Law Commons^™

Negligent Hiring: Recidivism And Employment With A Criminal Record, Benjamin David Pyle

Faculty Scholarship

This paper tackles a difficult legal and policy challenge—reducing the impact of criminal justice records on job applicants’ chances in a manner that does not spur more discrimination—by looking at how another area of law, tort liability, impacts employers’ decision-making. It uses theoretical and empirical methods to study the most common reason employers report being reluctant to hire workers with a criminal record: legal liability generated by the tort of negligent hiring. While the purpose of the tort is ostensibly to protect and make whole those harmed when an employee misbehaves in a foreseeable manner, I show that, in practice, …

Event-Driven Suits And The Rethinking Of Securities Litigation, Merritt B. Fox, Joshua Mitts

Faculty Scholarship

Event-driven securities suits-ones that arise after an issuer has experienced some kind of disaster-have become increasingly prevalent in recent years. These suits are based on the fraud-on-the-market doctrine, a doctrine that ultimately gives rise to the bulk of the damages paid out in settlements and judgments pursuant to private litigation under the U.S. securities laws. The theory behind fraud-on-the-market cases is that when an issuer's share price has been inflated by a Rule-10b-5-violating misstatement, investors who purchased shares at the inflated price have suffered a compensable injury if they still hold the shares after the inflation is gone. Although these …

Characterizing Legal Implications For The Use Of Transboundary Aquifers, Gabriel Eckstein

Faculty Scholarship

Groundwater resources that traverse political boundaries are becoming increasingly important sources of freshwater in international and intranational arenas worldwide. This is a direct extension of the growing need for new sources of freshwater, as well as the impact that excessive extraction, pollution, climate change, and other anthropogenic activities have had on surface waters. It is also a function of the growing realization that groundwater respects no political boundaries, and that aquifers traverse jurisdictional lines at all levels of political geography.

Due to this growing awareness, questions pertaining to responsibility and liability are now being raised in relation to the use, …

South Korea Shatters The Paradigm: Corporate Liability, Historical Accountability, And The Second World War, Timothy Webster

Faculty Scholarship

South Korea is currently revising its interpretation of Japanese colonialism, and the fallout from World War II more generally. In 2018, the Supreme Court of South Korea issued two opinions that staked new ground in this process of legal revision. First, by holding Japanese multinational enterprises legally liable for events that took place in the early 20th century, the verdicts fissure a wall of corporate impunity that courts in Japan, the United States and many Western jurisdictions have erected over the past three decades. Second, by situating the decisions within Korea’s own colonial past, the judgments advance a post-colonial jurisprudence …

The Political Economy Of Enforcer Liability For Wrongful Police Stops, Tim Friehe, Murat C. Mungan

Faculty Scholarship

This article questions whether excessive policing practices can persist in an environment where law enforcement policies are subject to political pressures. Specifically, it considers a setting where the police decide whether to conduct stops based on the suspiciousness of a person's behavior and the potential liability for conducting a wrongful stop. We establish that the liability level that results in a voting equilibrium is smaller than optimal, and consequently, that excessive policing practices emerge in equilibrium.

The Revival Of Respondeat Superior And Evolution Of Gatekeeper Liability, Rory Van Loo

Faculty Scholarship

In an era of servants and masters, respondeat superior emerged to hold the powerful accountable for the acts of those they control. That doctrine’s significance has only grown in an economy driven by large corporations that rely heavily on legions of subsidiaries and independent contractors, such as banks deploying independent call centers, oil companies using drilling contractors, and tech platforms connecting consumers to app developers. It is widely believed that firms can avoid third- party liability for many laws by outsourcing or creating subsidiaries.

This Article shows that common narratives of the demise of third-party liability are incomplete. Respondeat superior …

Intermediaries And Private Speech Regulation: A Transatlantic Dialogue - Workshop Report, Tiffany Li

Faculty Scholarship

The Wikimedia/Yale Law School Initiative on Intermediaries and Information (WIII) at Yale Law School has released a comprehensive report synthesizing key insights from intermediary liability and online speech and expression experts in Europe and the United States.

The report focuses on the critical but complicated issue of private speech regulation on the internet and the connections between platform liability laws and fundamental rights, including free expression. The report reflects discussions held at “Intermediaries & Private Speech Regulation: A Transatlantic Dialogue,” an invitation-only workshop convened by WIII, featuring leading internet law experts from the United States and Europe.

This report highlights …

Beyond Intermediary Liability: The Future Of Information Platforms - Workshop Report, Tiffany Li

Faculty Scholarship

On February 13, 2018, WIII hosted the workshop, “Beyond Intermediary Liability: The Future of Information Platforms.” Leading experts from industry, civil society, and academia convened at Yale Law School for a series of non-public, guided discussions. The roundtable of experts considered pressing questions related to intermediary liability and the rights, roles, and responsibilities of information platforms in society. Based on conversations from the workshop, WIII published a free, publicly available report detailing the most critical issues necessary for understanding the role of information platforms, such as Facebook and Google, in law and society today. The report highlights insights and questions …

Arkansas, Meet Tarasoff: The Question Of Expanded Liability To Third Persons For Mental Health Professionals, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

Corporate Criminal Responsibility For Human Rights Violations: Jurisdiction And Reparations, Kenneth S. Gallant

Faculty Scholarship

No abstract provided.

Reconsidering Realization-Based Accounting For Equity Compensation, David I. Walker

Faculty Scholarship

The U.S. equity compensation landscape continues to evolve. Recent innovations have improved the linkage between pay and firm-specific performance, but have added complexity. Against that backdrop, this Article urges reconsideration of the accounting rules for equity pay. Under current rules, most equity pay awards are expensed based on grant date valuation with no updating for changes in value post grant. This Article advocates the adoption of a mark-to-market or realization-based approach under which the expense recorded for all equity pay awards would ultimately be trued to the value received by employees. Increasingly, equity pay awards are more analogous to commissions …

An Intentional Tort Theory Of Patents, Saurabh Vishnubhakat

Faculty Scholarship

This Article challenges the dogma of U.S. patent law that direct infringement is a strict liability tort. Impermissibly practicing a patented invention does create liability even if the infringer did not intend to infringe or know about the patent. The consensus is that this is a form of strict liability. The flaw in the consensus is that it proves too little, for the same is true of intentional torts: intent to commit the tort is unnecessary, and ignorance of the legal right is no excuse. What is relevant is intent to perform the action that the law deems tortious. So …

Cocktails On Campus: Are Libations A Liability?, Susan S. Bendlin

Faculty Scholarship

No abstract provided.

Trademark Remedies And Online Intermediaries, Stacey Dogan

Faculty Scholarship

For several years now, courts and commentators have tussled over the question of whether online intermediaries can face liability under trademark law. Because both case law and commentary have largely focused on the threshold question of "trademark use, " we know little about what specific behavior will subject intermediaries to liability and what remedies might follow. This Essay takes some preliminary steps toward addressing those questions.

Responsibility And The Negligence Standard, Joseph Raz

Faculty Scholarship

The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for actions, omissions, consequences) in terms of the relations which must exist between the action (omission, etc.) and the agents powers of rational agency if the agent is responsible for the action. The discussion involves reflections on the relations between the law and the morality of negligence, the difference between negligence and strict liability, the role of excuses and the grounds of duties to pay damages.

Scuba Diving Buddies: Rights, Obligations, And Liabilities, Phyllis G. Coleman

Faculty Scholarship

A common misconception is that scuba diving is dangerous; the reality is that divers are more likely to be hurt in their cars driving to the dive site than in an underwater accident. Arguably one reason the sport is so safe is the widespread, and often mandatory, use of the buddy system.

A buddy expects his partner to perform a variety of tasks, which include assisting during an emergency. However, a glaring omission in the legal literature is the important issue of what happens when a diver's failure to act results in his buddy's death or serious injuries. This article …

Physicians' Insurance Limits And Malpractice Payments: Evidence From Texas Closed Claims, 1990-2003, Kathryn Zeiler, Charles Silver, Bernard Black, David Hyman, William Sage

Faculty Scholarship

Physicians' insuring practices influence their incentives to take care when treating patients, their risk of making out-of-pocket payments in malpractice cases, and the adequacy of compensation available to injured patients. Yet, these practices and their effects have rarely been studied. Using Texas Department of Insurance data on 9,525 paid malpractice claims against physicians that closed 1990-2003, we provide the first systematic evidence on levels of coverage purchased by physicians with paid liability claims and how those levels affect out-of-pocket payments and patient compensation. We find that these physicians carried much less insurance than is conventionally believed, that their real primary …

What Default Rules Teach Us About Corporations; What Understanding Corporations Teaches Us About Default Rules, Tamar Frankel

Faculty Scholarship

This Article addresses corporate law's default rules, which allow corporations to waive their directors' liability for damages based on a breach of their fiduciary duty of care. Most large publicly held corporations have adopted such a waiver in their articles of association. This Article suggests that courts should limit the range of the waivers to the circumstances that existed when the voters voted and to the information they received before they voted. This Article distinguishes between public contracts (legislation) and private contracts (commercial transactions) and the default rules that apply to each. The Article shows that courts view corporations and …

A Restatement (Third) Of Intentional Torts?, Kenneth Simons

Faculty Scholarship

Some intentional tort doctrines have developed in intriguing ways since the Restatement Second was published, and other doctrines remain contentious or obscure. For example, disagreement persists about whether the tort of battery requires merely the (single) intent to make a nonconsensual contact, or the (dual) intent both (1) to contact and (2) either to harm or to offend. The single intent view is much more plausible; the dual intent view cannot make much sense of the liability of well-intentioned doctors for battery if they exceed the patient's consent, or the liability of pranksters, or the well-accepted doctrine of apparent consent. …

The Patient's Right To Safety: Improving The Quality Of Care Through Litigation Against Hospitals, George J. Annas

Faculty Scholarship

It is the consensus of experts in the patient-safety field that little has changed to improve the safety of hospital care since the Institute of Medicine's 1999 report, To Err Is Human. The report noted that in order to be successful, “safety must be an explicit organizational goal that is demonstrated by clear organizational leadership. . . . This process begins when boards of directors demonstrate their commitment to this objective by regular, close oversight of the safety of the institutions they shepherd.” Leape and Berwick agree, noting that safety cannot become an institutional priority “without more sustained and …

Spare The Rod, Spoil The Director? Revitalizing Directors' Fiduciary Duty Through Legal Liability, Lisa M. Fairfax

Faculty Scholarship

It appears that our society has tacitly agreed to spare corporate directors any significant legal liability—which includes both financial and incarceration—for failing to perform their duties as board members. Thus, over the last twenty years, there has been a virtual elimination of legal liability—particularly in the form of financial penalties—for directors who breach their fiduciary duty of care. This is true despite the fact that we entrust directors with the awesome responsibility of monitoring all of America's corporations as well as the officers and agents within those corporations. More surprisingly, this tacit agreement against legal liability for directors has persisted …

Changing Paradigms: The Liability Of Corporate Groups In Germany, René Reich-Graefe

Faculty Scholarship

The German law on affiliated companies and groups of companies ("Konzernrecht"), as embodied in the German Stock Corporation Act of 1965, as amended ("Aktiengesetz"), has often been credited for its innovative approach to the dichotomy of liability strategies relevant to corporate groups-viz., the traditional concept of entity liability based on the fundamental doctrine of the legal separateness of the corporate entity and, accordingly, resulting in a limitation of investor liability as the rule, and discrete and rare occurrences of what is almost poetically designated the "piercing of the corporate veil" ("DurchgriffshaJtung") as narrow and reluctantly crafted exceptions, and the more …

Uncovering A Gatekeeper: Why The Sec Should Mandate Disclosure Of Details Concerning Directors' And Officers' Liability Insurance Policies, Sean J. Griffith

Faculty Scholarship

This Article explores the connection between corporate governance and directors’ and officers’ (D&O) insurance. It argues that D&O insurers act as gatekeepers and guarantors of corporate governance, screening and pricing corporate governance risks to maintain the profitability of their risk pools. As a result, in a well-working insurance market, D&O insurance premiums would convey the insurer's assessment of a firm's governance quality. Simply stated, firms with better corporate governance would pay relatively low D&O premiums, while firms with worse corporate governance would pay more. This simple relationship could signal important information to investors and other capital market participants. Unfortunately, the …

The Promise Of Internet Intermediary Liability, Ronald J. Mann, Seth R. Belzley

Faculty Scholarship

The Internet has transformed the economics of communication, creating a spirited debate about the proper role of federal, state, and international governments in regulating conduct related to the Internet. Many argue that Internet communications should be entirely self-regulated because such communications cannot or should not be the subject of government regulation. The advocates of that approach would prefer a no-regulation zone around Internet communications, based largely on the unexamined view that Internet activity is fundamentally different in a way that justifies broad regulatory exemption. At the same time, some kinds of activity that the Internet facilitates undisputedly violate widely shared …

Joint And Several Liability In Minnesota: The 2003 Model, Michael K. Steenson

Faculty Scholarship

The 2003 amendment to Minnesota’s Comparative Act can be assessed in various ways. Whether it will have the economic impact its proponents suggest it will have is a question that is not susceptible of a ready answer now, or perhaps in the immediate future. From a fairness standpoint, any assessment of the amendment has to take into consideration the full reach of the Comparative Fault Act. It is important to understand that on balance the Act works to the disadvantage of the plaintiff in a variety of ways. The plaintiff cannot recover if the plaintiff’s fault is greater than the …

Infringement Once Removed: The Perils Of Hyperlinking To Infringing Content, Stacey Dogan

Faculty Scholarship

This Article contends that the basic premise of Sony---that context and effect must play a role in evaluating allegations of secondary liability for copyright infringement-has application beyond the isolated case of equipment manufacture. More specifically, I propose a modified Sony framework for evaluating secondary liability for linking to infringing content. While this approach repudiates the strict view of secondary liability in favor of a more nuanced analysis, it stops short of advocating wholesale immunity for linkers. To the contrary, I contend that certain links, like certain acts of direct infringement, threaten copyright law's incentives with few compensating benefits to the …

Arkansas's Revised Article 3: User Caution Advised!!, Sarah Howard Jenkins

Faculty Scholarship

No abstract provided.

Recovery For Economic Loss Following The Exxon Valdez Oil Spill, Victor P. Goldberg

Faculty Scholarship

The physical cleanup following one of the worst oil spills in history, that of the Exxon Valdez, is done. The legal cleanup, however, has barely begun. Over 100 law firms participating in over 200 suits in federal and state courts involving more than 30,000 claims are presently engaged in litigation. Fishermen, cannery workers, fishing lodges, tour boat operators, oil companies whose shipments were delayed, and even California motorists facing higher gasoline prices have filed claims against Exxon and its fellow defendants.

Most claimants face a formidable roadblock, the so-called Robins doctrine. Under Robins Dry Dock & Repair Co. v. Flint …

Keeping The Pierringer Promise: Fair Settlements And Fair Trials, Peter B. Knapp

Faculty Scholarship

This article explores why Perringer releases have failed to promise fairness to the nonsettling defendant. For over thirty years, Pierringer releases have been part of the ebb and flow of civil litigation. In 1978, the Minnesota Supreme Court officially approved the use of Pierringer releases in Minnesota. When first adopted, the release seemed to promise something for everyone. The Pierringer release even offered a promise of fairness to the nonsettling defendant: Be assured that, no matter what the outcome of trial, you will pay no more than your “fair share” of the verdict. Unfortunately, however, largely because of the impact …

Government Official Torts And The Takings Clause: Federalism And State Sovereign Immunity, Jack M. Beermann

Faculty Scholarship

In this article, I argue that state sovereign and official immunities, insofar as they bar recovery when private parties would be liable for similar conduct, are unconstitutional under the takings clause of the fifth amendment, as applied to the states under the fourteenth.²² A state's refusal to compensate plaintiffs for the tortious damage or destruction of property should be redressed by the federal courts in civil actions brought under § 1983.

Section I of this article provides background through a discussion of the Supreme Court's treatment of the problem of torts committed by government officials, primarily in procedural due …