Law Commons^™

Beaulieu V. Beaulieu: An Obituary For Lex Loci And An Approach To Interest Analysis, David C. Shonka

Maine Law Review

Clifford Beaulieu, a guest in his father's automobile, was injured when the vehicle struck a telephone pole in Massachusetts. Both parties were residents of Maine. The trip had originated in Maine and was to terminate there. The son filed an action against his father in the Maine Superior Court, alleging negligent operation of the vehicle. On an agreed statement of facts, the case was reported to the Maine Supreme Judicial Court where the defendant argued for dismissal of the action on the grounds that the doctrine of lex loci delictus, the law of the place of the tort, was applicable …

Wallace V. Coca-Cola Bottling Plants, Inc.: Defective Products, Expanded Liability, And The Demise Of The Impact Rule, Robert A. Whidden

Maine Law Review

During the last decade there has been a rapid change in the theories of recovery in cases involving defective products. A majority of jurisdictions has adopted strict products liability as a tort. Others still employ implied warranty, a device, apparently tort, borrowed from contract law. A minority still holds that a plaintiff must prove his claim in negligence. In a recent decision, Wallace v. Coca-Cola Bottling Plants, Inc., the Maine Supreme Judicial Court addressed the question of the extent of a manufacturer's liability for a defective product and the nature of the proof necessary to show a compensable injury. This …

Beaulieu V. Beaulieu: An Obituary For Lex Loci And An Approach To Interest Analysis, David C. Shonka

Maine Law Review

Clifford Beaulieu, a guest in his father's automobile, was injured when the vehicle struck a telephone pole in Massachusetts. Both parties were residents of Maine. The trip had originated in Maine and was to terminate there. The son filed an action against his father in the Maine Superior Court, alleging negligent operation of the vehicle. On an agreed statement of facts, the case was reported to the Maine Supreme Judicial Court where the defendant argued for dismissal of the action on the grounds that the doctrine of lex loci delictus, the law of the place of the tort, was applicable …

Comparative Negligence And Comparative Contribution In Maine: The Need For Guidelines, Maine Law Review

Maine Law Review

In the recent case of Packard v. Whitten, Maine became the second state to adopt the doctrine of comparative contribution among joint tortfeasors. The decision stressed the point that comparative contribution was merely a logical outgrowth of Maine's Comparative Negligence Statute and that, in particular, the 1969 amendment to that law "would appear to have little purpose except to lay the basis for a comparative contribution." The court concluded that the implementation of this new doctrine would pose no major problems: "More than five years' experience in apportioning causal fault under our Comparative Negligence Law convinces us that this change …

The Role Of The Maine Law Court In Abrogating The Common Law Doctrines Of Governmental And Charitable Immunity From Tort Liability, Maine Law Review

Maine Law Review

During the last decade the Maine Law Court refused to overrule two common law doctrines which effectively insulated certain tortfeasors from liability for their negligent conduct. The purpose of this comment is to determine if the public policy issues embodied in the immunity rules and the reliance interests attributed to those rules by the Law Court justified the radical departure from the court's traditional role of deciding cases properly before it.

The Role Of The Maine Law Court In Abrogating The Common Law Doctrines Of Governmental And Charitable Immunity From Tort Liability, Maine Law Review

Maine Law Review

During the last decade the Maine Law Court refused to overrule two common law doctrines which effectively insulated certain tortfeasors from liability for their negligent conduct. The purpose of this comment is to determine if the public policy issues embodied in the immunity rules and the reliance interests attributed to those rules by the Law Court justified the radical departure from the court's traditional role of deciding cases properly before it.

No Lawyer, No Jail: A Critical Case Study Of Pragmatism And The Flaws Of “Purposeful” Decision Making In Argersinger V. Hamlin, Alisa Smith, Sarah K. Stice

Seattle University Law Review

By releasing conference notes and internal communications, Supreme Court Justices provide insight into the otherwise private decisionmaking process, shedding light on how case outcomes and legal reasoning are framed and negotiated. The watershed case of Argersinger v. Hamlin (1972) extended the constitutional right to counsel to some, but not all, misdemeanor defendants. The case was argued twice, and the Court relied on empirical and authoritative sources to answer complex and practical questions about requiring counsel. This case study employs critical discourse analysis to uncover what influenced the Justices’ decisions and how they framed, shaped, and constructed social realities to foreground …

The Race To Erase: Destruction Of Government Documents Undermines Freedom-Of-Information Laws, Frank D. Lomonte

Seattle University Law Review

In August 2019, reporters with Chattanooga’s daily newspaper, the Times Free Press, filed what seemed to be a routine request for access to emails and other public records held by their local county government. The seemingly unremarkable request set the newspaper’s staff on a months-long journey of unpleasant surprises. The first was a demand to pay the county $717 in advance before being allowed to inspect the documents. The second was that—during prolonged haggling over the fee assessment— the county attorney’s office simply destroyed almost all of the disputed records. Third, and most glaringly, the journalists discovered that Tennessee law …

When You’Re Arrested For A Felony In Seattle, You’Ll Meet Me., Austin Field

Seattle University Law Review

In this Essay, Austin Field, a practicing public defender, uses a first-person perspective to describe what it is like to meet a criminal defendant for the first time. He explains the process from start to finish, detailing everything from the way he introduces himself to how bail works.

"I’ll ask you for your name. Most of the time, you tell me. I check your name against my list. On any given day I’m supposed to interview between five and fifteen people. I have a lot of questions for you. We only have about ten minutes."

The Public Square In A Private-Property Obsessed Country: What New York City’S Pops Regulations Get Right And Why Other Cities Should (Mostly) Copy Them, Carson Mcgregor

Seattle University Law Review

When New York City (NYC) was first becoming the metropolitan monolith it is today, it had a problem: the city streets were chock full of skyscrapers, and sunlight, air, and usable open space were at a premium. In response, the City promulgated its first Privately Owned Public Spaces (POPS) regulations, which allowed developers to build skyward in exchange for providing public space on the street level. Unfortunately, in July of 2023, the New York Times (NYT) discovered that New Yorkers received only a fraction of what they were promised. Building owners received billions of dollars’ worth of added floor space, …

Modern Day Colonialism Through HawaiʻI’S Quiet Title And Partition Laws, Cheyann Fujii

Seattle University Law Review

This Note will attempt to highlight important aspects of Hawaiian history to provide readers with a clear picture on how Native Hawaiians are still impacted by colonialism, specifically when plaintiffs bring a quiet title or partition action against Native Hawaiian owners of kuleana lands. Before colonization, the concept of private land ownership did not exist in Hawai‘i, and Native Hawaiians adopted a feudal system by dividing land into geographical areas. Missionaries and businessmen brought Western ideas to Hawai‘i and influenced legislation such as the Great Māhele and the Kuleana Land Act of 1850, which solidified the concept of private property. …

Data Advantage And Merger Review: Can Entrenchment Theory Reform Antitrust Enforcement?, Shin-Ru Cheng

Seattle University Law Review

A merger involving giant digital companies is likely to dampen competition, as it allows those companies to combine and control data access, enabling them to entrench their dominant positions in relevant markets and extend those positions into related markets. While competition law in many jurisdictions aims to prohibit mergers that may substantially lessen competition or create a monopoly, arguably the review of digital mergers is failing because antitrust agencies lack an effective approach to identify data-generated anticompetitive harms. This Article demonstrates that entrenchment theory, recently reintroduced in the 2023 U.S. Merger Guidelines, would help reform the process of antitrust enforcement. …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Caution: Potholes In E-Scooter Data Collection, Dakota Rakestraw

Seattle University Law Review

Lime scooters keep ending up in major waterways in Washington state metro areas, a testament to the ubiquity of e-scooters in the metropolitan landscape. How they get there is unclear. Why they get there is even murkier. Perhaps the answer lies in the implications of modern geolocation data collection through e-scooters and gaps in current data collection regulation curbing individual liberties.

Since September 2020, electric scooters have run Seattle’s streets and have dramatically overtaken ridesharing bike trips. For example, from September 2020 to September 2021, there were about 1.4 million scooter and bike trips with September 2021 seeing 300,000 scooter …

Machinists Preemption In The New Administrative Law, Andrew J. Ziaja

Seattle University Law Review

This Article assesses Machinists preemption—a labor-specific form of implied field preemption—while freshly considering implications both for and of new developments in administrative law. The radical transformation of administrative law in the Supreme Court, particularly its newfound emphasis on clear-statement rules, provides opportunities to reconsider the Machinists rationale. Aligning with scholars who have called to question the doctrine’s “ossifying” influence on labor and employment policy, it argues that the modern-day version of Machinists preemption clashes with the Supreme Court’s newly constrained view of delegated power and its differing conceptions of the major questions doctrine.

On the other hand, Machinists preemption might …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Defining Deference: Impacts Of Abandoning Chevron On Emerging Technology Governance And Administrative Law, R. Aubrey Davis Iii

Seattle University Law Review

Emerging technologies, particularly Artificial Intelligence (AI), often lead to unforeseen legal outcomes. Notable abuses in areas such as facial recognition, employment bias, and housing discrimination are well known. However, legislative responses to these issues either have been largely reactive or there has been no legislative response at all. In lieu of legislation, agencies have sought to fill the gap. For example, the Federal Communications Commission (FCC) recently proposed a rule mandating voter notification for all AI-generated political phone calls citing the Telephone Consumer Protection Act (TCPA) of 1991 as authority. However, the TCPA was originally passed to curtail telemarketing, not …

Intellectual Property Or Modern Folklore? The Problem With Open Gaming Licenses In Tabletop Gaming, Rosie Midget

Seattle University Law Review

This Note addresses how courts and legislatures should address “Open Gaming Licenses” commonly attached to tabletop roleplaying games (TTRPGs), which game publishers use to promote a false image of accessibility—misleading consumers and building goodwill from the misunderstanding. Part I discusses what TTRPGs are, including the defining features of the hobby and culture surrounding it, as well as the unique interplay between publishers and players. Part II explores the question of which elements in a TTRPG system may be subject to copyright protection. Part III examines these elements in practice using Wizards of the Coast’s Dungeons and Dragons TTRPG as a …

A Primer On The Proximate Cause Requirement Of Plcaa’S Predicate Firearm Exception: Holding Firearm Manufacturers Liable For Third-Party Criminal Misuse Of Their Products, Hillel Y. Levin, Timothy D. Lytton

Buffalo Law Review

No abstract provided.

Torts Mismatches, Edward K. Cheng

Vanderbilt Law School Faculty Publications

In torts, the damages required for full compensation of the victim and optimal deterrence of the injurer are normally the same. This correspondence is perfectly natural: If the injurer fully compensates the victim, then the injurer will completely internalize his externalities. Yet sometimes full compensation and optimal deterrence do not align. A well-known example is punitive damages, in which victims are purposely overcompensated to optimally deter injurers. What the literature has failed to acknowledge is that these torts mismatcheswhen full compensation of victims and optimal deterrence of injurers are incompatibleoccur elsewhere and explain controversial and unresolved doctrinal areas of torts. …

Filarsky’S Dilemma: Qualified Immunity For Private Actors And Its Potentially Negative Impact On Policing, Timothy Joseph Mondloch

University of Miami Race & Social Justice Law Review

No abstract provided.

The Return Of Private Law, Anthony J. Sebok

Articles

Recent events offer a grim picture of the future of public law. In particular, President Trump’s assault on the administrative state seems destined to hamper the ability of agencies to protect the public in familiar areas such as drug safety, auto safety, environmental protection, and consumer protection.

Implicit Bias Within The Primary Assumption Of Risk Doctrine, Tracy Catapano-Fox

Brooklyn Law Review

This Article addresses the efficacy of the primary assumption of risk doctrine, and the improper extension of the doctrine to vitiate a plaintiff’s ability to obtain recourse in personal injury cases. When the New York legislature enacted the comparative negligence standard in 1975, it essentially revoked the applicability of the primary assumption of risk doctrine as a defense in tort litigation. However, the courts continued to apply the primary assumption of risk doctrine in tort cases involving sports or physical activity, analyzing it as an element of a defendant’s duty and serving as a complete bar to recovery for plaintiffs …

Aerial Highways: The Fifth Amendment Implications Of Commercial Drone Delivery Services, Marc C. Mcallister, Karen A. Sauls

Brooklyn Law Review

Commercial drone delivery systems that deliver packages of purchased products directly to the homes of consumers are being developed and tested by many companies in America, including Walmart and Amazon. Soon enough, our skies will be filled with low-flying drones. This Article joins the growing cohort of legal scholars discussing drones, but focuses on an issue not addressed to this point - how commercial drone delivery systems can undermine and diminish the property rights of private landowners. In the past, most legal scholars have addressed the interplay between drones and private property by examining potential tort liability for drone operators …

Climate Exceptionalism In Court, Zachary D. Clopton, David A. Dana

Northwestern University Law Review

Across a range of cases, fossil fuel companies, government actors, and some judges have conceded that climate change is an exceptional phenomenon, only to argue that its exceptional nature is a reason to keep climate change out of court. These parties and judges thus seek to avoid the adjudication of climate cases on the merits, even when the neutral application of existing law would provide for jurisdiction in these cases. We term this phenomenon “climate jurisdiction exceptionalism.”

This Article provides a comprehensive account of climate jurisdiction exceptionalism, focusing on two main threads: Article III standing and state court jurisdiction. First, …

The Renaissance Of Private Law, Yotam Kaplan, Adi Libson, Gideon Parchomovsky

Northwestern University Law Review

Crisis is the new normal. Between global warming, the opioid pandemic, bursts of gun violence, and political instability fueled by fake news, it is hard to remember a time when we were not facing a major catastrophe. Still more troubling, there is a growing sense that our political and regulatory institutions are faltering in their ability to offer effective responses to the incoming crises. The rapid pace at which new problems emerge—together with growing political polarization—stymies regulatory and legislative action, resulting in an inability to address contemporary challenges.

Against this gloomy background, we posit an unlikely hero: private law. Recent …

Challenging Race-Based Health Care Discrimination: A New Private Right Of Action, Aaron Pinkett

Northwestern University Law Review

The Hippocratic Oath calls on doctors to “do no harm.” Yet we know from extensive public health research that clinicians repeatedly cause harm to Black patients by dismissing their medical concerns, misdiagnosing them, and undertreating their pain. These practices of differential treatment for Black patients have led to steadily increasing racial disparities in health care outcomes throughout the United States. Title VI of the Civil Rights Act of 1964 prohibits this type of disparate impact, but modern Supreme Court jurisprudence forecloses opportunities for affected parties to seek legal relief—despite the clearly established legislative intent of Title VI. However, another legal …

Blazing A Trail To Dispute Resolution: The Advantages Of Mediating Insurance And Mass Tort Claims Following Wildfires In California, Kate Hanes

Pepperdine Dispute Resolution Law Journal

Year after year, wildfires in California decimate property, the environment, and local communities, precipitating costly and protracted litigation. This Comment explores the advantages of mediating, rather than litigating, insurance and mass tort claims in the aftermath of these devastating natural disasters. In particular, this Comment contends that mediation benefits all parties—wildfire victims, their insurers, and alleged tortfeasors—by quickly and inexpensively resolving claims, preserving the common pool of funds to prevent insurer insolvency, and maintaining flexibility, predictability, and confidentiality. Drawing on examples of other successful disaster mediations, such as the Agent Orange case and those following Hurricanes Andrew and Katrina, this …

Cyr V. B. Offen & Co.: Liability Of Business Transferees For Product Injuries, Maine Law Review

Maine Law Review

The development of the law of products liability since MacPherson v. Buick Motor Co. has extended liability without fault to wholesalers, retailers, lessors, bailors, and trademark licensors. But the liability of a transferee of business assets for claims arising from the transferor's products after the change in business ownership has never been clearly established. Although commercial creditors generally have been unable to reach the transferee's assets, recent cases have pointed to additional factors that may distinguish products liability plaintiffs from commercial creditors. The liability question is especially important where the transferor, a seller of consumer goods, has dissolved prior to …

The Repair Rule: Maine Rule Of Evidence 407(A) And The Admissibility Of Subsequent Remedial Measures In Proving Negligence, Maine Law Review

Maine Law Review

Evidence of subsequent repairs is generally excluded when submitted for admission as circumstantial evidence of negligence. Although this Comment will examine various theories under which such evidence has been held inadmissible, these theories are all based on one of two assumptions. Evidence of subsequent repairs has been excluded either because it is regarded as irrelevant to the issue of negligence, or although relevant, as incompetent because its admission is believed to counteract the strong public policy to encourage repairs. Most modern rules of evidence now base the exclusion on the public policy rationale. Thus, the effect of the subsequent repair …