Law Commons^™

Evisceration Of The Right To Appeal: Denial Of Individual Responsibility As Actionable Genocide Denial, Jennifer E. King

Vanderbilt Law Review

Tensions arise during litigation in the international criminal justice system between the practice of the international criminal tribunals, domestic laws, and policy decisions of United Nation (“UN”) Member States. One such tension arises between domestic genocide denial laws, which typically criminalize denial of genocide as a strict liability offense, and the preservation of due process for persons convicted of genocide seeking appeal. In theory, denying individual responsibility during the appeal of a conviction by an international tribunal could constitute punishable genocide denial under some domestic laws. This criminalization of the appeal process would violate the due process rights of international …

The "Strict Liability" Of Direct Patent Infringement, Lynda J. Oswald

Vanderbilt Journal of Entertainment & Technology Law

In 1995, the Federal Circuit summarily attached the label of "strict liability" to direct patent infringement, even though that term does not appear in any US Patent Act enacted in the past two centuries. The catechism of "strict" direct patent infringement liability is now so well engrained in patent doctrine that it is easy to lose sight of how recent the advent of this terminology is in the case law, and how troublesome application of this standard has proven, even to the Federal Circuit, which created it. The first Patent Act (1790) preceded the emergence of tort law as a …

The International War Against Doping: Limiting The Collateral Damage From Strict Liability, Thomas W. Cox

Vanderbilt Journal of Transnational Law

The World Anti-Doping Agency (WADA) and the World Anti-Doping Code are largely considered the model for an effective and well-coordinated antidoping regime. This model has allowed numerous sports and various countries to secure the same rules for domestic and international athletes. Within this regime, strict liability for prohibited substances stands as the "cornerstone." Strict liability has allowed antidoping officials to prosecute doping violations through an effective testing regime. However, this principle occasionally implicates innocent athletes with no intention of performance enhancement. This Note proposes that WADA modify its criteria for including substances on the Prohibited List and suspend strict liability …

Cyberspace, Exceptionalism, And Innocent Copyright Infringement, Jacqueline D. Lipton

Vanderbilt Journal of Entertainment & Technology Law

Direct copyright infringement attracts strict liability. However, as a theoretical matter, it is not necessarily clear why. Legislatures and courts have typically imposed strict liability where: (a) a defendant has notice of a plaintiff's rights, particularly where those rights involve a property interest; (b) a mens rea requirement on the part of the defendant would create an untenable burden on the plaintiff; (c) it is easier for the defendant to avoid harming the plaintiff than it is for the plaintiff to avoid the harm; or, (d) it is more administratively or economically efficient for the defendant to bear the risk …

Reconceptualizing Strict Liability In Tort: An Overview, Martin A. Kotler

Vanderbilt Law Review

In a series of books and articles, Professor Marshall Shapo has developed the idea of American tort law as a "cultural mirror"--a legal system reflecting cultural norms that serves as the "intellectual and practical foundation for society's response to injuries." The "cultural mirror" metaphor captures both the notion that there is a substantive normative basis for tort law that exists within society and the procedural notion that tort law ensures that those underlying norms are reflected in the resolution of tort disputes.

Although I believe Professor Shapo's description to be fundamentally correct, it is also incomplete, and, as a result, …

Restating Strict Liability And Nuisance, Robert E. Keeton

Vanderbilt Law Review

John Wade was a master of the craft of restating the law. The American Law Institute ("ALI") benefitted especially from his distinctive service during development of the Restatement (Second) of Torts. It is fitting that we use, as a vehicle for honoring his service, an inquiry into a segment of tort law that was first considered in the decades just after the Institute was founded and remains, even today, among the most difficult areas of law to restate. This segment of tort law concerns the general theory of strict liability and the extent that it applies to nuisance cases.

To …

The Common Law As Cricket, David F. Partlett

Vanderbilt Law Review

Cricket and baseball are the summer national pastimes of England and America. They both involve players, one of whom propels a hard leather ball toward another with the intent of getting that other "out."The hitter tries to avoid getting out and attempts to hit the ball as far as possible. Umpires preside. Despite all these and other common factors, the games are different. Baseball is brash and dusty, and umpires endure frequent abuse; cricket is restrained and village greenish, and umpires rarely suffer abuse. Both games draw from history and culture.Where transplanted the games assume a different guise. In the …

Strict Liability For Defective Ideas In Publications, Andrew T. Bayman

Vanderbilt Law Review

In 1963 the Supreme Court of California revolutionized the law of torts by adopting the theory of strict liability in products liability cases.' The American Law Institute subsequently promulgated section 402A of the Restatement (Second) of Torts in 1965. Section 402A provides that the seller of a "product in a defective condition unreasonably dangerous" may be held liable even though he has "exercised all possible care."' Today, nearly every state has adopted some form of section 402A.' Moreover, the list of modern products to which section 402A applies is virtually limitless. Yet, despite the unprecedented expansion of strict liability into …

Tort Law Reform: Strict Liability And The Collateral Source Rule Do Not Mix, Victor E. Schwartz

Vanderbilt Law Review

The imposition of strict liability and the simultaneous application of the collateral source rule to innocent defendants represent unfair and unsound public policy. Strict liability and the collateral source rule should not be mixed; nevertheless, our courts inadvertently blend them. A fundamental reform that would help stabilize the American tort law system is to abolish the collateral source rule in to whenever a claimant relies on a strict liability theory.The collateral source rule is appropriate only when a claimant proves that the defendant was at fault in causing an injury. There is a broad view in the United States that …

Criminal Liability Of Corporate Officers For Strict Liability Offenses - Another View, Kathleen F. Brickey

Vanderbilt Law Review

This Article offers an alternative analysis of the doctrine articulated by the Supreme Court in Dotterweich and Park and its subsequent application by the Ninth Circuit. In the course of so doing, it suggests that Professor Abrams has lost sight of the public welfare offense model that provided the analytical framework within which the cases were decided and that his postulates may thus be faulted as lacking in context. The analysis in this Article demonstrates that the responsible share standard of liability has, from the outset, incorporated the requirement of an act or omission to act and that of causation …

Unmasking The Test For Design Defect: From Negligence [To Warranty] To Strict Liability To Negligence, Sheila L. Birnbaum

Vanderbilt Law Review

This Article will consider the problems engendered by imprecise judicial analysis of the notion of design defect. The central issues informing this investigation are as follows: (1) Can the notion of manufacturer fault or negligence be rationally eliminated in a design defect case? and (2) Should the term "unreasonably dangerous" be retained in the definition of defect in a design case, and if so, how should it be defined?

Rethinking The Policies Of Strict Products Liability, David G. Owen

Vanderbilt Law Review

In the evolution of products liability law, therefore,should be the time for doing what usually comes late in the common-law process: to develop a system of fundamental social values and goals to be protected and advanced by the law in this area. Broadly stated, an appropriate balance between individual liberty and social welfare needs to be struck within a fair and workable adjudicatory system. Once a jurisprudential basis of this type has been set, we may then begin to develop a consistent set of principles tailored to this area of the law. It will then be possible to construct one …

Products Liability-Drugs And Cosmetics, Page Keeton

Vanderbilt Law Review

Much has been written by judges and scholars about abrogation of both the requirement of privity for recovery on warranty theories and the prerequisite of a finding of negligence for recovery on a tort theory against manufacturers and other sellers of all kinds of products.' As a consequence of this abrogation, the courts in some states have completed the change-over from a fault to a strict liability theory of recovery for harm resulting from unintended and latent dangerous conditions of products. Moreover, removal of initial restrictions limiting strict liability to users and consumers is proceeding apace, and the logical extension …