Law Commons^™

Liability For Unintentional Nuisances: How The Restatement Of Torts Almost Negligently Killed The Right To Exclude In Property Law, Jill M. Fraley

Jill M. Fraley

This article argues that nuisance was historically unique in tort law because of its special role in protecting property rights.' In other words, nuisance historically had distinct features addressed to the special situation of land. Most importantly, nuisance protected the right to exclude in a way that no other cause of action did. The Second Restatement's change then diminished our rights to private property to the extent that it has been adopted. The majority of courts retain the more logical and defensible position--that property rights are special and nuisance encompasses something more than the idea of negligence.

Hospital Peer Review Standards And Due Process: Moving From Tort Doctrine Toward Contract Principles Based On Clinical Practice Guidelines, Katharine A. Van Tassel

Katharine Van Tassel

This Article proposes a solution to the problems associated with the current use of vague standards in peer review. This Article will examine the proposal that medical staffs switch from ad hoc judicial decision-making to rule-making. This switch will allow medical staffs to abandon the troublesome practice of applying vague 'standard of care' measures ex post facto. In its stead, express contractual terminology could be adopted, such as 'expectations of performance,' which incorporates specifically chosen and uniquely tailored clinical practice guidelines ('CPGs') directly into the medical staff by-laws. Describing the expectations of physician performance in express contractual terms enables physicians …

The Introduction Of Biotech Foods To The Tort System: Creating A New Duty To Identify, Katharine Van Tassel

Katharine Van Tassel

This Article examines the question of whether an unsuspecting consumer who dies from an allergic or toxic reaction to an undisclosed biotech ingredient in food can recover damages through the tort system. The surprising answer is that recovery is very unlikely. This Article outlines why this is the case, then evaluates the merits of several potential solutions to this problem including the possible creation of a common law 'duty to identify' biotech ingredients in food.

This Article is arranged as follows. First, a brief primer on the nature of biotech foods is provided. For the reader unfamiliar with the regulatory …

“Lucy In The Sky With Diamonds”: Airline Liability For Checked-In Jewelry, Eloisa Rodriguez-Dod

Eloisa C Rodríguez-Dod

It is expected that when you arrive at an airport you most likely will have to check in a bag or two. What is not expected, however, is that someone would rummage through your baggage and take your belongings. Unfortunately, this happens frequently. A passenger packs her jewelry in her luggage, checks that luggage in, boards her flight, and never sees that jewelry again. Once she discovers the missing jewelry, her options for recovering the loss are quite limited. This article examines the history and current state of the law regarding airline liability for passengers’ lost belongings on domestic as …

The Nlra Defamation Defense: Doomed Dinosaur Or Diamond In The Rough, Kati Griffith

Kati Griffith

[Excerpt] This Article explores an underappreciated and promising NLRA protection of collective activity. It elaborates the NLRA’s role as a defense in state defamation cases. Specifically, this Article explains how the “NLRA defamation defense” frees defendants from some forms of defamation liability when the allegedly defamatory statements are made during labor disputes. The defense has no effect on defamation liability in what this Article refers to as “more egregious” state defamation law cases. However, the defense forecloses liability in “less egregious” state defamation law cases. It makes it harder for defamation plaintiffs to win their cases because it requires them …

The Model Business Corporation Act And Corporate Governance: An Enabling Statute Moves Toward Normative Standards, John Olson, Aaron Briggs

John Olson

No abstract provided.

Exculpatory Liabilities And Partnership Nonrecourse Allocations, Karen C. Burke

Karen Burke

The rise of limited liability companies (LLCs) classified as partnerships for federal income tax purposes challenges traditional assumptions concerning the treatment of recourse and nonrecourse liabilities under Subchapter K. The complex rules of sections 704(b) and 752 give little attention to liabilities that are recourse to the entity under section 1001 but for which no member bears the economic risk of loss under section 752. In comparison to traditional general or limited partnerships, however, LLCs are much more likely to incur such "exculpatory" liabilities because of the limited liability shield under state law. Although exculpatory liabilities are functionally quite similar …

Exculpatory Liabilities And Partnership Nonrecourse Allocations, Karen C. Burke

Karen Burke

The rise of limited liability companies (LLCs) classified as partnerships for federal income tax purposes challenges traditional assumptions concerning the treatment of recourse and nonrecourse liabilities under Subchapter K. The complex rules of sections 704(b) and 752 give little attention to liabilities that are recourse to the entity under section 1001 but for which no member bears the economic risk of loss under section 752. In comparison to traditional general or limited partnerships, however, LLCs are much more likely to incur such "exculpatory" liabilities because of the limited liability shield under state law. Although exculpatory liabilities are functionally quite similar …

Property Rules And Liability Rules: The Cathedral In Another Light, James Krier, Stewart Schwab

Stewart J Schwab

Ronald Coase's essay on "The Problem of Social Cost" introduced the world to transaction costs, and the introduction laid the foundation for an ongoing cottage industry in law and economics. And of all the law-and-economics scholarship built on Coase's insights, perhaps the most widely known and influential contribution has been Calabresi and Melamed's discussion of what they called "property rules" and "liability rules."' Those rules and the methodology behind them are our subjects here. We have a number of objectives, the most basic of which is to provide a much needed primer for those students, scholars, and lawyers who are …

The Cathedral' At Twenty-Five: Citations And Impressions, James Krier, Stewart Schwab

Stewart J Schwab

It was twenty-five years ago that Guido Calabresi and Douglas Melamed published their article on property rules, liability rules, and inalienability' Calabresi, then a law professor, later a dean, is now a federal judge. Melamed, formerly a student of Calabresi's, is now a seasoned Washington attorney. Their article-which, thanks to its subtitle, we shall call The Cathedral-has had a remarkable influence on our own thinking, as we tried to show in a recent paper2 This is not the place to rehash what we said then, but a summary might be in order. First, we demonstrated that the conventional wisdom about …

Avoiding The Pitfalls: Advertising In A Competitive Market, Francina Cantatore

Francina Cantatore

The consumer credit industry is a competitive market which is facing challenging times in view of more stringent regulation in recent times. Advertising is an essential ingredient in generating business in this environment, thus an awareness of acceptable advertising parameters is important for credit providers. Not only do organisations face civil and criminal sanctions for transgressions of the legislation, but directors and managers may be personally liable for misleading or deceptive advertising. This paper deals with a discussion of advertising legislation and current developments; advertising interest rates and requirements for comparison rates; false or misleading advertising and ASIC Guidelines; including …

The Role Of Fault In Contract Law: Unconscionability, Unexpected Circumstances, Interpretation, Mistake, And Nonperformance, Melvin Aron Eisenberg

Melvin A. Eisenberg

It is often asserted that contract law is based on strict liability, not fault. This assertion is incorrect. Fault is a basic building block of contract law, and pervades the field. Some areas of contract law, such as unconscionability, are largely fault based. Other areas, such as interpretation, include sectors that are fault based in significant part. Still other areas, such as liability for nonperformance, superficially appear to rest on strict liability, but actually rest in significant part on the fault of breaking a promise without sufficient excuse. Contract law discriminates between two types of fault: the violation of strong …

The Perversity Of Sexual-Harassment Law: Effects Of Recent Court Rulings, David Sherwyn, Michael C. Sturman, Zev J. Eigen, Michael Heise, Jenn Walwyn

Michael Heise

The outcome of 109 motions for summary judgment filed since June 1998, in which employers argued that a hostile-environment case should be dismissed because the employer satisfied, as a matter of law, the affirmative defense are analyzed. The examination of these cases provides the opportunity to test past conjecture and describe how courts have implemented the Ellerh and Faragher rulings. It is found that employers are still able to prevail in summary-judgment motions. With evidence showing that employers can satisfy the affirmative defense, each of the three areas that commentators have suggested should have prevented such success is examined. What …

An Economic Analysis Of Liability And Compensation For Harm From Large-Scale Solar Climate Engineering Field Research, Jesse Reynolds

Jesse Reynolds

Ex Post ≠ Ex Ante: Determining Liability In Hindsight, Kim A. Kamin, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Participants in three conditions (foresight, hindsight, and a modified hindsight condition designed to ameliorate the hindsight effect) assessed whether a municipality should take, or have taken, precautions to protect a riparian property owner from flood damage. In the foresight condition, participants reviewed evidence in the context of an administrative hearing. Hindsight participants reviewed parallel materials in the context of a trial. Three quarters of the participants in foresight concluded that a flood was too unlikely to justify further precautions—a decision that a majority of the participants in hindsight found to be negligent. Participants in hindsight also gave higher estimates for …

Reconceptualizing The Expert Witness: Social Costs, Current Controls And Proposed Responses, Jeffrey L. Harrison

Jeffrey L Harrison

Unlike virtually any other business, expert witnesses are not typically held accountable in either tort or contract law for their commercial activities. This means that many are inclined to deliver what the market demands - partisan, biased, or plainly dishonest testimony - without concern for the costs this testimony may impose on others. This immunity from the internalization of the social cost of their testimony is hard to reconcile with any moral or economic standard. Harsh judicial reactions to some experts and a slight increase in expert witness liability may signal that a change in the privileged status of experts …

Daños Punitivos En Mexico. Renacimiento De La Responsabilidad Civil, Jorge E. De Hoyos Walther

Jorge E De Hoyos Walther

La Suprema Corte de Justicia reconoce la existencia de los daños punitivos en México. Esta resolución tendrá un impacto importante en las demandas por responsabilidad civil y en los litigios transfronterizos.

Punitive Damages In Mexico, Jorge E. De Hoyos Walther

Jorge E De Hoyos Walther

In July 2014 several Court precedents were published, through which the existence of “Punitive Damages” in Mexico was recognized. This resolution will change the way in which civil liability is perceived in our country, and will have implications for individuals and companies doing business overseas.

Trademark Use And The Problem Of Source, Mark P. Mckenna

Mark P. McKenna

This Article mediates a scholarly debate regarding the existence and desirability of a "trademark use" doctrine. It argues that trademark use is a predicate of liability under the Lanham Act, but those who advocate treating trademark use as a threshold question put much more weight on that concept than it can bear. Courts cannot consistently apply trademark use as a distinct element of the plaintiff's prima facie case because trademark use can be determined only from the perspective of consumers. Specifically, courts can determine whether a defendant has made trademark use of a plaintiff's mark only by asking whether consumers …

Breathe Deeply: The Tort Of Smokers' Battery, Irene Scharf

Irene Scharf

This Article explores the long and faltering history of attempts to impose liability on tobacco product manufactures. Part II traces the manufacturers' historical and current actions of targeting youth through both promotions and deceptive advertising. Part III argues in favor of an expanded cause of action against the manufacturers for the intentional tort of battery. Part IV discusses the prospect of awards of punitive damages in these cases, and the Epilogue summarizes other advantages of the battery cause of action.

Application Of The Antitrust Laws To The Activities Of Insurance Companies: Heavier Risks, Expanded Coverage, And Greater Liability, Joseph Bauer, Earl W. Kintner, Michael J. Allen

Joseph P. Bauer

Since 1945 Congress has exempted certain activities of insurance companies from federal antitrust scrutiny. This exemption, provided by the McCarran-Ferguson Act, is not unqualified; it only applies to insurance company activities that constitute the "business of insurance" and that already are regulated under state law. Moreover, the exemption does not apply to activities that involve boycotts, coercion, or intimidation. The purpose of this exemption was to preserve the long tradition of state regulation of insurance, while providing federal remedies for coercive anticompetitive activities. The authors examine recent Supreme Court interpretations of the Act in light of this legislative policy and …

Municipal Liability And Liability Of Supervisors: Litigation Significance Of Recent Trends And Developments, Karen Blum, Celeste Koeleveld, Joel B. Rudin, Martin A. Schwartz

Martin A. Schwartz

"The purpose of this presentation is to examine two recent Supreme Court decisions, Connick v. Thompson and Ashcroft v. Iqbal with an eye to their impact on how lower federal courts will assess such claims in the wake of new constraints imposed by these cases. The focus of the discussion will be on developments in single-incident liability cases after Connick and supervisory liability claims after Iqbal."

States Beginning To Recognize That Training Is Essential For Members Of Planning And Zoning Boards And Local Legislative Bodies, Patricia E. Salkin

Patricia E. Salkin

Members of planning and zoning boards and local legislative bodies constantly make decisions that may be worth millions of dollars to applicants and that may have serious impacts on public health and safety. Unlike other players in the land use decision making process members of local legislative bodies and land use boards have no specific education or training in land use matters prior to their election or appointment putting them in the position to learn solely from “on the job training”. Five (5) states currently require mandatory training and continuing education courses for members of planning boards and zoning boards …

The Legal Challenges Of Networked Robotics: From The Safety Intelligence Perspective, Yueh-Hsuan Weng, Sophie T.H. Zhao

Yueh-Hsuan Weng

Social Networking And Land Use Planning And Regulation: Practical Benefits, Pitfalls And Ethical Considerations, Patricia E. Salkin

Patricia E. Salkin

This article explores how social networking sites have been used or might be used in the land use context. Part I focuses on the use of social networking for land use planning and zoning. It includes a discussion of the pros and cons of the use of social networking sites to present public information and to gather public input and invite general participation in the process, as well as to provide notice to the public of forthcoming government decision-making. This section offers concrete examples of how this technology is currently being used in the land use context. Part II focuses …

Corporate Ethics In A Devilish System, Kent Greenfield

Kent Greenfield

Prepared for a roundtable on corporate ethics at the University of Maryland School of Law, this essay argues that discussions of corporate ethics that focus on mere compliance with law are too narrow. While an emphasis on legal compliance is indeed crucial, a dedication to legality standing alone is hardly a robust sense of ethics, corporate or otherwise. Whether one takes guidance from religious norms or from secular philosophers, there are significant areas of agreement as to what amounts to ethical behavior: acting with due care for others; taking responsibility for the effect of one's actions; being honest; considering broadly …

Should Juries Be Informed That Municipality Will Indemnify Officer’S 1983 Liability For Constitutional Wrongdoing?, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Section 1983 Litigation, Martin A. Schwartz, George C. Pratt

Martin A. Schwartz

No abstract provided.

Claims For Damages For Violations Of State Constitutional Rights – Analysis Of The Recent Court Of Appeals Decision In Brown V. New York; The Resolved And Unresolved Issues, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Environmental Challenges Of Climate-Nuclear Fusion: A Case Study Of India, Deepa Badrinarayana

Deepa Badrinarayana

Climate change is launching a nuclear energy future, because nuclear power generation produces low greenhouse gas emissions. Nations are therefore reviewing their nuclear energy portfolio and expanding international cooperation on civilian nuclear energy. India is a notable example. Recognizing India’s energy demands and climate mitigation problems associated with fossil fuel use, the Nuclear Supplier’s Group, at the behest of the United States, removed nuclear trade sanctions imposed on India. India has been subsequently negotiating and signing numerous bilateral agreements aimed at expanding its domestic nuclear power generation facility. The apparent advantages of nuclear energy in mitigating climate change are significantly …