Law Commons^™

Squaring The Cercla: Superfund And The Superfund Task Force, Manny Marcos

Fordham Environmental Law Review

The Superfund Task Force recently released its final report on the implementation of its recommendations for improving the Superfund program. The Task Force was given five goals for improving the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA’s”), implementation. These goals are to expedite cleanup and remediation, re-invigorate responsible party cleanup and reuse, encourage foreign investment, promote redevelopment and community revitalization, and engage with partners and stakeholders. While the Task Force’s recommendations have improved CERCLA’s implementation, many of CERCLA’s structural flaws remain intact. Specifically, CERCLA still has a severe shortage of funding, an unfair liability scheme, perverse incentives, …

The Scope Of Canadian Defamation Injunctions, Hilary Young

Dalhousie Law Journal

Free speech is engaged when courts enjoin defamatory or allegedly defamatory speech on an interlocutory or permanent basis. This paper explores the justifiable scope of defamation injunctions and compares that to what courts do.

The study reveals that Canadian defamation injunctions regularly go far beyond what is justifiable. For example, 16% of defamation injunctions involved orders not to speak about the plaintiff at all, which is overbroad since that includes true and otherwise lawful speech. Other orders prohibit saying disparaging (as opposed to unlawful) things—again overbroad. Orders not to defame may be vague because it is unclear whether, in context, …

Computational Complexity And Tort Deterrence, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

Standard formulations of the economic model of tort deterrence constitute the injurer as the unboundedly rational bad man. Unbounded rationality implies that the injurer can always compute the solution to his care-taking problem. This in turn implies that optimal liability rules can provide robust deterrence, for they can always induce the injurer to take socially optimal care. In this paper I examine the computational complexity of the injurer's care-taking problem. I show that the injurer's problem is computationally tractable when the precaution set is unidimensional or convex, but that it is computationally intractable when the precaution set is multidimensional and …

Doe V. Nestle, S.A.: Chocolate And The Prohibition On Child Slavery, Megan M. Coppa

Pace International Law Review

West Africa is presently home to approximately 1.5 million acres of cocoa farmland, which subsequently produces 70% of the world’s current chocolate supply. Côte d’Ivoire, also known as the Ivory Coast, is one of the largest cocoa producing countries within West Africa.

The increase of farmland and the need to control the deteriorating conditions have always created a demand for farm workers. Regrettably, more than 1.5 million cocoa farm workers in West Africa are currently children. These child workers are exposed to hazardous dust, flames, smoke, and chemicals, are required to utilize dangerous tools that they are not properly trained …

Sunshine Patriot Or Cold War Casualty?: An Examination Of Wrongful Exposure Suits Brought By Nuclear Complex Employees, Christopher S. Turner

Journal of Natural Resources & Environmental Law

No abstract provided.

Does The Future Of Product Liability Actions Change After Hawkins V. Leslie's Pool Mart, Inc.?, Lisa N. Hayden

Journal of Natural Resources & Environmental Law

No abstract provided.

Pneumo Abex Corp. V. High Point, Thomasville & Denton Railroad, And Cercla "Arranger Liability", Jason C. Kuhlman

Journal of Natural Resources & Environmental Law

No abstract provided.

Drilling For Admiralty: The Ocsla As A Bar To Maritime Law In Ocs Drilling Accidents, Christopher W. Sanborn

William & Mary Business Law Review

Maritime law is ultimately driven by commerce. The seas were—and continue to be—one of the easiest ways to transfer goods over large distances. Yet maritime commerce has a relative newcomer that is not shipping or transportation focused—offshore drilling. Should admiralty and maritime law, intended to protect seamen and keep ships engaged in maritime commerce apply to personal injury claims on drilling rigs on the Outer Continental Shelf? This Note argues that they should not apply for two reasons. In Lozman v. Riviera Beach, the Supreme Court announced that a “vessel” should appear to the reasonable observer as intended to carry …

Environmental Justice Class Action Rises Above The Rubbish: The Third Circuit Revives Common-Law Nuisance Remedies In Baptiste V. Bethlehem Landfill Co., Kyra G. Bradley

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Don't You Know That You're Toxic? Cercla Section 113(H) Challenges, Sovereign Immunity, And Perfluoroalkyl Substances In Pennsylvania Drinking Water In Giovanni V. Navy, Stephanie J. Oppenheim

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Getting Away With Murder: How California State Law Determined Recovery In First Roundup Cancer Case Johnson V. Monsato Co., Eliza L. Quattlebaum

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Recovering The Tort Remedy For Federal Official Wrongdoing, Gregory Sisk

Notre Dame Law Review

As the Supreme Court weakens the Bivens constitutional tort cause of action and federal officers avoid liability for unlawful behavior through qualified immunity, we should recollect the merit of the common-law tort remedy for holding the federal government accountable for official wrongdoing. For more than a century after ratification of the Constitution, federal officers who trespassed on the rights of American citizens could be held personally liable under common-law tort theories, but then routinely were indemnified by the government.

The modern Federal Tort Claims Act (FTCA) roughly replicates the original regime for official wrongdoing by imposing liability directly on the …

A Scapegoat Theory Of Bivens, Katherine Mims Crocker

Faculty Scholarship

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems—and the in-groups’ complicity in perpetuating them—directly.

This Essay suggests that it may be productive to view the Bivens regime’s rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

Deeply Fake, Deeply Disturbing, Deeply Constitutional: Why The First Amendment Likely Protects The Creation Of Pornographic Deepfakes, Bradley Waldstreicher

Cardozo Law Review

No abstract provided.

A Scapegoat Theory Of Bivens, Katherine Mims Crocker

Faculty Publications

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems--and the in-groups' complicity in perpetuating them--directly.

This Essay suggests that it may be productive to view the Bivens regime's rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

Going Rogue: The Supreme Court's Newfound Hostility To Policy-Based Bivens Claims, Joanna C. Schwartz, Alexander A. Reinert, James E. Pfander

Articles

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court held that a proposed Bivens remedy was subject to an exacting special factors analysis when the claim arises in a “new context.” In Ziglar itself, the Court found the context of the plaintiffs’ claims to be “new” because, in the Court’s view, they challenged “large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners.” Bivens claims for damages caused by unconstitutional policies, the Court suggested, were inappropriate.

This Essay critically examines the Ziglar Court’s newfound hostility to policy-based Bivens claims. We show that an …

The Relevance Of Defendants’ Wealth For Forward-Looking, Backward-Looking, And Mixed Accounts Of Tort Damages, Michael Pressman

Chicago-Kent Law Review

No abstract provided.

Understanding The Nature And Dimensions Of Litigation Crowdfunding: A Visual Analytics Approach, Viju Raghupathi, Jie Ren, Wullianallur Raghupathi

Publications and Research

The escalating cost of civil litigation is leaving many defendants and plaintiffs unable to meet legal expenses such as attorney fees, court charges and others. This significantly impacts their ability to sue or defend themselves effectively. Related to this phenomenon is the ethics discussion around access to justice and crowdfunding. This article explores the dimensions that explain the phenomenon of litigation crowdfunding. Using data from CrowdJustice, a popular Internet fundraising platform used to assist in turning legal cases into publicly funded social cases, we study litigation crowdfunding through the lenses of the number of pledges, goal achievement, target amount, length …

Deodand, Brian L. Frye

Seattle University Law Review Online

Deodands are a delightful example of a common law doctrine that caused something to happen: the Crown was enabled to tax tortfeasors. But not in a way anyone expected at the time or anyone understands today. Look on their logic and despair. You’ll never figure it out, no matter how hard you try. And that’s what makes them so lyrical. The concept of the deodand is beautiful even though we can’t understand it. Or rather, it’s beautiful because we can’t understand it. If we understood deodands, surely they would be as prosaic as life insurance and conceptual art.

In 1964, …

Injuries To Third Parties Arising From Oil & Gas Operations: An Analytical Framework For Examining Indemnity And Additional Insured Issues, Patrick S. Gerald, Holly B. Williams

Journal of Natural Resources & Environmental Law

No abstract provided.

Brief Of Amicus Curiae Professors Elizabeth A. Clark, Robert F. Cochran, Jr., Carl H. Esbeck, David F. Forte, Richard W. Garnett, Christopher C. Lund, Michael W. Mcconnell, Michael P. Moreland, Robert J. Pushaw, And David A., Skeel, Supporting Petitioners, David Forte, Elizabeth A. Clark, Robert F. Cochran Jr., Carl H. Esbeck, Richard W. Garnett, Christopher C. Lund, Michael W. Mcconnell, Michael P. Moreland, Robert J. Pushaw, David A. Skeel

Law Faculty Briefs and Court Documents

The case concerns the "church autonomy doctrine" based on the Free Exercise Clause of the First Amendment, which declares that courts may not inquire into matters of church government or into disputes of faith and doctrine. Will McRaney was fired from a leadership position in the Southern Baptist Convention because of a conflict over policies relating to the expansion of the Baptist faith. He sued the Southern Baptist Convention in tort.

The district court dismissed the suit on the grounds of the church autonomy doctrine. The Fifth Circuit reversed the district court's dismissal as "premature," asserting that there were possible …

Brief For Plaintiff-Appellee, Carroll V. Trump, No. 20-3977 (2nd Cir. Apr. 16, 2021), Leah Litman, Roberta A. Kaplan, Joshua A. Matz, Raymond P. Tolentino

Appellate Briefs

Introduction

In June 2019, E. Jean Carroll revealed that former President Donald J. Trump had sexually assaulted her decades earlier. Trump denied it, saying he did not know who Carroll was and had never met her. But he did not stop there. He launched a series of vicious, personal attacks. He implied that she was too ugly to rape; that she had falsely accused other men of sexual assault; and that she had invented her story for money, or to sell books, or to advance a political plot. None of this was true. Trump knew that he had assaulted Carroll. …

Where's The Beef?: A Guide To Judges On Preemption Of State Tort Litigation Involving Branded Drugs, Victor E. Schwartz, Christopher E. Appel

University of Cincinnati Law Review

No abstract provided.

Did Monsanto Pay A Plaintiff To Force Preemption Appeal? Plus: Judges Debate Vices And Virtues Of Virtual Mdl Hearings, Elizabeth Chamblee Burch, Amanda Bronstad

Popular Media

Welcome to Critical Mass, Law.com’s weekly briefing for class action and mass tort attorneys. Monsanto insists a “high-low settlement” with a Roundup plaintiff wasn’t designed to manufacture an appellate ruling. The chairwoman of the U.S. Judicial Panel on Multidistrict Litigation, which has continued to hold hearings amid the pandemic, says there is “something missing” in virtual oral arguments. What does President Joe Biden’s recognition of the Armenian genocide mean for lawyers representing descendants of the victims?

The Power Of The "Internet Of Things" To Mislead And Manipulate Consumers: A Regulatory Challenge, Kate Tokeley

Notre Dame Journal on Emerging Technologies

The “Internet of Things” revolution is on its way, and with it comes an unprecedented risk of unregulated misleading marketing and a dramatic increase in the power of personalized manipulative marketing. IoT is a term that refers to a growing network of internet-connected physical “smart” objects accumulating in our homes and cities. These include “smart” versions of traditional objects such as refrigerators, thermostats, watches, toys, light bulbs, cars, and Alexa-style digital assistants. The corporations who develop IoT are able to utilize a far greater depth of data than is possible from merely tracking our web browsing in regular online environments. …

An Education Theory Of Fault For Autonomous Systems, William D. Smart, Cindy M. Grimm, Woodrow Hartzog

Notre Dame Journal on Emerging Technologies

Automated systems like self-driving cars and “smart” thermostats are a challenge for fault-based legal regimes like negligence because they have the potential to behave in unpredictable ways. How can people who build and deploy complex automated systems be said to be at fault when they could not have reasonably anticipated the behavior (and thus risk) of their tools? Part of the problem is that the legal system has yet to settle on the language for identifying culpable behavior in the design and deployment for automated systems. In this article we offer an education theory of fault for autonomous systems—a new …

Valuing Black And Female Lives: A Proposal For Incorporating Agency Vsl Into Tort Damages, Catherine M. Sharkey

Notre Dame Law Review

Federal agencies adopt a uniform VSL (value of statistical life)—one that does not vary according to demographic characteristics—in conducting cost-benefit analyses in connection with regulatory policy decisions. In sharp juxtaposition, the use of race- and gender-based statistics on wages and work-life expectancy in calculating tort wrongful death damage awards is an entrenched practice among forensic economists who serve as expert witnesses in tort litigation. The conventional use of race- and gender-specific economic data concerning wages and work-life expectancy in calculating tort damages leads to unjustifiable disparities in awards for blacks and women. Young female and minority tort victims bear the …

Covid-19 Impacts: How A Global Pandemic Amid The Sunsets Of The Ptc And Itc Made The U.S. Wind And Solar Industries More Resilient, Kimberly E. Diamond

Fordham Environmental Law Review

A cataclysmic event is sometimes the necessary catalyst for companies within certain industries to re- examine, radically shift, and replace their standard practices with technologically-advanced alternatives. In the United States, the occurrence of the Coronavirus pandemic (“COVID-19”) during the sunsets of the Production Tax Credit (“PTC”) and the Investment Tax Credit (“ITC”) created a unique confluence of factors that produced a perfect storm tantamount to such a cataclysmic event for companies in the wind and solar industries, particularly developers. Over the years, the domestic utility-scale wind industry has come to rely heavily upon the PTC, while the domestic utility- scale …

Illegal Discharge: Exploring The History Of The Criminal Enforcement Of The U.S. Clean Water Act, Dr. Joshua Ozymy, Dr. Melisssa L. Jarrell

Fordham Environmental Law Review

The criminal prosecution of defendants that violate federal clean water laws has been ongoing for roughly four decades. Yet, we continue to have a poor understanding of how federal prosecutors use the U.S. Clean Water Act (“CWA”) to charge and prosecute criminals and the outcomes of those prosecutions. We use content analysis to analyze 2,588 federal criminal prosecution case summaries, 1983-2019, to gain a better historical understanding of how the CWA has been used as a prosecutorial tool, to bring out the major themes in the prosecutions, and quantify sentencing outcomes. Findings from the 828 CWA prosecutions undertaken during this …

Red Tide: A Blooming Concern For Florida Manatees, Shannon Price Esq.

Fordham Environmental Law Review

Although red tides are a common and natural occurrence around the coast of Florida, within the last few decades they have intensified and become much more deadly. Several identifiable human-caused factors exacerbate the size, concentration, and duration of the harmful algae bloom and disturb the environment’s natural balance. The Florida Gulf Coast provides all the algae’s necessary requirements for survival, the perfect storm to create a resilient super bloom that annihilates its host ecosystem.

This article explains the plight of Florida manatees who, like other marine animals and plants, are being injured or killed by this algae crisis. It also …