The Inconsistencies Of Consent, 2022 Loyola University New Orleans College of Law
The Inconsistencies Of Consent, Chunlin Leonhard
Catholic University Law Review
U.S. legal scholars have devoted a lot of attention to the role that consent has played in laws and judicial consent jurisprudence. This essay contributes to the discussion on consent by examining judicial approaches to determining the existence of consent in three selected areas--contracts, tort claims involving medical treatment, and criminal cases involving admissibility of confessions, from the late nineteenth century until the present. This article examines how courts have approached the basic factual question of finding consent and how judicial approaches in those areas have evolved over time. The review shows that the late 19th century saw courts ...
Liability For Public Deception: Linking Fossil Fuel Disinformation To Climate Damages, 2022 Columbia Law School, Sabin Center for Climate Change Law
Liability For Public Deception: Linking Fossil Fuel Disinformation To Climate Damages, Jessica A. Wentz, Benjamin Franta
Sabin Center for Climate Change Law
Over two dozen U.S. states and municipalities have filed lawsuits against fossil fuel companies, seeking abatement orders and compensation for climate damages based on theories such as public nuisance, negligence, and failure to warn, and alleging these companies knew about the dangers of their products, intentionally concealed those dangers, created doubt about climate science, and undermined public support for climate action. This Article examines how tort plaintiffs can establish a causal nexus between public deception and damages, drawing from past litigation, particularly claims filed against manufacturers for misleading the public about the risks of tobacco, lead paint, and opioids ...
Medical Harm Without Negligence, 2022 University of Houston Law Center
Medical Harm Without Negligence, Valerie Gutmann Koch
Fordham Law Review
In December 2019, seven women from one family underwent highly invasive surgeries based on genetic test results that indicated that each were at significant risk of developing cancer by age seventy. Subsequently, after procedures that (among other things) permanently scarred and disfigured their bodies and ended their chances of having biological children, they learned that their particular mutation was not, in fact, pathogenic.
This Article focuses on a previously under-recognized problem: what happens when a patient’s previously classified pathogenic variant is downgraded to uncertain (or even benign) status? Intuitively, it might seem that the genetic testing company, the surgeons ...
Due Process Alignment In Mass Restructurings, 2022 University of Miami School of Law
Due Process Alignment In Mass Restructurings, Sergio Campos, Samir D. Parikh
Fordham Law Review
Mass tort defendants have recently begun exiting multidistrict litigation by filing for bankruptcy. This new strategy ushers defendants into a far more hospitable forum that offers accelerated resolution of all state and federal claims held by both current and future victims. Bankruptcy’s structural, procedural, and substantive benefits also provide defendants with unique optionality.
Bankruptcy’s resolution promise is alluring, but the process relies on a very large assumption: that future victims can be compelled to relinquish property rights in their cause of action against the corporate defendant and others without consent or notice. Bankruptcy builds an entire resolution structure ...
Aggregation And Abuse: Mass Torts In Bankruptcy, 2022 Brooklyn Law School
Aggregation And Abuse: Mass Torts In Bankruptcy, Edward J. Janger
Fordham Law Review
Bankruptcy courts have become the favored forum for large corporate defendants who seek global resolution of mass tort liability claims. Whether this forum choice benefits the victims of those mass torts or facilitates their exploitation is unclear. The features of bankruptcy law that have made bankruptcy court attractive to defendants can be efficiency enhancing, but they can also be used opportunistically and beyond their proper scope. As a result, their use must be subject to safeguards. The good news is that, where torts of the debtor itself are concerned, the U.S. Bankruptcy Code already contains the necessary tools. This ...
Dissonance And Distress In Bankruptcy And Mass Torts, 2022 University of California, Berkeley School of Law
Dissonance And Distress In Bankruptcy And Mass Torts, Andrew D. Bradt, Zachary D. Clopton, D. Theodore Rave
Fordham Law Review
This Essay reviews the highly successful Fordham Law Review symposium entitled Mass Torts Evolve: The Intersection of Aggregate Litigation and Bankruptcy, held in 2022. The symposium brought together judges, scholars, and practitioners who work on multidistrict litigation (MDL), bankruptcy, or both. The symposium was successful because it brought these groups into conversation at a time when high-profile mass tort defendants are increasingly turning to bankruptcy to escape MDL, while others involved in the MDL process seek to keep them in. The symposium was also successful—and distressing, in our view—because it highlighted disturbing trends in complex litigation.
This Essay ...
Covid-19 Aggregate Litigation: The Search For The Upstream Wrongdoer, 2022 Lewis & Clark Law School
Covid-19 Aggregate Litigation: The Search For The Upstream Wrongdoer, Robert H. Klonoff
Fordham Law Review
The COVID-19 pandemic has generated many suits—including thousands of class actions—in which plaintiffs claim that defendants caused economic or health-related harm. Although the COVID-19 context may have led many plaintiffs’ lawyers to believe that the cases would be received with great sympathy, courts thus far have been very cautious, focusing closely—as they do in non-COVID cases—on whether the defendant has breached clear contractual commitments or has engaged in tortious or other wrongdoing. If anything, courts have been more skeptical and cautious in the COVID-19 context, recognizing that everyone has suffered due to the pandemic and that ...
The New Mass Torts Bargain, 2022 Lewis & Clark Law School
The New Mass Torts Bargain, Samir D. Parikh
Fordham Law Review
Mass torts create a unique scale of harm and liabilities. Corporate tortfeasors are desperate to settle claims but condition settlement on the resolution of substantially all claims at a known price—commonly referred to as a global settlement. Without this, corporate tortfeasors are willing to continue with protracted and fragmented litigation across jurisdictions. Global settlements can be elusive in these cases. Mass torts are oftentimes characterized by heterogeneous victim groups that include both current victims and future victims—individuals whose harm has not yet manifested and may not do so for years. Despite this incongruence, future-victim claims must be aggregated ...
The Constitutional Problem Of Nondebtor Releases In Bankruptcy, 2022 Georgetown University Law Center
The Constitutional Problem Of Nondebtor Releases In Bankruptcy, Adam J. Levitin
Fordham Law Review
In recent years, nondebtor releases have become a common feature of big-case Chapter 11 bankruptcy practice. Nondebtor releases involve the release of creditor claims against third-party nondebtors pursuant to a bankruptcy plan confirmation order. Some nondebtor releases are consensual, meaning that they are done with the assent of the releasing creditor, but some are not.
This Essay argues that all nonconsensual nondebtor releases in bankruptcy are unconstitutional. The constitutional infirmities of nondebtor releases are layered: all non debtor releases—consensual or nonconsensual—are outside the scope of Congress’s authority under an original understanding of the Bankruptcy Clause; all nonconsensual ...
Unsticking American Tort Theory, 2022 University of Cincinnati College of Law
Unsticking American Tort Theory, Benjamin Sundholm
University of Cincinnati Law Review
In the United States, the debate over the foundations of tort law is at an impasse. On one side of the dispute, economic theorists contend that tort law is primarily concerned with the forward-looking aim of maximizing societal wealth. The most prominent critics of this view claim that an economic analysis of tort law cannot explain the field’s backward-looking concern with achieving corrective justice by remedying wrongs. Despite the strength of this critique, economic theorists have a legitimate response available to them: corrective justice describes the reparative aspect of tort law, but it stops short of providing a justificatory ...
Collaborative Constructions: Designing High School History Curriculum With The Lost & Found Game Series, 2022 Rochester Institute of Technology
Collaborative Constructions: Designing High School History Curriculum With The Lost & Found Game Series, Owen Gottlieb, Shawn Clybor
This chapter addresses design research and iterative curriculum design for the Lost & Found games series. The Lost & Found card-to-mobile series is set in Fustat (Old Cairo) in the twelfth century and focuses on religious laws of the period. The first two games focus on Moses Maimonides’ Mishneh Torah, a key Jewish law code. A new expansion module which was in development at the time of the fieldwork described in this article that introduces Islamic laws of the period, and a mobile prototype of the initial strategy game has been developed with support National Endowment for the Humanities. The series pays ...
"Pemanfaatan Barang Milik Daerah Kabupaten Penajam Paser Utara (Studi Kasus Penyerahan Pengelolaan Sisi Darat Pelabuhan Buluminung)", Melindya Santoso Putri
The Regent as the Regional Head in the North Penajam Paser Regency should carry out Regional Property Management (BMD). With the existence of five forms of utilization in the form of rental, borrowing, utilization cooperation, building to handover or building handover, and cooperation in providing infrastructure based on PP 27/2014, PP 28/2020, Permendagri 19/2016, Pemda Penajam Paser North 11/2018. A port is a place consisting of land and or waters with certain boundaries as a place for government and company activities. There is a legal problem, namely in the transition of the Management of the Land ...
Analisis Terhadap Kesepakatan Lisan Untuk Menjalankan Waralaba Sesuai Dengan Perjanjian Waralaba Yang Telah Berakhir (Studi Kasus Putusan Nomor 52/Pdt.G/2019 Jo. Putusan Nomor 396/Pdt/2021/Pt Dki, 2022 Universitas Indonesia
Analisis Terhadap Kesepakatan Lisan Untuk Menjalankan Waralaba Sesuai Dengan Perjanjian Waralaba Yang Telah Berakhir (Studi Kasus Putusan Nomor 52/Pdt.G/2019 Jo. Putusan Nomor 396/Pdt/2021/Pt Dki, Fahira Zahara Ghassani
Franchising is a business system that makes it easy for entrepreneurs to expand their marketing. Therefore, before running a franchise business, the parties must make a franchise agreement that aims to protect the interests of the parties properly. A franchise agreement made in written form can be the basis or evidence if one of the parties defaults. However, there are still franchise businesses that make agreements in the form of unwritten or verbal actors, even though PP 42/2007 and Permendag 71/2019 require written agreements. This is what becomes between the franchisor and the franchisees involved in the franchise ...
Tinjauan Yuridis Pengesahan Anak Luar Kawin Yang Dicatatkan Setelah Ayah Dari Anak Meninggal Dunia (Studi Kasus: Penetapan Pengadilan Negeri Jakarta Pusat Nomor: 36/Pdt.P/2020/Pn.Jkt.Pst.), 2022 University of Indonesia
Tinjauan Yuridis Pengesahan Anak Luar Kawin Yang Dicatatkan Setelah Ayah Dari Anak Meninggal Dunia (Studi Kasus: Penetapan Pengadilan Negeri Jakarta Pusat Nomor: 36/Pdt.P/2020/Pn.Jkt.Pst.), Devina Delfian
The birth of a child from an unregistered polygamous marriage according to the prevailing laws is a juridical phenomenon that cannot be denied. As the part of legal events, unregistered polygamous marriages can bring further legal consequences to children born out of wedlock, which in law children born out of wedlock have a lower position than children born from legal marriages. Because of these differences, the law provides a solution for children born out of wedlock to have the same legal status as children born from legal marriages, namely through child legalization. This research will be continued by focusing on ...
Perlawanan Pihak Ketiga Sebagai Pemilik Benda Terhadap Benda Yang Dijadikan Jaminan Fidusia Tanpa Persetujuan Pemilik Benda (Studi Kasus: Putusan Mahkamah Agung 1012 K/Pdt/2021), 2022 University of Indonesia
Perlawanan Pihak Ketiga Sebagai Pemilik Benda Terhadap Benda Yang Dijadikan Jaminan Fidusia Tanpa Persetujuan Pemilik Benda (Studi Kasus: Putusan Mahkamah Agung 1012 K/Pdt/2021), Aditya Nabilah Lubis
Property rights that have been specifically and comprehensively regulated in the Civil Code in Indonesia give the impression that the principle of property rights has been perfectly regulated, but in practice there are still gaps in the owner's rights to objects that are guaranteed not being protected properly. This thesis will discuss the problems caused by objects that are used as fiduciary guarantees in a credit agreement without the knowledge of the owner of the object (by committing fraud) as well as legal protection that can be given to the owner of the object and creditors who receive fiduciary ...
Efektivitas Alat Bukti Dalam Pembuktian Suatu Perjanjian Lisan, 2022 University of Indonesia
Efektivitas Alat Bukti Dalam Pembuktian Suatu Perjanjian Lisan, Aaron Pietter
Verbal agreement is something that cannot be separated in our daily life. It is confirmed that in every moment we always make a verbal agreement consciously or unconsciously. Within the scope of the court, verbal agreement is also used by the parties to prove their arguments so they can earn their rights and fullfill the other party obligations. Compared to the other type of evidence, verbal agreement have its own power and effectiveness level when being used as a legitive evidence before the court. To observe about the application and effectiveness of a verbal agreement as a legitive evidence before ...
Perlindungan Hukum Kreditur Terhadap Peralihan Jaminan Hak Tanggungan Dalam Jual Beli Piutang Melalui Cessie (Studi Kasus: Putusan Pengadilan Negeri Nomor 79/Pdt.G/2019 Pn Tab Dan Putusan Peninjauan Kembali Nomor 754 Pk/Pdt/2011), 2022 Universitas Indonesia
Perlindungan Hukum Kreditur Terhadap Peralihan Jaminan Hak Tanggungan Dalam Jual Beli Piutang Melalui Cessie (Studi Kasus: Putusan Pengadilan Negeri Nomor 79/Pdt.G/2019 Pn Tab Dan Putusan Peninjauan Kembali Nomor 754 Pk/Pdt/2011), Vanessa Maurizkha
Banks act as creditors for selling receivables through a cessie to credit. Problems that arise after the transfer of receivables are identical to the relevance of the validity of the cessie to the mortgage guarantee transfer stipulated in the main agreement. There are differences in the legal concequences in each conditions. The problems discussed in this research are the mechanism through a cessie in conventional banks according to Indonesian law, the development of the regulation on registration of transfer of mortgage, and the legal consequences of the act (cessie) on objects of mortgage guarantee based on the District Court Decision ...
Perbandingan Hukum Pemutusan Surat Kuasa Secara Sepihak Antara Indonesia Dan Belanda Sebagai Bentuk Wanprestasi (Studi Putusan Nomor 704/Pdt.G2017/Pn.Mdn), Karsten Maruli Rogate Hutauruk
The power of attorney agreement is commonly found in dealing with a legal problem that carried out by the community, both in Indonesia and the Netherlands. In Indonesia the Power of Attorney Agreement, is regulated in Articles 1823 and 1814 of the Book of Civil Law which states that the Principal could revoke power of attorney at any time, but turns out that in practice there is Power of Attorney that can not be revoked called Irrevocable Power of Attorney. Regulated in the Instruction of the Internal Affairs Minister No. 14/1982 and Government Regulation No. 24 of 1997 that ...
Perlindungan Hukum Bagi Kreditur Dalam Eksekusi Perjanjian Kredit Dengan Jaminan Hak Tanggungan, 2022 University of Indonesia
Perlindungan Hukum Bagi Kreditur Dalam Eksekusi Perjanjian Kredit Dengan Jaminan Hak Tanggungan, Muhammad Affandi
One of the guarantees in the credit agreement is a mortgage guarantee, where in the mortgage guarantee agreement, the assets guaranteed by the debtor to be used as collateral are land rights which can be in the form of buildings, plants, and works that already exist or will exist which are one unit with the land, and which belongs to the holder of the land rights whose burden is expressly stated in the Deed of Granting Mortgage concerned. From this study, the author aims to examine how legal protection for creditors in the execution of credit agreements with collateral rights ...
Analisis Pencantuman Klausul Kompensasi Dalam Perjanjian Perkawinan Sebagai Implementasi Asas Kebebasan Berkontrak, 2022 University of Indonesia
Analisis Pencantuman Klausul Kompensasi Dalam Perjanjian Perkawinan Sebagai Implementasi Asas Kebebasan Berkontrak, Dinda Ramadhani
Marriage agreement is commonly recognized by the society nowadays. Article 29 Subsection (2) of Indonesian Marriage Act only regulate a limitation that the content of marriage agreement can not violate the law, religion, and ethics. There are different kind of opinions regarding whether marriage agreement can only regulate regarding matrimonial assets in accordance with Indonesian civil code or it can regulate in every aspect as long as it does not cross the limitation set by Article 29 Subsection (2). This research analyses about the inclusion of compensation clause in marriage agreement as an implementation of freedom of contract principle. Method ...