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Stipulated Damages, Super-Strict Liability, And Mitigation In Contract Law, Saul Levmore
Stipulated Damages, Super-Strict Liability, And Mitigation In Contract Law, Saul Levmore
Michigan Law Review
The remedy of expectancy damages in contract law is conventionally described as strict liability for breach. Parties sometimes stipulate damages in advance, and may agree that the damages they stipulate shall be the exclusive remedy for breach. They may do so because of their conviction that they can, even in advance, assess damages with greater accuracy than courts, and they may be wary of litigation costs associated with the postbreach determination of expectancy damages. This Article advances two claims. First, that the familiar expectation remedy is correctly understood to involve elements of fault. There is litigation over the question of …
A Hybrid Approach To The Use Of Deliberate Ignorance In Conspiracy Cases, Jessica A. Kozlov-Davis
A Hybrid Approach To The Use Of Deliberate Ignorance In Conspiracy Cases, Jessica A. Kozlov-Davis
Michigan Law Review
When hunted, the ostrich is said to run a certain distance and then thrust its head into the sand, thinking, because it cannot see, that it cannot be seen by the hunters. Legal parlance therefore refers to the "ostrich instruction," used when a defendant acts with the awareness of a high probability of the existence of an incriminating fact, but remains deliberately ignorant as to whether the fact actually exists, hoping his ignorance will maintain his innocence. The defendant is like the ostrich - he thinks that if he does not actually see the facts, even though he knows they …
The Foundations Of Liberty, Lawrence B. Solum
The Foundations Of Liberty, Lawrence B. Solum
Michigan Law Review
Randy Barnett's The Structure of Liberty is an ambitious book. The task that Barnett sets himself is to offer an original and persuasive argument for a libertarian political theory, a theory that challenges the legitimacy of the central institutions of the modern regulatory-welfare state. The Structure of Liberty is that rare creature, a book that delivers on most of the promises it makes. Already the book is on its way to becoming a contemporary classic, the successor in interest to Robert Nozick's Anarchy, State and Utopia as a source of ideas and arguments for the revitalization of an important intellectual …
Ignorance Of Law Is An Excuse - But Only For The Virtuous, Dan M. Kahan
Ignorance Of Law Is An Excuse - But Only For The Virtuous, Dan M. Kahan
Michigan Law Review
It's axiomatic that "ignorance of the law is no excuse." My aim in this essay is to examine what the "mistake of law doctrine" reveals about the relationship between criminal law and morality in general and about the law's understanding of moral responsibility in particular. The conventional understanding of the mistake of law doctrine rests on two premises, which are encapsulated in the Holmesian epigrams with which I've started this essay. The first is liberal positivism. As a descriptive claim, liberal positivism holds that the content of the law can be identified without reference to morality: one needn't be a …
Of Seeds And Shamans: The Appropriation Of The Scientific And Technical Knowledge Of Indigenous And Local Communities, Naomi Roht-Arriaza
Of Seeds And Shamans: The Appropriation Of The Scientific And Technical Knowledge Of Indigenous And Local Communities, Naomi Roht-Arriaza
Michigan Journal of International Law
This article recasts the debates over access to, and control over, genetic and biological knowledge and resources in terms of the appropriation of indigenous and local communities' knowledge and resources. It first discusses recent examples of appropriation as currently conducted by global biotechnology, pharmaceutical, and agribusiness corporations and their associates in Northern universities, seed and gene banks, and research centers. Second, it describes and exposes the mechanisms of appropriation by focusing on the limited and culturally determined definitions of what is "wild" as opposed to "cultivated," what is "knowledge" and who can possess it, and what are "innovations" and "inventions." …
Raiders Of The Lost Scrolls: The Right Of Scholarly Access To The Content Of Historic Documents, Cindy Alberts Carson
Raiders Of The Lost Scrolls: The Right Of Scholarly Access To The Content Of Historic Documents, Cindy Alberts Carson
Michigan Journal of International Law
In Section I of this article, I will describe the events that led to the current controversy. In Section II, I will discuss whether the content of historic documents can be classified as cultural property. In Section III, I will consider whether control of the content of these documents interferes with intellectual freedom. In Section IV, I will discuss the intellectual property arguments raised by owners and interpreters of the Scrolls. Finally, in Section V, I will propose standards for access to, and preservation of, historic documents.
Partnerships-Dissolution-Sufficiency Of Notice To Prior Creditors, Paul M.D. Harrison S.Ed.
Partnerships-Dissolution-Sufficiency Of Notice To Prior Creditors, Paul M.D. Harrison S.Ed.
Michigan Law Review
Plaintiff brought suit on account for merchandise sold and delivered, alleging that the defendants were liable as partners. The defendants admitted that they had dealt with the plaintiff while they were a partnership, but averred that a corporation was formed which took over the partnership and that the merchandise in question had been purchased by the corporation. The trial judge instructed the jury that plaintiff must have notice or knowledge of the dissolution of the partnership to relieve defendants of personal liability, and that mere notice of the formation of the corporation was immaterial. Held, judgment for plaintiff affirmed. …
Partnership-Effect Of Provision That Executor Of Deceased Partner Shall Continue Partnership As Partner, Irving Slifkin S.Ed.
Partnership-Effect Of Provision That Executor Of Deceased Partner Shall Continue Partnership As Partner, Irving Slifkin S.Ed.
Michigan Law Review
In a recent decision the Wisconsin Supreme Court upheld the validity of a provision in a partnership agreement to the effect that the personal representative of the deceased partner should continue the business as a partner, and also stated: "There is no doubt that a partner may provide by his will that the partnership shall continue notwithstanding his death." The deceased partner by his will gave to his executor broad discretionary powers of sale over all of his property. To his widow the deceased partner bequeathed a share of his interest in the partnership business. The executor of the deceased …
Bailment-Unknown Chattels Contained In Object Bailed, B. E. Heath
Bailment-Unknown Chattels Contained In Object Bailed, B. E. Heath
Michigan Law Review
Plaintiff's automobile was stolen from defendant's parking lot. Plaintiff had previously disclosed to defendant's agent that certain things were in the car, but had failed to mention other items also present. In an action to recover the value of all the items, held, recovery allowed only for those things that defendant knew were in the automobile, he being a bailee of those things only. Palotto v. Hanna Parking Garage Co., (Ohio 1946) 68 N.E. (2d) 170.
Copyrights - Laches As A Defense To Suit For Copyright And Patent Infringement, David Davidoff
Copyrights - Laches As A Defense To Suit For Copyright And Patent Infringement, David Davidoff
Michigan Law Review
Plaintiff manufacturer sued, inter alia, for copyright infringement in the appropriation of the content of his catalogues by defendant, a former employee. It appeared that plaintiff had known of the infringement for over three years before filing suit, during which time he had made no protest or complaint, but had stood by while defendant incurred large expense in printing and distributing the catalogues. Held, plaintiff's laches barred relief for the infringement. Wiegand Co. v. Trent Co., (C. C. A. 3d, 1941) 122 F. (2d) 920.
Principal And Agent - Application Of "Sole Actor" Doctrine, Michigan Law Review
Principal And Agent - Application Of "Sole Actor" Doctrine, Michigan Law Review
Michigan Law Review
Defendant executed a note for $12,500 to the Taylor National Bank, due six months after date, at the request of one Morton, president and cashier of the bank. Defendant was told by Morton that the instrument was purely an accommodation note, that he would never have to pay anything on account of it and that before using it Morton would see that good and sufficient collateral was placed with it. In defense to an action on the note by the receiver of the bank, the defendant charged that the bank had knowledge of the conditions and purposes for which the …
Tort Liability Of A Landlord, Raymond Harrison Harkrider
Tort Liability Of A Landlord, Raymond Harrison Harkrider
Michigan Law Review
When a landowner leases his property to a tenant he looks upon the transaction as purely a business matter. He is seldom aware, perhaps, of the duties resting upon him, the breach of which may subject him to an action in tort. The relation created is one of the most common known to our law and gives rise to a multitude of problems. The courts in their business-like manner treat the law as well settled, and decide the cases as they are presented with very little discussion of the true principles involved. Legal scholars have discussed very little the tort …