The Heavy Hand Of Amazon: A Seller Not A Neutral Platform,
2020
Brooklyn Law School
The Heavy Hand Of Amazon: A Seller Not A Neutral Platform, Edward J. Janger, Aaron D. Twerski
Brooklyn Journal of Corporate, Financial & Commercial Law
Since the adoption of Section 402A of the Second Restatement of Torts, every party in a product’s distribution chain has been potentially liable for injuries caused by product defects. Consumers who buy from reputable sellers are almost always guaranteed to have a solvent defendant if injured by a product defect. Amazon, though responsible for a vast number of retail sales, has sought to avoid liability by claiming that it is not a seller but a neutral platform that merely facilitates third-party sales to consumers. With two significant exceptions, most courts have sided with Amazon and concluded that Amazon is not …
The Female Legal Realist Inside The Common Law,
2020
University of New Hampshire Franklin Pierce School of Law
The Female Legal Realist Inside The Common Law, Ann Bartow
Law Faculty Scholarship
This essay, a response piece to Anita Bernstein’s thought-provoking book The Common Law Inside the Female Body, examines the powerful tool of the common law and the role that judges play in wielding it. I begin by drawing on my twenty-four years of teaching and looking at the questions that I, and my students, grapple with every year while studying the common law: Do the uncoordinated actions of individual judges, juries, and lawyers and parties generate an efficient legal system? And does that system result in some version of justice for most of the parties, most of the time, …
Rules, Standards, And Such,
2020
Cornell Law School
Rules, Standards, And Such, Kevin M. Clermont
Cornell Law Faculty Publications
This Article aims to create a complete typology of the forms of decisional law. Distinguishing "rules" from "standards" is the most commonly attempted jurisprudential line, roughly drawn between nonvague and vague. But no agreement exists on the dimension along which the rule/standard terminology lies, or on where the dividing line on the continuum lies. Thus, classifying in terms of vagueness is itself vague. Ultimately it does not aid legal actors in formulating or applying the law. The classification works best as an evocative image.
A clearer distinction would be useful in formulating and applying the law. For the law-applier, it …
The Common Law As A Force For Women,
2020
Elisabeth Haub School of Law at Pace University
The Common Law As A Force For Women, Bridget J. Crawford
Elisabeth Haub School of Law Faculty Publications
This essay introduces a collection of Symposium Essays examining Anita Bernstein's book, The Common Law Inside the Female Body (Cambridge University Press, 2019). Professor Bernstein explores the common law's recognition of both rights and liberties, highlighting in particular negative liberties such as the right to be left undisturbed. The Symposium Essays test and explore Professor Bernstein's thesis as applied to the right to be free from rape and unwanted pregnancies. Grounded in perspectives informed by the study of tort law, legal history, intellectual property, constitutional law, and critical race theory, these Essays--together with Professor Bernstein's book--suggest that the common law …
Why Class Actions Are Something Both Liberals And Conservatives Can Love,
2020
Vanderbilt University Law School
Why Class Actions Are Something Both Liberals And Conservatives Can Love, Brian T. Fitzpatrick
Vanderbilt Law School Faculty Publications
In Professor Redish's review of my new book, The Conservative Case for Class Actions, he argues that liberals should oppose the class action because the cy pres doctrine used to distribute settlement money is democratically illegitimate and that conservatives should oppose it because it is inferior to government policing of the marketplace or no policing at all. But cy pres is a longstanding common law doctrine and relying on it is no more illegitimate than relying on any other common law doctrine that has not been abrogated by legislation. Moreover, contrary to popular caricatures, conservatives actually do believe the marketplace …
The Common Law Of Cyber Trespass,
2020
Brooklyn Law School
The Common Law Of Cyber Trespass, Michael J. O'Connor
Brooklyn Law Review
Right now, if executives in California and Virginia each bribe a competitor’s disloyal employee to steal a trade secret from the competitor’s servers, under the federal Computer Fraud and Abuse Act (CFAA), the Government can charge one executive but not the other. Courts decide these cases differently due to the widening circuit split over the CFAA term “without authorization.” Neither the Supreme Court nor Congress has shown interest in resolving the split over authorization. Even more concerning is the suggestion that they can’t resolve it; the statute addresses too many potential scenarios for a single definition to end all debate. …
Fmc Corp. V. Shoshone-Bannock Tribes,
2020
Alexander Blewett III School of Law at the University of Montana
Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla
Public Land & Resources Law Review
In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction over …
Classifying Systems Of Constitutional Review: A Context-Specific Analysis,
2020
Indiana University Maurer School of Law
Classifying Systems Of Constitutional Review: A Context-Specific Analysis, Samantha Lalisan
Indiana Journal of Constitutional Design
Modern constitutional drafters and advisors increasingly use judicial review classifications and the current model for classification does not accurately capture constitutional review in Latin America. This paper proposes context-specific classification that can accurately capture constitutional review in the Latin American region. Specifically, this paper argues that the context-specific analysis suggests that the more salient point of classification in Latin America is that of access mechanisms to constitutional courts. As such, the paper proceeds in four parts: Part I examines the traditional model of classification in Europe and focuses on the Spanish and German direct access mechanisms. Part II explores the …
Re-Reading Anita Bernstein's The Common Law Inside The Female Body From The Bottom Of The Well: Analysis Of The Central Park Five, Border Drownings, The Kavanaugh Confirmation, And The Coronavirus,
2020
Barry University
Re-Reading Anita Bernstein's The Common Law Inside The Female Body From The Bottom Of The Well: Analysis Of The Central Park Five, Border Drownings, The Kavanaugh Confirmation, And The Coronavirus, Nadia B. Ahmad
Faculty Scholarship
No abstract provided.
Reflections On The Effects Of Federalism On Opioid Policy,
2020
Emory University School of Law
Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence
Dickinson Law Review (2017-Present)
No abstract provided.
The Opioid Litigation: The Fda Is Mia,
2020
NYU School of Law
The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey
Dickinson Law Review (2017-Present)
It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have …
The Need For Certainty And Written Form In Land Sale Contracts In China: A Legal Reform Recommendation,
2020
Univ. of New South Wales
The Need For Certainty And Written Form In Land Sale Contracts In China: A Legal Reform Recommendation, Wei Wen
Cardozo International & Comparative Law Review
Despite the significance of land sale contracts, China's Contract Law (the supreme authority in contractual matters) fails to articulate whether written form is mandatory for land sale contracts as a prerequisite for contractual remedies. The result of this ambiguity is that urban and rural courts across China have delivered contradictory judgments on this matter, and Chinese claimants do not have clear rules or authorities to follow. This imposes unfairness on those claimants. This article examines and analyzes the uncertainty and its causes, reaching a conclusion that the solution to addressing the nationwide uncertainty is a legal reform-Contract Law should articulate …
Were Justices Lawyers?,
2020
William & Mary Law School
The Parable Of The Forms,
2020
St. John's University School of Law
The Parable Of The Forms, Samuel L. Bray
St. John's Law Review
(Excerpt)
It might be good for each department to have its own form, or it might be better to have one form for the whole campus. That is an open question. It depends on how different the repair requests are in different departments, and on the value of specialization. It depends on whether we want some complexity about the choice of forms or if we want radical simplicity about the number of forms, with all of the complexity residing within a single form.
So, too, it might be good to have different forms of action. That way, everyone knows upfront …
Legal Genres,
2020
William & Mary Law School
Who Are The "We"?,
2020
William & Mary Law School
The Need For Federal Disclosure And Fraud Protection In The Workplace,
2020
American University Washington College of Law
The Need For Federal Disclosure And Fraud Protection In The Workplace, Carlos Garcia
Legislation and Policy Brief
No abstract provided.
Putting The People Into Legal History,
2020
William & Mary Law School
Putting The People Into Legal History, Thomas J. Mcsweeney
Popular Media
No abstract provided.
The Overly Familiar Treatise,
2020
William & Mary Law School
Drones: Where Does The National Airspace System Start?,
2020
Kent State University
Drones: Where Does The National Airspace System Start?, Jason T. Lorenzon J.D.
National Training Aircraft Symposium (NTAS)
Unmanned Aerial Systems (UAS), Unmanned Aeronautical Vehicles (UAV), drones and Personal Aerial Vehicles (PAV) constitute the greatest technological advancement since the jet age. (Elaine Chao, Secretary of Transportation, October 26, 2017) This technological advancement has prompted significant public policy challenges and the need for new laws regarding navigable airspace. This proposal investigates how airspace used by drones will evolve given existing Constitutional and common law principals. These principals will influence the creation, development and modification of UAS airspace regulations by the Federal Aviation Administration (FAA).
Two critical but unanswered questions concerning the National Airspace System, are where does navigable airspace …
