly significant risk of harm even when performed with reasonable care. Part III then explains how policing’s risk is disproportionately borne by racial minorities, and how this nonreciprocity of risk imposes a dignitary harm on third-party racial minorities distinct from the physical harm suffered by police misconduct’s immediate victims. Part IV, in turn, discusses how policing’s nonreciprocal risk also makes policing “uncommon” in the relevant sense. Having established that policing is the kind of activity to which strict liability can be properly applied as a matter of law, this Note argues in Part V that imposing strict tort liability on municipalities for police misconduct is desirable as a matter of policy because strict liability rules are uniquely effective at correcting the misallocation of social costs and benefits stemming from nonreciprocal risk. Finally, this Note concludes in Part VI by anticipating possible political and legal objections to the proposed reform.

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Making It Right: Preserving Wrongful Birth After Dobbs

Issues Volume 57, Issue 1

By Natasha Statz-Geary

In overturning Roe v. Wade, the U.S. Supreme Court opened the floodgates for anti-abortion laws to sweep the country, radically transforming the legal landscape surrounding prenatal care. On the criminal side, centuries-old abortion bans have been given new life following Dobbs. On the civil side, statutes have empowered private citizens to sue anyone who “aids and abets” an abortion. These concerns have dominated much of the legal discourse following Dobbs, but another civil cause of action implicated in the decision has received little attention: wrongful birth.

Wrongful birth is a medical malpractice claim brought by parents who assert that but for a doctor’s negligent failure to detect a fetal abnormality, they would have terminated the pregnancy. Despite criticisms from disability activists and anti-abortion groups alike, the tort has served its dual aims of compensating victims and deterring negligent care for over fifty years. Scholars have long believed that the cause of action was made possible by Roe; following Roe’s reversal, the tort’s future is unclear. Wrongful birth is in jeopardy at the precise moment when women need it most. Deterrence and financial compensation are more important than ever in a world with more pregnancies and ambiguous legal standards.

This Note examines wrongful birth’s viability post-Roe and argues that the cause of action can remain available. After reviewing the tort’s history and arguing that it is not dependent on Roe, this Note proposes three novel theories plaintiffs can utilize to recover for wrongful birth: (i) an expanded “loss of deliberation and preparation” theory that encapsulates the harm flowing from delayed diagnosis and the lost chance to travel for a legal abortion; (ii) a statutory interpretation analysis through which plaintiffs can argue that their child’s condition would have fallen under an abortion-ban exception for fetal anomalies; and (iii) a choice of law analysis for plaintiffs whose prenatal care crossed state borders.

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