Torts Reports

In recent decades, tobacco use and nicotine addiction in the United States have steadily declined. However, the explosion in popularity of e-cigarettes and vaping threatens to reverse this trend, with youth rates spiking in the last five years. E-cigarettecompanies claim that their products are designed only to help long-term smokers switch to a safer alternative, but their modern, digital consumer acquisition strategies bear an uncanny similarity to the deceptive practices of big tobacco. By exploiting the powerful effects of addiction and sophisticated marketing, as well as the government’s delay in regulating this new tobacco product, e-cigarette manufacturers were able to sell an untested and dangerous product to a new generation of young users. Until enough time elapses to make apparent the long-term harms of products such as JUUL, tort law may struggle to effectively curb the power of e-cigarette manufacturers. Instead, ending the current crisis, as well as preventing future ones, will require innovations in both tort law and regulation, such as redefining harms in order to expand tort liability’s scope and imposing further requirements on companies attempting to bring new addictive products to market.

Thank you to our interviewees: Daniel Aaron, Jianluca Barecchia, Richard Daynard, Robin Koval, Naomi Oreskes, and Dr. Vaughan Rees.

This episode was created by HLS students,

The perception that recycling presents a viable solution to plastic waste is widespread. Many believe that if individuals simply recycled all oftheir plastic waste, then the problem of plastic pollution might be mitigated. However, this does not align with reality. Recycling rates for plastic in the US have never exceeded ten percent. Even more fundamentally, plastic cannot be recycled indefinitely; it may only be downcycled into increasingly lower quality products. If recycling is an inherently ineffective solution, it begs the question of why itbeen so strongly promoted within our cultural discourse.The answer lies in an ongoing public relations campaign by the plastic industry. Started in the 1970s with the famous “Crying Indian” ad, these efforts have sought to create a certain attributional narrative. Similar campaigns continue today in opposition to plastic bag bans. This decades-long campaigning has successfully framed the narrative of plastic waste around individual failings, rather than corporate responsibility. It has likewise convinced us that plastic pollution is a problem to be solved by consumer recycling, rather than by regulation of the plastic industry.

Thank you to our interviewees: Judith Enck, Matthew Wilkins, and Rebecca Altman.

In “The Orphan of the Criminal Justice System,” we address the difficulties that prisoners face in attempting to leverage tort law to achieve change, specifically focusing on environmental issues within prisons. While prisoners often have compelling tort law claims, they remain largely barred from seeking any means of recourse while in prison. To explore some of the structural obstacles that contribute to this, we interview Harvard Prison Legal Assistance Project attorney Joel Thompson, who addresses some of the specific challenges that he has faced in attempting to bring suits on behalf of prisoners, such asinformation, strategic litigation on the partof defendants, and some of the reforms created by the Prison Litigation Reform Act (PLRA). To zoom in on the subject of environmental tort law, we interview Professor Anthony Moffa at the University of Maine, who recently filed an amicus brief on behalf of the plaintiffs in a case called Vega v. Semple,which centers on the issue of radon exposure in prisons. The suit, if successful, could open the door for prisoners to expand their use of environmental tort law in achieving reform. Our hope is that this podcast will shed light on an area of tort law that remains largely unexplored but that could be highly effective in producing change within prisons.

Thank you to our interviewees: Joel Thompson and Professor Anthony Moffa.

Who was Judge Learned Hand? What is the significance of his famous Hand Formula? In this episode, we discuss Judge Hand’s background, his judicial philosophy, and how his opinion in United States v. CarrollTowing Co.led to a paradigm shift in the way legal theorists, legal economists, and judges view negligence in tort law. 

Thank you to our interviewees: Edward A. Purcell Jr., Joseph Solomon Distinguished Professor of Law at New York Law School, Oren Bar-Gill, William J. Friedman, and Alicia Townsend Friedman Professor of Law and Economics at Harvard Law School.

We explore the role of tort litigation in addressing the global climate crisis, including how it compares with other legal avenues such as administrative environmental law. An early wave of tort litigation involving public nuisance claims under federal common law has ended, and more recently there has been a growing number of climate change tort claims based on public nuisance and fraud under state common law. The more recent wave of climate change tort litigation shows some promise while also facing many obstacles in the courtroom. Even so, without the support of Congress and the White House in enacting and enforcing new climate change legislation, climate change tort litigation will have to continue to play a leading role, including by drawing attention to the issue to help inspire broader social change.

Thank you to our interviewees: Ben Franta, Matt Pawa, and Professor Jody Freeman.

In the Trauma at the Border podcast we will discuss family separation, the trauma it causes, tort claims fighting the policy, challenges to using torts, and how to hold the government accountable. After the Department of Justice implemented a “zero tolerance” policy toward illegal border crossing, ICE then detained and separated at least 5,400 families as of October 24, 2019. Separating children from their parents is horribly traumatic, leading to long-lasting mental, physical, and developmental consequences like Post-Traumatic Stress Disorder. The Federal Tort Claims Act removes government immunity to be sued; therefore, affected individuals have often filed for Intentional Infliction of Emotional Distress tort claims. However, the lack of available counsel, the trauma of going through litigation itself, fear of retaliation, and government obstruction impeded the success of many of these cases. Despite the challenges to fighting family separation under the Federal Tort Claims Act, class action lawsuits and innovative restitution, like medical funds, may be applied to tort claims to better address the issues of the policy.

Thank you to our interviewees: Professor Sabrineh Ardalan, Professor Luis H. Zayas, and Lee Gelernt.

Negotiation Frustration provides a critical look at the MDL and negotiation class, the push for settlement, and potential problems with settling. First, there are difficulties in deciding how and where to apportion blame—and thus damages—because of the complicity of so many parties in causing the epidemic. These concerns are exacerbated by worries that any settlement money will be misused, given how states spent the damages won from litigation against Big Tobacco. Additionally, many state attorneys general oppose any settlement brokered by cities and counties, because the resulting money would go to local municipalities instead of to state governments; at the same time, state AGs may not be devoid of ulterior motives, given concerns that the drug industry has captured state prosecutors through their economic importance and their funding of election campaigns. Finally, a settlement would take away the opportunity for a trial, which could provide a public reckoning with the defendants and bring new information to light.

Thank you to guests Richard Ausness, Jayne Conroy, Libby Dimenstein, Franklin Li, and Jennifer Oliva

Approximately 81% of women and 42% of men deal with sexual harassment at least once in their lifetime. This podcast takes you through a short piece of their arduous journey from the perspective of Tristan Coopersmith and explores different reasons why she,just like many other victims of sexual harassment, chose to share her story on social media rather than trusting the courts with her hopes of finding justice. Did she get it? Why did she avoid the courts? What happened to the aggressor? Is this process the fairest to both parties?

Thank you to our interviewees: Sarah Burns, Susan Walker, James Newman, and Janet Halley.

We pose two different scenarios which both include the application of the doctrine of avoidable consequences. In the first, a person is refused damages for failing to mitigate their physical damages, and in the second, the same person is refused damages for failing to mitigate their emotional trauma. The juxtaposition of the two scenarios is meant to elicit a gut response from listeners as to whether they feel differently applying this doctrine to emotional versus physical trauma. Then, we provide the relevant doctrinal definitions and Professor Glenn Cohen’s comments on forced medical interventions. Next, we ask Professor Michael Stein about how the differing conceptions of mental and physical harm affect the legal system’s treatment of them. We then end with a discussion between group members regarding our thoughts on the importance of differences between mental and physical damages and how these differences make the application of the avoidable consequences doctrine more complex.

Thank you to our interviewees: Professor Glen Cohen and Professor Michael Stein.

The science is undeniable and the activism is unavoidable. The effects of climate change are putting human health at risk and endangering coastal infrastructure as sea levels rise to dangerous heights. In response, local governments have taken to tort law, seeking remedies against fossil fuel companies based on a theory of public nuisance. But can any more be done? We sat down with Hana Vizcarra, Jared Knicley, and Richard Lazarus to discuss the role tort law could play in addressing climate change through suits brought by private, rather than public, plaintiffs. Tracing the successful model of the Big Tobacco litigation of the late 1990s, we explore the obstacles private tort suits would be forced to overcome in demonstrating actionable harm. Even if this pattern of tort suit ultimately fails in solving the climate crisis, perhaps it can succeed in molding the application of tort law for the better.

Thank you to our interviewees: Hana Vizcarra, Jared Knicley, and Professor Richard Lazarus.

Paging Dr. Bot aims to engage its audience with existing puzzles surrounding AI and medical malpractice. This episode features interviews with an AI medical researcher, a law professor, and a doctor, who will offer insight into how the integration of AI into medical practice will affect the way standard of care is implemented in medicine. Further, as AI becomes increasingly autonomous, questions of who should bear liability will become increasingly relevant. These interviews hope to provide insight into the climate in which AI enters, ultimately leaving listeners with new insight into whether AI will act more like a stick or a ball as technology progresses.

Thank you to our interviewees: Professor Glen Cohen, Dr. Anupam Jena, and Akshay Jaggi.

Sovereign immunity is a legal doctrine that prevents a state from being sued. Although it has it its roots in the old English common law, it became embedded in America’s jurisprudence soon after its independence. Over the years, sovereign immunity has proven to be a divisive topic. Whilst its detractors portray it as a hindrance to state accountability, its proponents champion its strong symbolic purposes, and stress its practical value for systematically persecuted entities.

Thank you to our interviewees: Jacob Lipton, Joseph Singer, Scott Michelman, Robert Anderson, and Nikolas Bowie.

Our podcast, Unheard Victims of Incarceration, aims to shed light on the plight endured by families and communities of incarcerated individuals. By having their loved ones physically removed from society, these families and communities suffer economically, socially, and emotionally. We argue that such harms should comprise a damage recognized by the government and in turn, constitute an actionable claim for the families and communities of incarcerated individuals. 

The incarceration of loved ones negatively affect their families across multiple domains, from mental health and school performance to lifetime earnings and criminal justice engagement. Despite such destructive effects, it is difficult to acquire tangible compensation for these families’ harms, as they come from communities often neglected by society, lack access to political power, and face state sovereign immunity when trying to bring a claim against the government. 

One possibility for communities victimized by mass incarceration to obtain relief through tort law is launching class action lawsuits against the state. Requested damages would include financial reparations to invest in their communities, such as funding for schools and local businesses. This type of litigation is new territory in the law. Yet if we pursue only cases that are easy, radical change can never occur.

America’s current criminal justice system disproportionately imprisons individuals from certain communities and thus affects these communities far more than others. Our cause of action does not purport to fix the criminal justice system, but rather to provide a response and a solution to one of the consequences of a system embedded with ills.

Thank you to our interviewees: David Harris, Katy Naples-Mitchell, and Todd R. Clear.

In this age of social media dominance and rising instances of hate speech, §230 of the Communications Decency Act and its shield of immunity from tort liability have increasingly come under attack. Abigail and team first talk to Facebook’s Head of Content and Algorithm Policy, and then chat with some average joes for their opinion to determine what, if anything, should be done to bring §230 up to date, and what role tort law has in pushing the issue forward.

Thank you to our interviewee, Andy O’Connell, Head of Content Distribution & Algorithm Policy at Facebook.

Over time, the technological capabilities to manipulate audio/visual media have increased significantly. More recently, artificial intelligence has provided even more powerful and novel ways to alter media. On a technical level, deepfakes work by running algorithms that predict the movements of individuals by analyzing existing media and then rendering highly realistic fabricated videos based on these movements. AI generated videos are therefore high-dimensional and very difficult totell apart from “real” life. These developments have several crucial implications for society at large. It is well established that we tend to believe what we hear and see but the possibility that hearing/seeing no longer establishes authenticity is problematic. It allows individuals with malicious intent to shape narratives that harm groups and individuals. Women, members of the LGBTQ community and minorities are especially vulnerable since their likeness can be used to craft stories that present them in a damaging light. Moreover, politicians and businesspeople have also found themselves implicated in recent deep fake videos. Barack Obama, Nancy Pelosi and Mark Zuckerberg are just some of the prominent figures who were the subjects of recent viral deep fakes. 

Given the power of the technology and the speed of its development, there has been an increasing effort to regulate deep fakes. Recently, a federal bill “DEEPFAKES Act” was introduced in Congress to address the issue. Our investigation revealed that the Act was intended as a messaging device to open the discussion to the wider community and emphasize the power stories have in our society. In a world where deep fake technology has the ability to undermine reality and create hyper-realistic narratives, no social or political institution is truly safe and it is up to us to bring this issue to the forefront.

Thank you to our interviewees: George He and Mutale Nkonde.