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Tort and Accident Law: Cases and Materials, 5th Edition
No full textThe Fifth Edition embodies the authors’ collective wisdom from teaching the text over many years and incorporates numerous substantive and pedagogical changes. New notes introduce the principal cases succinctly and clearly. These notes orient readers to the topics at hand and illuminate related puzzles and controversies. They both assist students in understanding the cases that follow and serve to spur careful analysis and robust classroom discussion. Many new headings and subheadings have also been added. These, too, are intended to facilitate understanding by clearly indicating how various issues fit together within the larger topic.The revision includes over 50 new cases, squibs, and other materials. These updates reflect both developments in traditional fields of tort liability and new phenomena such as the rise of online platforms where products are now sold and commerce is carried on. Some of these new cases show courts grappling with questions of gendered and racialized wrongs in ways that they would not have done even a decade ago. Since the Fourth Edition, many provisions of the Second Restatement (of Torts, Agency, or other fields of law) have been superseded or supplemented by corresponding provisions of the Third Restatement. Moreover, many states have adopted pattern jury instructions that succinctly outline the elements of various claims and defenses. These new materials provide clear guidance regarding the current scope and contours of numerous claims and defenses.There are also important organizational changes and deletions. To name just a few: several chapters have been reorganized to address the rise of classical accident law and to clarify how modern tort law develops from it, to update and expand upon limitations on punitive damages, and to clarify the elements of battery and the defenses to battery. Furthermore, the casebook has been shortened and its materials have been focused on those topics addressed in current first-year torts classes.Lastly, this edition expands the book’s treatment of an emerging area of law: public nuisance. While public nuisance originally landed in the United States along with the rest of the English common law, it owes its contemporary prominence in mass tort litigation to the tobacco suits of the 1990’s. In the wake of the stunning success of the tobacco litigation, ambitious public nuisance claims have proliferated to encompass contemporary social problems such as the public health scourge of lead paint contamination, greenhouse gases, and opioids. This important legal field is comprehensively addressed in the portion of the casebook discussing mechanisms of recovery for increasingly common situations in which many people are put at risk, and many ultimately hurt, by the same tortious conduct.https://scholarship.law.bu.edu/books/1378/thumbnail.jp
Un-Erasing Race in a Medical-Legal Partnership: Antiracist Health Justice Advocacy by Design
Get PDFThis Article covers a potential response to a Massachusetts state law which has been interpreted to require health care providers and birthing hospitals to report to state authorities any infant born to a person taking medication of opioid use disorder. While the statute mandates reports where a professional has reasonable cause to believe that a child is suffering physical or emotional injury as a result of substance dependence at birth, the Article highlights that many institutions report all infants born to persons with substance abuse disorders, regardless of risk of harm, for fear of penalty for failure to report. As a result, many individuals endure months or years long involvement with state authorities without warrant. Many patients avoid necessary pre- and perinatal care, addiction treatment, or both for fear of repercussions. Importantly, the Authors note that these challenges have been disproportionately impacting the Black community. As a potential solution, the Authors explore the possibility of an academic medical legal partnership which would support patients of a regional referral center and medical home for the treatment of substance use disorder in pregnancy. The Authors advocate for the use of such partnerships across different communities. Furthermore, they claim that academic medical legal partnerships which utilize an antiracist design can 1) shift the dialogue regarding social determinants of health and 2) fulfill ABA curriculum standards in law schools
What Mcculloch V. Maryland Got Wrong: The Original Meaning of Necessary is Not Useful , Convenient , or Rational
Get PDFMcCulloch v. Maryland, echoing Alexander Hamilton nearly thirty years earlier, claimed of the word “necessary” in the Necessary and Proper Clause: “If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports that one thing is convenient, or useful . . . to another.” Modern case law has translated that understanding into a rational-basis test that treats the issue of necessity as all but nonjusticiable; The Supreme Court has never found a congressional law unconstitutional on the ground that it was not “necessary . . . for carrying into Execution” a federal power.
Marshall, and Hamilton before him, were simply wrong in their empirical claim about the meaning of “necessary,” We show, using founding-era dictionaries, an extensive corpus linguistic study of founding-era sources, and intertextual and intratextual analysis, that the original meaning of “necessary” cannot plausibly be equated with “convenient,” “useful,” “conducive to,” or “rational.” The case against Marshall and Hamilton’s linguistic claim is simply overwhelming.
That does not mean that executory laws are “necessary” only if “indispensable,” as the State of Maryland, echoing Thomas Jefferson, argued in McCulloch. While that strict meaning finds support in many of the sources that we examine, it does not constitute the best meaning in the specific context in which the term “necessary” appears in the Constitution: A clause defining the incidental powers of agents. In that setting, familiar from the law of agency, a better fit is James Madison’s view that executory laws are necessary if they exhibit “a definite connection between means and ends,” showing “some obvious and precise affinity” between the laws and the powers which they implement. In modern parlance drawn from another context, one might say that executory laws are necessary if they are congruent and proportional to the task to which they are put.
Our principal goal in this article is not to defend this Madisonian view of necessity but simply to show that Marshall and Hamilton’s linguistic claim about the meaning of “necessary” is false. We do not offer a comprehensive account of the original meaning of the Necessary and Proper Clause beyond this simple observation. But because McCulloch’s dictum has become canonical, we examine some of the leading cases involving federal power to see whether substituting a congruence-and-proportionality test for the test of usefulness, convenience, or rationality would make a large difference in outcomes. Holding all other elements and applications of doctrine equal, we find only a few cases in which getting right the original meaning of “necessary” might make a difference – and those cases are already widely seen as anomalous under current doctrine. Nonetheless, there is value in getting such things right, including focusing attention on the extent to which the Necessary and Proper Clause rather than the Commerce Clause is the key to understanding the scope of federal power
Reply Brief for Petitioner, Muldrow v. City of St. Louis
Get PDFSection 703(a)(1) is straightforward: It prohibits all discrimination against an employee “with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e2(a)(1). The Department does not dispute that job transfers concern “terms and conditions” of employment. See Resp. Br. 1, 35. So, if the statute’s words are honored, and Jatonya Muldrow can show that the Department’s transfer decisions were imposed “because of” her sex, the Department is liable.
Yet the Department maintains that some discriminatory job transfers escape Title VII’s reach. It relies nearly exclusively on the phrase “discriminate against” in Section 703(a)(1), which, the Department asserts, silently incorporates a material harm requirement. But those words do no such thing. This Court has explained that to “discriminate against” an individual means to treat her worse compared to someone else who is similarly situated. Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1740 (2020). That is exactly how Muldrow maintains the Department treated her. The Department transferred her when it would not have transferred a similarly situated male colleague. Section 703(a)(1) requires nothing more than that.
This Court should hold that Section 703(a)(1) means what it says and reverse
The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity
Get PDFThe unitary executive theory relies on the First Congress and an ostensible Decision of 1789 as an originalist basis for unconditional presidential removal power. In light of new evidence, the First Congress was undecided on any constitutional theory and retreated to ambiguity in order to compromise and move on to other urgent business.
Seila Law\u27s strict separation-of-powers argument depends on indefeasibility (i.e., Congress may not set limits or conditions on the president\u27s power of civil removal). In fact, few members of the First Congress defended or even discussed indefeasibility. Only nine of fifty-four participating representatives explicitly endorsed the presidentialist view that Article II implied a presidential removal power. The debates indicate that some of the sixteen or so House members assumed to be presidentialist are just as explainable as strategic ambiguity : in the face of opposition, they retreated to an unclear text that was more likely to achieve compromise or could be presented flexibly to different members.
This new strategic ambiguity interpretation turns on overlooked sources-a Senator\u27s diary and other senators\u27 notes-and two new approaches to analyzing the First Congress\u27s debates. Senator William Maclay\u27s diary shows growing Senate opposition to Madison\u27s overall legislative agenda just before Madison retreated to a more ambiguous text. Maclay and other senators documented opposition to presidential removal, followed by an obfuscating debate, reflecting follow-through on the strategy of ambiguity.
A new interpretive approach gives more weight to the only day of debateMonday, June 22-that separated the unitary presidentialists from the congressionalists (who thought Article I gave Congress the power to delegate removal), revealing that a solid House majority rejected even a weak form of presidentialism.
A second new approach puts this debate in the context of the urgent and sprawling legislative agenda in the summer of 1789. Madison and other presidentialists knew they might not have the votes either in the House (for their presidential theory) or Senate (for presidential removal under any theory). A study of the First Congress\u27s drafting practices reveals that explicit explanatory clauses and preambles were common, but Madison went in the opposite direction. Madison\u27s opponents called it a retreat, and even Madison and key allies hinted at an explanation of strategic ambiguity. Madison and Court Party supporters of the Washington administration spun the retreat as a victory. Madison\u27s myth-making has succeeded again two centuries later, as the Roberts Court and modern unitary theorists rely on Madison\u27s letters more than the debates themselves. The unitary theorists\u27 widespread errors, even though made in good faith, raise questions about the reliability of originalism
Making pandemic era Medicaid continuous coverage automatic in future crises
No full textOn May 11, 2023, the federal COVID-19 public health emergency (PHE) ended after more than 3 years,1 marking the conclusion of significant federal health care support for states and individuals. While economic crises have typically led to substantial declines in health insurance coverage,2, 3 the federal response to the COVID-19 health and economic crises included novel policies to maintain continuous enrollment in Medicaid and enhance Marketplace subsidies that helped people remain insured. A lesson from the COVID-19 PHE is that federal support can stabilize health insurance coverage and improve health care access in times of crisis. The United States can prepare to support health insurance coverage and health care access in future crises by automating implementation of policies that helped people remain insured during COVID-19
Affirmative Action After SFFA
Get PDFIn SFFA v. Harvard (SFFA), the Supreme Court further restricted a university’s right to consider the racial identity of individual applicants during admissions. The ruling has spawned considerable confusion regarding a university’s ongoing ability to pursue racial diversity, racial inclusion, and other equality-oriented goals—whether through “raceconscious” or “race-neutral” means. To assist institutions attempting to navigate the ruling, this article outlines a set of key legal rights and responsibilities that universities continue to possess following SFFA
Diverse patients’ attitudes towards Artificial Intelligence (AI) in diagnosis
Get PDFArtificial intelligence (AI) has the potential to improve diagnostic accuracy. Yet people are often reluctant to trust automated systems, and some patient populations may be particularly distrusting. We sought to determine how diverse patient populations feel about the use of AI diagnostic tools, and whether framing and informing the choice affects uptake. To construct and pretest our materials, we conducted structured interviews with a diverse set of actual patients. We then conducted a pre-registered (osf.io/9y26x), randomized, blinded survey experiment in factorial design. A survey firm provided n = 2675 responses, oversampling minoritized populations. Clinical vignettes were randomly manipulated in eight variables with two levels each: disease severity (leukemia versus sleep apnea), whether AI is proven more accurate than human specialists, whether the AI clinic is personalized to the patient through listening and/or tailoring, whether the AI clinic avoids racial and/or financial biases, whether the Primary Care Physician (PCP) promises to explain and incorporate the advice, and whether the PCP nudges the patient towards AI as the established, recommended, and easy choice. Our main outcome measure was selection of AI clinic or human physician specialist clinic (binary, “AI uptake”). We found that with weighting representative to the U.S. population, respondents were almost evenly split (52.9% chose human doctor and 47.1% chose AI clinic). In unweighted experimental contrasts of respondents who met pre-registered criteria for engagement, a PCP’s explanation that AI has proven superior accuracy increased uptake (OR = 1.48, CI 1.24–1.77, p \u3c .001), as did a PCP’s nudge towards AI as the established choice (OR = 1.25, CI: 1.05–1.50, p = .013), as did reassurance that the AI clinic had trained counselors to listen to the patient’s unique perspectives (OR = 1.27, CI: 1.07–1.52, p = .008). Disease severity (leukemia versus sleep apnea) and other manipulations did not affect AI uptake significantly. Compared to White respondents, Black respondents selected AI less often (OR = .73, CI: .55-.96, p = .023) and Native Americans selected it more often (OR: 1.37, CI: 1.01–1.87, p = .041). Older respondents were less likely to choose AI (OR: .99, CI: .987-.999, p = .03), as were those who identified as politically conservative (OR: .65, CI: .52-.81, p \u3c .001) or viewed religion as important (OR: .64, CI: .52-.77, p \u3c .001). For each unit increase in education, the odds are 1.10 greater for selecting an AI provider (OR: 1.10, CI: 1.03–1.18, p = .004). While many patients appear resistant to the use of AI, accuracy information, nudges and a listening patient experience may help increase acceptance. To ensure that the benefits of AI are secured in clinical practice, future research on best methods of physician incorporation and patient decision making is required