Law Commons^™

Tinjauan Yuridis Terhadap Pembatalan Sepihak Oleh Pembeli Dalam Perjanjian Jual Beli Melalui Marketplace Dengan Sistem Pembayaran Cash On Delivery, Zahra Adinda Atyarisma, Lauditta Humaira

Lex Patrimonium

The rapid development of technology often creates new problems. One of them is an event where the buyer refuses to pay for an order package made through a marketplace with a cash on delivery payment system where this event can make the seller suffer a loss. The research method used is normative juridical research by analyzing reading materials and laws and regulations related to the nature of analytical descriptive research. Data collection uses secondary data consisting of primary legal materials, namely legislation and secondary legal materials, namely books, journals, and articles related to primary legal materials. The results of the …

Tinjauan Yuridis Terhadap Praktik Konversi Bunga Menjadi Saham Pada Perusahaan X Di Indonesia, Nadya Amanda Putri, Dr. Akhmad Budi Cahyono

Lex Patrimonium

Since it was announced that Indonesia had experienced the Covid-19 pandemic, the structure of the national economy immediately dropped drastically. This condition occurs because business actors are unable to carry out their business activities under ideal conditions which reduce the income of business actors on a national scale. With the unstable income of each business actor, it is difficult for each of them to pay their debt obligations. These difficulites make companies choose other alternatives to pay their obligations by way of entering into a debt restructuring agreement. In a study conducted on PT X and PT Z, both of …

Why Indiana Harbor Is The Worst Torts Decision In American History

Connecticut Law Review

Judge Richard A. Posner’s opinion for the Seventh Circuit in Indiana Harbor Belt Railroad Co. v. American Cyanamid Co., concerning a spill of the hazardous chemical acrylonitrile at a railyard near Chicago, is considered the definitive statement on the abnormally dangerous activity doctrine. That doctrine (also known as the ultrahazardous activity doctrine) holds that one who engages in an abnormally dangerous activity is strictly liable for harm caused to others, regardless of negligence. However, Judge Posner’s opinion suggests that strict liability should rarely displace the negligence standard, even for commercial activities that externalize high degrees of risk. That approach leads …

Why Indiana Harbor Is The Worst Torts Decision In American History, Carl T. Bogus

Law Faculty Scholarship

No abstract provided.

Emotional Distress Claims, Dignitary Torts, And The Medical-Legal Fiction Of Reasonable Sensitivity, Alessandra Suuberg

Journal of Law and Health

Can individuals with a highly sensitive temperament recover in tort for intentional infliction of emotional distress (IIED)? In 2019, an article in the University of Memphis Law Review raised this question, referring to the "Highly Sensitive Person" (HSP) construct in psychology and asking whether the IIED tort’s 'reasonable person' standard discriminates against highly sensitive plaintiffs. Following up on that discussion, the present article considers how the law of IIED has historically treated plaintiffs with diagnosed psychiatric vulnerabilities that are either known or unknown to the defendant. The article also extends this discussion to the law's treatment of temperaments, such as …

Tort Reform & The Takings Clause, Bailey D. Barnes

Buffalo Law Review

The United States tort reform movement has capped noneconomic damage awards in many jurisdictions, thereby preventing the most injured plaintiffs from being fully compensated for their suffering. While litigants have asserted numerous state constitutional challenges to these tort recovery limits, with varying degrees of success, aggrieved plaintiffs have underutilized the Fifth Amendment’s Takings Clause. This Article advocates that judicial reduction of a jury’s noneconomic damage calculation after the court has informed the successful plaintiff of the full verdict is a regulatory taking in violation of the federal Takings Clause, as incorporated against the states through the Fourteenth Amendment.

A Takings …

Law's Credibility Problem, Julia Simon-Kerr

Washington Law Review

Credibility determinations often seal people’s fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category.

Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” …

Tort Law, Amirthalingam Kumaralingam, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

No abstract provided.

Wrongs To Us, Steven Schaus

Michigan Law Review

A huge number of tort suits in the United States are captioned Plaintiff & Spouse v. Defendant. Why? The answer is at once completely obvious and deeply puzzling. The plaintiff’s spouse is part of the case because, in almost every U.S. state, she has a claim against the defendant too—not for battery or negligence, as her spouse might, but for the loss of her spouse’s “consortium.” And yet, it’s not at all clear why a spouse should have a tort claim of this kind. A plaintiff who sues in tort, Judge Cardozo once explained, must always identify “ ‘a …

Our Biggest Fans: Nuisance Immunity For Grid-Scale Wind Energy Projects In Maine, Andrew D. Hersom

Maine Law Review

Global climate change and its attendant impacts threaten to change life on Earth as we know it. The sea level rise that comes with rising temperatures is an issue of particular importance to coastal states like Maine. Thankfully, continued investment in renewable energy technology is beginning to make certain renewable energy sources competitive with their nonrenewable counterparts. This Comment highlights wind energy as a particularly effective option for meeting Maine’s energy needs while significantly reducing the harmful greenhouse gas emissions that contribute to climate change. Despite its many benefits, wind energy technology still has its detractors. Wind energy projects (especially …

Brief Of Amicus Curiae Gregory Klass In Support Of Plaintiff-Appellee, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This scholar’s amicus brief in the Fifth Circuit argues that tort remedies play an important role in the contract ecosystem, including promoting efficiency in exchanges; that a party who has been defrauded in the formation of a contract is not bound by contractual limitations on tort liability; and that worries about the tortification of contract law are overblown and out of date.

The Bankruptcy Of Purdue Pharma In The Wake Of Big Tobacco, Jacob Hedgpeth

University of Colorado Law Review Forum

Two distinct public health crises shook the United States from 1954 to 2023: nicotine addiction from tobacco products, and opioid addiction starting with Purdue Pharmaceutical’s OxyContin. These crises resulted in millions of deaths and immense costs to the country as a whole. The nicotine crisis ended in a national settlement against four major tobacco manufacturers, which yielded hundreds of millions of dollars for those harmed by these products. The owners of Purdue, however, opted for bankruptcy instead of settlement, keeping the majority of the money made from OxyContin for Purdue’s owners, the Sackler family.

These four tobacco giants and Purdue …

Adapting Private Law For Climate Change Adaptation, Jim Rossi, J. B. Ruhl

Vanderbilt Law Review

The private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change that cannot be avoided through mitigation (known in climate change policy dialogue as “adaptation”). While adaptation is commonly presented as a problem needing legislative solutions, this Article presents a novel and overdue case for private law to take climate adaptation seriously.

To date, the role of private law is a significant blind spot in scholarly discussions of climate adaptation. Litigation invoking common-law doctrines in climate adaption disputes …

The Counterintuitive Court: How The Supreme Court’S Punitive Damages Jurisprudence Endangers Marginalized Communities, Anne Rodgers

Washington and Lee Journal of Civil Rights and Social Justice

Punitive damages are awarded in civil suits to deter intentionally reckless and grossly negligent behavior. The goal of punitive damages is to punish the tortfeasor and protect the public from future misconduct. However, the Supreme Court’s recent jurisprudence on punitive damages reflects a shift towards protecting businesses from what the Court perceives as an arbitrary taking under the Due Process Clause. This Note argues that these decisions are dangerous, especially for marginalized communities. This Note begins by defining punitive damages and common criticisms of punitive damages awards. This Note then discusses the role of the Supreme Court in reviewing punitive …

Differentiating Strict Products Liability’S Cost-Benefit Analysis From Negligence, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

Dangerous products may give rise to colossal liability for commercial actors. Indeed, in 2021, the U.S. Supreme Court denied certiorari in Johnson & Johnson v. Ingham, permitting a more than two billion dollar products liability damages award to stand. In his dissenting opinion in another recent products liability case, Air and Liquid Systems Corp. v. DeVries, Justice Gorsuch declared that “[t]ort law is supposed to be about aligning liability with responsibility.” However, in the products liability context, there have been ongoing debates concerning how best to set legal rules and standards on tort liability. Are general principles of …

Permasalahan Konsepsi Harta Bersama Dalam Kepemilikan Saham Perseroan Terbatas (Studi Kasus Putusan Nomor 80/Pdt.G/2020/Pn.Jkt.Utr), Mutiara Husna Wahono, Lauditta Humaira

Lex Patrimonium

A limited liability company as a legal entity adheres to the principle of a separate legal entity which creates the concept of limited liability of its shareholders. The existence of these two concepts automatically separates the assets of the limited liability company from the personal assets of its shareholders. Even though the shareholders are part owners of the limited liability company, the shareholders cannot claim the assets of the limited liability company. Shares acquired while in marital status can become joint property. However, the Indonesian Marriage Law does not provide special arrangements or mechanisms regarding the distribution of joint assets, …

Pain Management, Disorders Of Consciousness, And Tort Law: An Emergency Tort To Fix A Longstanding Injustice, Joseph J. Fins, Zachary E. Shapiro

Indiana Law Journal

We address the systemic undertreatment of pain for individuals diagnosed with disorders of consciousness (DoC). Patients with DoC are often unable to communicate due to damage to their brains, and because DoC patients appear to be insensate, practitioners often believe that these patients are unable to feel pain and may not offer them analgesia, even before painful medical procedures. However, science shows that many DoC patients are able to feel pain, even if they are unable to communicate their distress. This Article moves from recognition of this problem to proposing solutions, in particular exploring what the legal system can do …

Adapting Private Law For Climate Change Adaptation, Jim Rossi, J. B. Ruhl

Vanderbilt Law School Faculty Publications

The private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change that cannot be avoided through mitigation (known in climate change policy dialogue as “adaptation”). While adaptation is commonly presented as a problem needing legislative solutions, this Article presents a novel and overdue case for private law to take climate adaptation seriously.

To date, the role of private law is a significant blind spot in scholarly discussions of climate adaptation. Litigation invoking common-law doctrines in climate adaption disputes …

Due Process Discontents In Mass-Tort Bankruptcy, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

No abstract provided.

A Matter Of Motive: Malice In The Law Of Torts In The Age Of Connectivity, Greg Bowley

Dalhousie Law Journal

To meet the challenges posed by the novel modes of interpersonal relationships of contemporary society, Canadian tort law must develop a general principle of liability for the intentional infliction of harm. This principle would recognize the normatively-significant common thread of the wrongdoer’s intention to cause harm to another person in phenomena as varied as doxing, swatting, revenge porn, cyberstalking, impersonation, trolling, and harassment. The recent development of discrete, context-specific torts in response to problematic social media conduct is an inherently limited approach to novel interpersonal conduct. However, it also offers an opportunity for the enunciation of a general principle of …

Climate Discrimination, Duane Rudolph

Catholic University Law Review

This Article focuses on the coming legal plight of workers in the United States, who will likely face discrimination as they search for work outside their home states. The Article takes for granted that climate change will have forced those workers across state and international boundaries, a reality dramatically witnessed in the United States during the Dust Bowl of the 1930s. During that environmental emergency (and the devastation it wrought), workers were forced across boundaries only to be violently discriminated against upon arrival in their new domiciles. Such discrimination is likely to recur, and it will threaten the livelihoods of …

Damage To Reputation: A Comparative Analysis Of Pecuniary Compensation For Non-Pecuniary Harm, Frank S. Giaoui

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Platform Accountability: Gonzalez And Reform, Eric Schnapper

Presentations

Section 230(c)(1) was adopted for the purpose of distinguishing between conduct of third parties and conduct of internet companies themselves. Its familiar language provides that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The last four words are central to the limitation on the defense created by the statute; it is only regarding information created by “another” that the defense may be available. Section 230(e)(3) makes clear that even a partial role played by an internet company in the creation of harmful …

Misrepresentation And Contract, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Contract theorists naturally focus on the duty to perform. This chapter argues they should also pay attention to duties of candor in the contracting context. The most obvious example of such duties can be found in the misrepresentation defenses, which aim to ensure that contractual undertakings are sufficiently voluntary and to allocate the costs of defective consent. But other laws of deception, such as the torts of negligent misrepresentation and deceit, are also integral to the law of contracts. Separate liability in tort for both pre- and post-formation misrepresentations helps parties who mistrust one another determine whether an exchange is …

I Am Not My Brother’S Keeper: A Brief History Of Georgia’S Apportionment Statute And The Future Of Tort Reform, Jordan S. Lipp

Mercer Law Review

Imagine approaching a stop sign in Hamilton, Georgia and illegally rolling through it. After you make your rolling stop and pull out into the road, a driver T-bones your car, and your gas tank erupts into flames. Can you recover anything for your injuries, and if so, from whom?

The answer could turn on the jurisdiction in which you live and, in Georgia, the number of people you name as parties to the lawsuit. Can you sue the car manufacturer, even though the driver probably sparked the fire? Can you recover damages, even though you could have avoided the accident …

Georgians “Waive” Goodbye To The Prospect Of Full Compensation In Car Wrecks Caused By Municipalities: Automatic Governmental Immunity Waiver’S Interplay With Liability Insurance, W. Jackson Latty

Mercer Law Review

Arguably two of the most axiomatic interests the Georgia legislature must consider when enacting laws are the interests of local governments to carry out public works and individual citizens’ abilities to seek full and adequate relief when they have been injured by the wrong of another. For example, although police officers generally enjoy immunity for acts performed in their official capacity, there is also a compelling government interest in allowing individuals to recover for a police officer’s negligent or reckless conduct, recoveries which often repay local hospitals or government insurance systems for treatment otherwise covered by taxpayer dollars. These two …

Unenforceable Waivers, Edward K. Cheng, Ehud Guttel, Yuval Procaccia

Vanderbilt Law Review

Textbook tort law establishes that waivers of liability—-especially those involving physical harm-—are often unenforceable. This Essay demonstrates through an extensive survey of the case law that despite being unenforceable, such waivers remain in widespread use. Indeed, defendants frequently use waivers even when a court has previously declared their specific waivers to be void. So why do such waivers persist? Often the simple answer is to hoodwink would-be plaintiffs. Waivers serve as costless deterrents to tort claims: Either they dupe naïve victims into believing that their claims are barred, or if not, the defendant is no worse off than before. Such …

Buckle Up! The Supreme Court Of Georgia Provides Clarity To The State’S Seatbelt Statute In Domingue V. Ford Motor Company, Olivia Durkin

Mercer Law Review

Imagine a loved one being in a severe accident where the seatbelt did not work in the way it was intended. As a result, you decide to hold the car manufacturer accountable, alleging negligence in the seatbelt design. During the discovery process, the car manufacturer attempts to shield themselves from liability by either producing evidence or alluding to the fact your loved one was not wearing their seatbelt at the time of the accident. Such evidence would be harmful to your case; what can you do?

You are in luck. Georgia has a statute with a provision that the failure …

Discretionary Disfunction And Shivers V. United States: Consequences Of Assuming The Intent Of Congress, Emily B. Garza

Texas A&M Law Review

The discretionary function exception is a powerful departure from the Federal Tort Claims Act’s general waiver of sovereign immunity. This exception applies where government employees commit a tort while acting within the discretion of their position. While there has been a lengthy and varying jurisprudential history surrounding the application of the discretionary function exception, neither the Supreme Court nor Congress has addressed whether violations of constitutional rights fall within the scope of a discretionary act.

This lack of clarity proved harmful for individuals like Mackie Shivers in Shivers v. United States because the discretionary function exception swallowed his claim for …

What A Waste! An Evaluation Of Federal And State Medical And Biohazard Waste Regulations During The Covid-19 Pandemic And Their Impact On Environmental Justice, Samantha Newman

Villanova Environmental Law Journal

No abstract provided.