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Full-Text Articles in Law
Liability Design For Autonomous Vehicles And Human-Driven Vehicles: A Hierarchical Game-Theoretic Approach, Xuan Di, Xu Chen, Eric L. Talley
Liability Design For Autonomous Vehicles And Human-Driven Vehicles: A Hierarchical Game-Theoretic Approach, Xuan Di, Xu Chen, Eric L. Talley
Faculty Scholarship
Autonomous vehicles (AVs) are inevitably entering our lives with potential benefits for improved traffic safety, mobility, and accessibility. However, AVs’ benefits also introduce a serious potential challenge, in the form of complex interactions with human-driven vehicles (HVs). The emergence of AVs introduces uncertainty in the behavior of human actors and in the impact of the AV manufacturer on autonomous driving design. This paper thus aims to investigate how AVs affect road safety and to design socially optimal liability rules in comparative negligence for AVs and human drivers. A unified game is developed, including a Nash game between human drivers, a …
Class Actions In The Era Of Trump: Trends And Developments In Class Certification And Related Issues, John C. Coffee Jr., Alexandra D. Lahav
Class Actions In The Era Of Trump: Trends And Developments In Class Certification And Related Issues, John C. Coffee Jr., Alexandra D. Lahav
Faculty Scholarship
In this memorandum prepared for the Annual ABA National Institute on Class Actions, Professors Coffee and Lahav review and assess developments in class certification over recent years, and track trends in approaches to certification. Special attention is given to securities litigation, the use of confidential witnesses, ascertainability, attorney's fees, standing, mootness, statutes of repose, and the impact of recent Supreme Court decisions, including Halliburton II and Spokeo.
Driverless Cars And The Much Delayed Tort Law Revolution, Andrzej Rapaczynski
Driverless Cars And The Much Delayed Tort Law Revolution, Andrzej Rapaczynski
Faculty Scholarship
The most striking development in the American tort law of the last century was the quick rise and fall of strict manufacturers’ liability for the huge social losses associated with the use of industrial products. The most important factor in this process has been the inability of the courts and academic commentators to develop a workable theory of design defects, resulting in a wholesale return of negligence as the basis of products liability jurisprudence. This article explains the reasons for this failure and argues that the development of digital technology, and the advent of self-driving cars in particular, is likely …
Licensing Commercial Value: From Copyright To Trademarks And Back, Jane C. Ginsburg
Licensing Commercial Value: From Copyright To Trademarks And Back, Jane C. Ginsburg
Faculty Scholarship
Copyright and trademarks often overlap, particularly in visual characters. The same figure may qualify as a pictorial, graphic or sculptural work on the one hand, and as a registered (or at least used) trademark on the other. The two rights, though resting on distinct foundations, tend to be licensed together. Trademarks symbolize the goodwill of the producer, and are protected insofar as copying that symbol is likely to confuse consumers as to the source or approval of the goods or services in connection with which the mark is used. For famous marks, the dilution action grants a right against uses …
Fee-Shifting Bylaw And Charter Provisions: Can They Apply In Federal Court? – The Case For Preemption, John C. Coffee Jr.
Fee-Shifting Bylaw And Charter Provisions: Can They Apply In Federal Court? – The Case For Preemption, John C. Coffee Jr.
Faculty Scholarship
In the first months after a decision of the Delaware Supreme Court upholding a fee-shifting bylaw under which the unsuccessful plaintiff shareholder was required to reimburse all defendants for their legal and other expenses in the litigation, some 24 public companies adopted a similar provision – either by means of a board-adopted bylaw or by placing such a provision in their certificate of incorporation (in the case of companies undergoing an IPO). In effect, private ordering is introducing a one-sided version of the “loser pays” rules. Indeed, as drafted, these provisions typically require a plaintiff who is not completely successful …
Law, Economics, And The Burden(S) Of Proof, Eric L. Talley
Law, Economics, And The Burden(S) Of Proof, Eric L. Talley
Faculty Scholarship
This chapter presents an overview of the theoretical law and economics literature on the burden of proof within tort law. I begin by clarifying core legal definitions within this topic, demonstrating that the burden of proof actually refers to at least five doctrinal concepts that substantially overlap but are not completely interchangeable. I then provide a conceptual roadmap for analyzing the major extant contributions to this topic within theoretical law and economics, emphasizing three key dimensions that organize them: (a) where they fall in the positive-normative spectrum; (b) what type of underlying modeling framework they employ (ranging from decision theoretic …
The New Class Action Landscape: Trends And Developments In Class Certification And Related Topics, John C. Coffee Jr., Alexandra D. Lahav
The New Class Action Landscape: Trends And Developments In Class Certification And Related Topics, John C. Coffee Jr., Alexandra D. Lahav
Faculty Scholarship
In this memorandum, Professors Coffee and Lahav describe and assess the highlights of class certification rulings from 2005 to 2012, and track trends in approaches to certification.
Responsibility And The Negligence Standard, Joseph Raz
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.
Of Mutant Copyrights, Mangled Trademarks, And Barbie's Beneficence: The Influence Of Copyright On Trademark Law, Jane C. Ginsburg
Of Mutant Copyrights, Mangled Trademarks, And Barbie's Beneficence: The Influence Of Copyright On Trademark Law, Jane C. Ginsburg
Faculty Scholarship
In Dastar Corp. v. Twentieth Century Fox Film Corp. Justice Scalia colorfully warned against resort to trademarks law to achieve protections unattainable by copyright, lest these claims generate "a species of mutant copyright law that limits the public's 'federal right to "copy and to use,"' expired copyrights." The facts of that controversy, in which the claimant appeared to be invoking time-unlimited trademark protection to end-run the exhausted (unrenewed) copyright term in a motion picture, justified the apprehension that unbridled trademark rights might stomp, Godzilla-like, over more docile copyright prerogatives. Unfortunately, in the Court's eagerness to forestall Darwinian disaster in intellectual …
Optimal Liability For Terrorism, Darius N. Lakdawalla, Eric L. Talley
Optimal Liability For Terrorism, Darius N. Lakdawalla, Eric L. Talley
Faculty Scholarship
This paper analyzes the normative role for civil liability in aligning terrorism precaution incentives, when the perpetrators of terrorism are unreachable by courts or regulators. We consider the strategic interaction among targets, subsidiary victims, and terrorists within a sequential, game-theoretic model. The model reveals that, while an "optimal" liability regime indeed exists, its features appear at odds with conventional legal templates. For example, it frequently prescribes damages payments from seemingly unlikely defendants, directing them to seemingly unlikely plaintiffs. The challenge of introducing such a regime using existing tort law doctrines, therefore, is likely to be prohibitive. Instead, we argue, efficient …
Liberalism And Tort Law: On The Content And Economic Efficiency Of A Liberal Common Law Of Torts, Richard S. Markovits
Liberalism And Tort Law: On The Content And Economic Efficiency Of A Liberal Common Law Of Torts, Richard S. Markovits
Faculty Scholarship
This Article has three parts. Part I begins by delineating the protocol one should use to determine whether a society is an immoral society, an amoral society, a goal-based society of moral integrity, or a rights-based society of moral integrity (i.e., a society that engages in a bifurcated prescriptive-moral practice that strongly distinguishes moral-rights claims (about the just) from moral-ought claims (about the good), that is committed to the lexical priority of the just over the good, and that fulfills its commitments to some hard-to-specify, requisite extent). Part I then proceeds to outline the protocol one should use to determine …
Berne Without Borders: Geographic Indiscretion And Digital Communications, Jane C. Ginsburg
Berne Without Borders: Geographic Indiscretion And Digital Communications, Jane C. Ginsburg
Faculty Scholarship
This lecture examines the role of borders in the Berne Convention at the time of the treaty's first passage in 1886, and today. The later 19th century was an era of increasing commerce and communication among countries whose domestic production and reproduction of works of authorship had vastly increased, thanks in part to new technologies, such as photography, lithography, and high-speed printing. But at that time, the frontiers between nations often frustrated authors' hopes for control over, or at least compensation for, the international exploitation of their works. Authors' rights ceased at their national boundaries; the world beyond foreboded not …
Toward Supranational Copyright Law? The Wto Panel Decision And The "Three-Step Test" For Copyright Exceptions, Jane C. Ginsburg
Toward Supranational Copyright Law? The Wto Panel Decision And The "Three-Step Test" For Copyright Exceptions, Jane C. Ginsburg
Faculty Scholarship
A dispute resolution panel of the World Trade Organization in June 2000 held the United States in contravention of its obligation under art. 13 of the TRIPs accord to "confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder." In the dispute resolution proceeding, initiated by the European Union at the behest of the Irish performing rights organization, the contested exception, enacted in the 1998 "Digital Millennium Copyright Act," exempted a broad range of retail and …