Law Commons^™

The Jewel In The Crown: Can India’S Strict Liability Doctrine Deepen Our Understanding Of Tort Law Theory?, Deepa Badrinarayana

Deepa Badrinarayana

Dun & Bradstreet, Hepps, And Liberty Lobby: New Analytic Primer On The Future Course Of Defamation, Rodney A. Smolla

Rod Smolla

Not available.

The Fault Of Trespass, Avihay Dorfman, Assaf Jacob

Avihay Dorfman

The conventional wisdom has it that a property owner assumes virtually no responsibility for guiding others in fulfilling their duties not to trespass on the former's property. In other words, the entire risk of making an unauthorized use of the property in question rests upon the duty-holders. This view is best captured by the Keep-Off picture of property, according to which the content of the duty in question is that of excluding oneself from a thing that is not one's own. In this article, we argue that this view is mistaken. We advance conceptual, normative, and doctrinal arguments to show …

Punishment Without Culpability, John F. Stinneford

John F. Stinneford

For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor. The …

Public Welfare Offenses, Darryl K. Brown

Darryl K. Brown

This chapter provides an overview, historical account and critical analysis of Anglo-American public welfare offenses, meaning strict liability crimes generally employed for regulatory purposes. As an explanation for the greater prevalence of these strict liability regulatory crimes in England and the U.S. compared to other jurisdictions, the chapter points to, among other factors, the evolving scope of social duties in modernity and traditional Anglo-American limits on central state administrative capacity.

A Paralyzed Environmental Law: Critical Comments On Compensation For Environmental Damage In Indonesia, Andri Gunawan Wibisana

Andri Gunawan Wibisana

This article criticizes compensation mechanisms for the victims of environmental disaster in Indonesia. In particular, it attempts to answer the questions of how compensation mechanism is addressed in Indonesian environmental law, how the victims of environmental disasters are compensated, and what lessons can be learned from the application of law in practice. This article begins with discussions about the current Indonesian compensation system for damage resulting from pollution, focusing on the provisions in environmental management acts. In order to explain how these provisions have been applied in practice, this article discusses two major environmental disasters in Indonesia, i.e. the Mandalawangi …

Torts As (Only) Wrongs? An Empirical Perspective, Lawrence M. Solan, Joseph Sanders, Matthew Kugler, John M. Darley

Lawrence M. Solan

In this article, we report on several studies that explore peoples’ preferences for strict liability or negligence in assigning responsibility for accidents. Depending on the situation, a substantial percentage of individuals stand prepared to assign liability to actors who are not negligent. We relate these findings to current debate over whether the essence of tort law is compensation to victims for wrongs committed by defendants.

We begin with a brief discussion of the relative roles that strict liability and negligence play in the tort system, both historically and in current doctrine. In essence, both the scholarly literature and the law …

Paved With Good Intentions: The Fate Of Strict Liability Under The Migratory Bird Treaty Act, Kalyani Robbins

Kalyani Robbins

The Migratory Bird Treaty Act (MBTA) contains a very broad ban on harming migratory birds, as well as a strict liability standard for misdemeanor violations. Without further limitation, the MBTA would theoretically apply to countless ordinary life activities, such as driving a car or having windows on one’s home. Naturally, there are due process concerns with such a scenario, so Congress expressly left it to the Department of the Interior to draft more detailed implementing regulations. Unfortunately, the existing regulations fail to adequately address the potential overbreadth of the MBTA’s misdemeanor application, forcing the courts to do so on an …

Eliminating Proximate Cause As An Element Of The Prima Facie Case From Strict Products Liability, Peter Zablotsky

Peter Zablotsky

No abstract provided.

The Appropriate Role Of Plaintiff Misuse In Products Liability Causes Of Action, Peter Zablotsky

Peter Zablotsky

No abstract provided.

An Analysis Of Thirty-Five Years Of Rape Reform: A Frustrating Search For Fundamental Fairness, Richard Klein

Richard Daniel Klein

This article will analyze the most significant changes in the manner in which individuals who are charged with the crime of rape are prosecuted for that offense. In the last thirty-five years, there has been a steady erosion of the due process rights of those accused of rape.

Copyright As Tort, Assaf Jacob, Avihay Dorfman

Avihay Dorfman

In these pages we seek to integrate two claims. First, we argue that, taken to their logical conclusions, the considerations that support a strict form of protection for tangible property rights do not call for a similar form of protection when applied to the case of copyright. More dramatically, these considerations demand, on pain of glaring inconsistency, a substantially weaker protection for copyright. In pursuing this claim, we show that the form of protecting property rights (including rights in tangibles) is, to an important extent, a feature of certain normal, though contingent, facts about the human world. Second, the normative …

Choosing A Better Path: The Misguided Appeal Of Increased Criminal Liability After Deepwater Horizon, Joshua P. Fershee

Joshua P Fershee

Despite the potential appeal of dramatically increased liability and sentences in the wake of environmental disasters like the Deepwater Horizon oil blowout in the Gulf of Mexico, this Article argues that more aggressive criminal provisions and enforcement related to environmental harms, up to and including strict criminal liability, are not likely to protect the environment better or lead to safer work environments. This Article first considers the history and legality of, and the rationale behind, policies designed to make it easier to convict allegedly responsible parties and also discusses the pursuit of increased liability in relation to disaster-related and tragedy-related …

"Terror Among The Gum Trees" - Is Our Criminal Legal Framework Adequate To Curb The Peril Of Bushfire Arson In Australia, John L. Anderson

John L Anderson

No abstract provided.

Tort Arbitrage, Robert J. Rhee

Robert Rhee

The economic models of bargaining and tort law have not been integrated into a coherent theory that reflects the operational realities of the dispute resolution process and the negligence standard. Applying a theory of bargaining based on asset pricing principles of financial economics, this Article argues that there is systematic devaluation of tort claims in the civil litigation system. This results because in essence the parties value different tort transactions, even when they are tied together in a common dispute and view the facts and laws similarly. For the party that can mitigate the risk exposure, the discount to value …

Submission: Draft Guidelines On The Infringement Notices And Forfeiture Of Infringing Copies And Devices Scheme, Copyright Amendment Regulations 2006, Kimberlee G. Weatherall

Kimberlee G Weatherall

I'M A Lawyer Too--Memoirs Of The Ambitious Legal Writing Professor, Prentice L. White

Prentice L White

I’M A LAWYER TOO—MEMOIRS OF THE AMBITIOUS LEGAL WRITING PROFESSOR ABSTRACT Legal Writing professors are faced with so many challenges and hurdles in the world of academia. Our salaries are lower, our offices are smaller, and our work schedules with students are much more tedious than that of tenure and tenure-track faculty members. However, there is another hurdle that is not as obvious as the other challenges, but it is the most serious hurdle we have ever faced—proving that we too are lawyers and not simply writing teachers. There are so many stereotypes in our profession that we sometimes have …

Green Medicine: Using Lessons From Tort Law And Environmental Law To Hold Pharmaceutical Manufacturers And Authorized Distributors Liable For Injuries Caused By Counterfeit Drugs, Stephanie Feldman Aleong

Stephanie Feldman Aleong

Counterfeit and adulterated prescription drugs have caused serious harm to consumers when these tainted products have easily permeated the legitimate marketplace over the last decades. Criminals and other actors introduce fake, adulterated, expired and foreign drugs into the drug distribution network which puts unsafe medicine into the hands of innocent consumers.

Due to the FDA’s identification of the dramatic rise in counterfeit drug investigations, in June of 2006, the FDA finally lifted the nearly twenty-year-old stay on requiring pedigree documentation, an actual history of the distribution transactions of a medicine before reaching a dispensing pharmacy, only to find that a …

Vincent As A Negligence Case, Peter M. Gerhart

Peter M. Gerhart

In a recent symposium, Professor Sugarman asks whether any account of Vincent v. Lake Erie Steamship Company provides a justification for the outcome that avoids doctrinal, conceptual question-begging or unexplained inconsistencies within tort doctrine. This article takes that challenge seriously by providing a justification for the decision that specifies the source of the defendant’s obligation to compensate the plaintiff. Contrary to conventional wisdom, the outcome in Vincent is based on fault, not strict liability. Although the decision to stay at the dock was socially appropriate, the shipowner acted unreasonably by making that decision without simultaneously agreeing (implicitly) to compensate the …

La Reedificación Conceptual De La Responsabilidad Extracontractual Objetiva, Gastón Fernández Cruz, Leysser L. León

Leysser L. León

El artículo 1970 del Código Civil peruano incluye una cláusula normativa general de responsabilidad civil por actividades riesgosas y peligrosas. En las páginas de este ensayo se enmarca históricamente y desde una perspectiva comparatística dicha novedad legislativa, que convive con el régimen tradicional de la responsabilidad civil basada en la culpa.

Causal Apportionment In The Law Of Torts, Mario Rizzo

Mario Rizzo

This article presents a theory and a technology of damage apportionment (in cases of joint, concurrent or successive torts) based on relative causal contributions. While the theory is developed along the lines of strict liability, it is also applicable, mutatis mutandis, to a negligence framework.