Law Commons^™

In Pursuit Of A Modern Standard: The Constitutional Proportions Of Collateral Harm From Pursuits And Police High-Speed Driving, Julian Gilbert

Cleveland State Law Review

Police chases and high-speed driving are common practices that pose a substantial amount of harm and are often unjustified. The benefits of such chases are questionable, and rapid police action at all costs is often unnecessary. When bystanders are injured as a result of police high-speed driving, there are few avenues to have their rights vindicated, and federal court cases require plaintiffs to meet an almost impossible burden. However, under the United States Supreme Court case of County of Sacramento v. Lewis, a plaintiff can put forth evidence that their substantive due process right to life under the Fourteenth …

Changemakers Master Of Studies In Law: Adding Depth: Katie Mulvaney, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Inconvenience Of Justice: How Unmitigated Official Misconduct Almost Destroyed The Lives Of Five Young Boys From Harlem, Stefania Bordone, David Wright

Journal of Race, Gender, and Ethnicity

No abstract provided.

Fosta: A Necessary Step In Advancement Of The Women’S Rights Movement, Alexandra Sanchez

Touro Law Review

No abstract provided.

The Friday Night “Who Is Driving?” Debate Will Soon Come To An End: How Autonomous Vehicles Are Changing Our Lives And Societal Norms, Nicholas Calabria

Touro Law Review

No abstract provided.

Due Process Supreme Court Appellate Division Second Department

Touro Law Review

No abstract provided.

The Ever-Changing Scope Of Insider Trading Liability For Tippees In The Second Circuit, Sari Rosenfeld

Michigan Business & Entrepreneurial Law Review

Liability under insider trading law continues to change as federal courts attempt to find new ways to hold insiders liable under the law. As recently as two years ago, the Second Circuit—in analyzing past decisions regarding tipper-tippee insider trading violations—blurred the distinction between legal and illegal insider trading when it fundamentally altered the idea of “personal benefit.” These various decisions provide the basis for antifraud provisions of securities law applying to insider trading, the consequences of which can be detrimental. This Note will discuss the standard that the Second Circuit uses to hold tippees liable for insider trading violations under …

Nevor V. Moneypenny Holdings, Llc: Availability Of Prejudgment Interest For Mixed Maritime Law And Jones Act Claims, Adam S. Bohanan

Ocean and Coastal Law Journal

In maritime personal injury cases, courts have traditionally seen prejudgment interest as part of the compensation due to a prevailing plaintiff. The goal of ensuring the fullest compensation possible has long been recognized as a basic principle of admiralty law. However, federal appellate courts are split over whether to award prejudgment interest on a mixed claim under general maritime law and the Jones Act. This Note explores this issue in Nevor v. Moneypenny Holdings, LLC, which was the first time the question had been raised in the First Circuit. The Fifth and Sixth Circuits have held that because prejudgment interest …

Superfund Chaos Theory: What Happens When The Lower Federal Courts Don't Follow The Supreme Court, Steven Ferrey

Michigan Journal of Environmental & Administrative Law

There is legal chaos in the national Superfund. The Supreme Court reversed decisions of eleven federal circuit courts in United States v. Atlantic Research Corp. There is no instance in modern Supreme Court history where the Court reversed every federal circuit court in the country, as it did in Atlantic Research. The Supreme Court’s reversal was through a unanimous decision. This was extraordinary: It not only reversed the entire legal interpretation of one of America’s most critical statutes, but also re-allocated billions of dollars among private parties.

The Supreme Court, when it rendered its decision, seemed to be rectifying a …

Problems Concerning Litigating Custom And Practice Cases, Steve Ryals

Touro Law Review

No abstract provided.

Petitioning Foreign Governments: The Act Of State And Noerr-Pennington Doctrines, Don R. Sampen

Georgia Journal of International & Comparative Law

No abstract provided.

Campbell At 21/Sony At 31, Jessica D. Litman

Articles

When copyright lawyers gather to discuss fair use, the most common refrain is its alarming expansion. Their distress about fair use’s enlarged footprint seems completely untethered from any appreciation of the remarkable increase in exclusive copyright rights. In the nearly forty years since Congress enacted the 1976 copyright act, the rights of copyright owners have expanded markedly. Copyright owners’ demands for further expansion continue unabated. Meanwhile, they raise strident objections to proposals to add new privileges and exceptions to the statute to shelter non-infringing uses that might be implicated by their expanded rights. Copyright owners have used the resulting uncertainty …

Market Power Without Market Definition, Daniel A. Crane

Articles

Antitrust law has traditionally required proof of market power in most cases and has analyzed market power through a market definition/market share lens. In recent years, this indirect or structural approach to proving market power has come under attack as misguided in practice and intellectually incoherent. If market definition collapses in the courts and antitrust agencies, as it seems poised to do, this will rupture antitrust analysis and create urgent pressures for an alternative approach to proving market power through direct evidence. None of the leading theoretic approaches—such as the Lerner Index or a search for supracompetitive profits—provides a robust …

The Equal Employment Opportunity Commission And Structural Reform Of The American Workplace, Margo Schlanger, Pauline T. Kim

Articles

In one of its most-watched recent cases, the United States Supreme Court struck down a class action alleging that Wal-Mart stores discriminated against female employees in pay and promotion decisions. The plaintiffs alleged that Wal-Mart’s corporate culture and highly discretionary decision-making practices led to sex discrimination on a company-wide basis, and they sought injunctive relief as well as backpay for individual employees. Reversing the Court of Appeals for the Ninth Circuit, the Supreme Court held in Wal-Mart v. Dukes that the proposed class failed to meet the requirements for class action certification under Rule 23 of the Federal Rules of …

Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos

Articles

Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique. This critique argues that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique. This critique observes that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but argues that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case.

Interactive Methods And Collaborative Performance: A New Future For Indirect Infringement, Josh Rychlinski

Michigan Telecommunications & Technology Law Review

An individual is liable for patent infringement if he infringes one or more patented claims either directly under 35 U.S.C. § 271(a) or indirectly under 35 U.S.C. § 271(b) or § 271(c). In 2012, the Federal Circuit clarified its interpretation of § 271(b) and § 271(c) in the case of Akamai v. Limelight. However, the court failed to address issues of “divided” direct infringement, where two or more entities combine and together complete each and every step of a method claim, but no single entity does all of the steps. This Note walks through the history of the judicial interpretation …

Search Engine Liability For Autocomplete Defamation: Combating The Power Of Suggestion, Michael L. Smith

Faculty Articles

In September 2012, Bettina Wulff, a former first lady of Germany, sued Google for defamation. Mrs. Wulff's complaint arose from Google's autocomplete function: when Mrs. Wulff's name was entered into the search engine, the search engine automatically suggested terms such as "prostitute" and "red light district." Rumors that Mrs. Wulff was a former prostitute dated back to 2006 when she first met Christian Wulff, her eventual husband and president of Germany from 2010 until his resignation in February 2012. Mrs. Wulff denied the truth of these rumors.

Mrs. Wulff contended that these autocomplete results were defamatory and that they caused …

A Constitutional Right To Safe Foster Care - Time For The Supreme Court To Pay Its I.O.U., Daniel L. Skoler

Pepperdine Law Review

No abstract provided.

Negligent Infliction Of Emotional Distress: A Proposal For A Consistent Theory Of Tort Recovery For Bystanders And Direct Victims, Julie A. Greenberg

Pepperdine Law Review

No abstract provided.

Collateral Participant Liability Under State Securities Laws, Douglas M. Branson

Pepperdine Law Review

No abstract provided.

Respondent Superior As An Affirmative Defense: How Employers Immunize Themselves From Direct Negligence Claims, J. J. Burns

Michigan Law Review

Most courts hold that where a defendant employer admits that it is vicariously liable for its employee's negligence, a plaintiff's additional claims of negligent entrustment, hiring, retention, supervision, and training must be dismissed. Generally, courts apply this rule based on the logic that allowing a plaintiff's additional claims adds no potential liability beyond that which has already been admitted. Furthermore, since the additional claims merely allege a redundant theory of recovery once a respondeat superior admission has been made, the prejudicial evidence of an employee's prior bad acts which often accompanies direct negligence claims against employers can be excluded without …

Balancing Judicial Cognizance And Caution: Whether Transnational Corporations Are Liable For Foreign Bribery Under The Alien Tort Statute, Matt A. Vega

Michigan Journal of International Law

In the process of applying the ATS to foreign bribery, this Article will examine several unresolved issues surrounding this statutory grant. It will seek to (1) determine what constitutes a "violation of the law of nations," (2) refute the proposition that private defendants may be prosecuted under the ATS for only the most shocking and egregious jus cogens violations, (3) determine when and to what extent state action is required in ATS litigation, and (4) examine the limitations of the fundamental principles of international law on ATS litigation.

"Controlling" Securities Fraud: Proposed Liability Standards For Controlling Persons Under The 1933 And 1934 Securities Acts, Nancy Staudt

Faculty Working Papers

This Student Note investigates the history and intent underlying the controlling person liability provisions of the 1933 and 1934 Securities Act. It notes that courts have adopted a ranges of standards for holding controlling persons liability, but whichever standard is chosen--that standard is applied to both Acts. This note argues that courts should impose unique liability standards for each statute in order to fully realize Congress' purpose in adopting the laws.

Generic Preemption: Applying Conflict Preemption After Wyeth V. Levine, Hannah B. Murray

Michigan Telecommunications & Technology Law Review

If a generic manufacturer does not have control over its safety warnings, can it comply with the obligations posed by state tort liability? State failure-to-warn actions evaluate whether a product manufacturer has met its obligation to warn consumers about known dangers associated with its product. In essence, if a manufacturer knows about a potentially dangerous outcome, it has a duty to warn its consumers. If the generic manufacturer can comply with a state duty to warn only by changing a label that the FDA will not allow it to change, it becomes impossible for the corporation to meet both requirements. …

The Effect Of Tort Reform On Tort Case Filings, Patricia W. Moore

Faculty Articles

Does so-called "tort reform" decrease tort case filings? In Texas and other states that have enacted numerous rounds of tort reform, the answer appears to be a resounding "yes," at least as of the year 2000. More recent evidence from Oklahoma supports that conclusion and provides an interesting case study within the tort reform juggernaut.

During at least the past twenty years, tort reformers have achieved substantial legislative successes and, some would argue, public relations victories. Yet their desire for more "reform" seems insatiable, and their legislative agenda rarely sleeps.

Tort reform bills bloom perennially in the Oklahoma legislature, and …

Pro Se Litigation: Best Practices From A Judge's Perspective, Hon. Beverly W. Snukals, Glen H. Sturtevant Jr.

University of Richmond Law Review

No abstract provided.

Slides: Dam Building And Removal On The Elwha: A Prototype Of Adaptive Mismanagement And A Tribal Opportunity, William H. Rodgers, Jr.

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: William H. Rodgers, Jr., Stimson Bullitt Professor of Environmental Law, University of Washington School of Law

77 slides

The State Of Judiciary: A Corporate Perspective, Larry D. Thompson

Scholarly Works

The rule of law depends on highly talented, independent judges who conscientiously strive to ensure that the law is consistently applied in a principled and predictable manner This Essay addresses two potential threats to judicial independence and the rule of law that we believe warrant special attention at this time. First, inadequate judicial salaries pose a threat to the quality and independence of the judiciary. Judges' real pay has declined substantially over the past generation, even as the compensation of other callings within the legal profession has risen dramatically. This growing disparity in pay has prompted an increasing number of …

The Pathological Politics Of Criminal Law, William J. Stuntz

Michigan Law Review

Substantive criminal law defines the conduct that the state punishes. Or does it? If the answer is yes, it should be possible, by reading criminal codes (perhaps with a few case annotations thrown in), to tell what conduct will land you in prison. Most discussions of criminal law, whether in law reviews, law school classrooms, or the popular press, proceed on the premise that the answer is yes. Law reform movements regularly seek to broaden or narrow the scope of some set of criminal liability rules, always on the assumption that by doing so they will broaden or narrow the …

Managing Punitive Damages: A Role For Mandatory "Limited Generosity" Classes And Anti-Suit Injunctions?, Joan E. Steinman

All Faculty Scholarship

In this Article, I consider whether "limited generosity" classes may be used to determine a defendant's entire liability for punitive damages arising from a defined course of conduct. The goals of such a class action would include adequately punishing and deterring the defendant, keeping the defendant's liability within state-mandated and constitutional limits, and facilitating equitable distribution of the damages among injured plaintiffs. The Article describes the legal limits on punitive damages liability that states have established and that the Supreme Court has held substantive due process to impose, and then carefully examines whether such limits constitute a predicate for mandatory …