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Who Should be Liable? Examining the Corporate Liability Regime for Cybersecurity Risks
Get PDFThe growth of the Internet of Things (IoT) poses new and substantial security risks for individual and national security. The IoT leaves networks susceptible to hacking, a form of unauthorized access into another person’s system or device. All devices that use the IoT are at risk of unauthorized access—a few examples include vehicles or medical devices. Currently, there are no regulations requiring corporations to protect their software from unauthorized intrusions. However, the current tort landscape does not allow for individuals to recover when there are unauthorized network intrusions where there is no tangible harm. This paper discusses why cybersecurity intrusions are so dangerous to society and explores previous case law of unsuccessful law suits. Further, this paper analyzes corporate responsibility for preventing cybersecurity risks and why strict liability should be imposed against corporations. This paper concludes by urging Congress to act and begin regulating legislation to better protect individuals who could be harmed from a cyberattack
Separation of Powers Restrictions on Judicial Rulemaking: A Case Study of Federal Rule 4
Get PDFDebates over the validity of Federal Rules of Civil Procedure have historically centered on the substantive rights restriction of the Rules Enabling Act of 1934. While Supreme Court decisions from Sibbach v. Wilson & Co. through Hanna v. Plumer and beyond have arguably deprived the restriction of any practical force, scholars have consistently favored a more rigorous interpretation of the directive that federal rules not abridge, enlarge, or modify any substantive rights. Despite the historic impotence of the substantive rights restriction, discussions of the validity of the Federal Rules of Civil Procedure continue, even today, to center on the substantive rights issue to the exclusion of other possible determinants of rule validity. Curiously, neither courts nor commentators have focused much attention on potential constitutional restrictions on judicial rulemaking power. Scholars who have examined possible constitutional limitations on federal judicial rulemaking authority have concluded either that such limitations extend as far as and no farther than the substantive rights restriction or that any constitutional infirmity in the current rulemaking pattern results from the per se invalidity of congressional delegations of power to make rules that supersede statutes
Construing Consideration in Maine\u27s Recreational Use Statute: Robbins v. Great Northern Paper Co.
Get PDFSince 1961, when the Legislature enacted the original version of Maine\u27s recreational use statute, the Maine Supreme Judicial Court has had little opportunity to construe the statute\u27s several components. The recent case of Robbins v. Great Northern Paper Co., however, allowed the court to interpret the consideration exception of the statute for the first time. In a 4-3 decision, the Maine Supreme Judicial Court, sitting as the Law Court, ruled that a 95.00 rental fee is consideration within the common and ordinary meaning of the word. The present question is whether the majority\u27s method of narrow interpretation should prevail when the court faces future cases that challenge this exception provision. Although the majority reached a viable conclusion, no verbal definition of consideration was provided for the benefit of future litigants. Furthermore, since analogous case law from other jurisdictions with similar statutes is decidedly split, the majority\u27s reliance on some cases, and failure to distinguish others, remains unexplained. In general, consideration exceptions in recreational use statutes have spawned a body of seemingly confusing and contradictory decisions within American premises liability law. These exception provisions also raise broader questions of the role of the judiciary as interpreter of statutes and what constitutes a proper method of statutory interpretation. The objective of this Note is to offer a working definition of consideration which is congruent with existing case law and based on sound standards of statutory construction
Realizing the Right to Food in Maine: Insights from International Law
Get PDFIn November 2021, Maine made history as the first U.S. state to constitutionally recognize the right to food. Maine’s right to food amendment—which sought to address widespread food insecurity and corporate control of the food supply—proclaims food as a “natural, inherent and unalienable right,” and empowers Mainers to grow and consume food of their own choosing, affirming their right to food sovereignty. This Article makes three key contributions to scholarly examinations of this historic amendment. First, it situates the amendment within the broader landscape of domestic and global struggles for the right to food and food sovereignty. Second, the Article considers how the right to food framework under international human rights law can help define the normative content of Maine’s newly affirmed constitutional right, and the state’s corresponding obligations to uphold that right. Third, the Article proposes legislative and policy reforms to help realize the right to food in Maine, while also considering potential challenges. The Article concludes that despite these challenges, the right to food amendment carries the potential to ensure lasting food security in Maine, while shifting the balance of power in the food system
In Pursuit of the Appropriate Standard of Liability for Defective Product Designs
Get PDFSince the advent of strict products liability with the holding in Greenman v. Yuba Products Co. in 1963 and the promulgation of section 402A of the Restatement [Second] of Torts ( Restatement ) in 1965, courts have struggled to strike an appropriate balance between competing social policies with respect to liability for defective products. On the one hand, those injured by defective products should not be burdened by the contractual intricacies of the law of sales or the onerous (virtually insurmountable in products cases) evidentiary obstacles of negligence. On the other hand, most courts agree that manufacturers and distributors should not be absolute insurers, liable for any injury resulting from the use of their product. Originally, one of the primary justifications for adopting strict liability was to mitigate the evidentiary burdens of negligence. Negligence principles, along with warranty concepts, yielded unjust results and proved to be inadequate and unsatisfactory as consumers continually lost under these theories. As a California court noted, the very purpose of our pioneering efforts in this field was to relieve the plaintiff from problems of proof inherent in pursuing negligence. Hence, under strict liability, a plaintiff need not prove faulty conduct by the defendant manufacturer. Almost since the initial development of strict liability, courts have divided on whether a totally fault-free theory of liability is appropriate for all defective products cases. Despite attempts by various courts to develop a theory of strict liability for products that is totally distinct from negligence, confusion and controversy continue to characterize the ambiguous role negligence plays in strict products liability actions. The debate over the role of negligence principles in strict liability dates back to the promulgation of section 402A in 1965. Dean Wade observed in that year: [T]he test for imposing strict liability is whether the product was unreasonably dangerous, to use the words of the Restatement . . . . It may be argued that this is simply a test of neglignece. Exactly. The strict liability-negligence controversy most often arises when the alleged defect is the product\u27s intended design rather than an unintended flaw in its manufacture. Many courts and commentators have suggested that such design defect cases, in which the manufacturer\u27s conscious design choice for an entire product line is being impugned, unavoidably and aptly implicate negligence principles. The rationale behind strict liability realistically applies only to defects resulting from manufacturing flaws, they argue, and thus the theories are practically indistinguishable in design defect cases. Others have adamantly persisted in contending that a distinct theory of strict liability can and should apply to design, as well as manufacturing, defects. Maine courts recognized the ongoing debate in 1983 in Stanley v. Schiavi Mobile Homes, Inc. The Stanley court stated: Currently, there is a split of opinion as to whether a distinction exists between negligence and strict liability theories of recovery when applied to cases based upon design defects. Despite this observation, the Stanley court reached its decision without addressing this conflict of opinion. Recently, however, the Maine Supreme Judicial Court, sitting as the Law Court, was squarely presented with the issue it declined to address in Stanley. St. Germain v. Husquarna Corp., in effect, applied a negligence theory to a strict liability claim for injuries caused by a defective design, intimating that in Maine the theories are virtually indistinguishable in design defect cases. A review of the various tests that have emerged in the context of the national controversy surrounding the role that negligence principles should and do play in the evaluation of defective designs reveals that a fault basis is inextricable from any design evaluation. An assessment of a conscious design choice invariably involves an assessment of the knowledge and conduct of the manufacturer that led to the choice. Evaluating a manufacturer\u27s consciously chosen design under a negligence-type fault standard is most appropriate because it is consistent with the purposes and policies of the law of products liability and tort law in general. Maine\u27s St. Germain decision, which was foreshadowed by a number of earlier strict liability cases, contributes to the integrity of our tort system by adopting negligence as the proper standard to be applied to the defective design claims
Multi-Parent Custody
Get PDFIn recent years, a number of jurisdictions have enacted laws recognizing that a child may have more than two legal parents (multi-parentage). Recognition of multi-parentage represents a significant change to the legal framework governing parentage— for most of U.S. history, it was well established that a child could have a maximum of two legal parents. While commentators undoubtedly will continue to debate the wisdom of multi-parentage recognition, it is clear both that multi-parentage has arrived and that its arrival raises many novel and important questions across a variety of areas of the law. Proponents and opponents of multi-parentage agree that child custody represents one of the core areas in which multi-parentage recognition will raise complicated questions that warrant careful consideration. It is inevitable that, just as child custody disputes arise in two-parent families, such disputes also will occur in multi-parent families. As a result, legislatures and courts soon will face the task of deciding how to approach custody disputes involving children who have more than two legal parents. This Article examines a number of the core initial questions that multi-parentage recognition will raise in the child custody context. These questions include: (1) whether parents who share an intact relationship and are involved in a dispute with another parent should be considered a single entity or separate entities for purposes of the custody determination; (2) whether legal standards employing presumptions in favor of joint custody, which have become increasingly popular in the two-parent custody context, should extend to multi-parent custody disputes; and (3) to what degree the law should encourage settlement and defer to agreements reached by the parties in multi-parent custody disputes. The Article concludes by setting forth detailed proposals regarding how lawmakers and courts should resolve these essential questions
Strategic Minerals and the U.S. Arctic Continental Shelf
Get PDFThe United States may seek to reduce its dependency on China for strategic minerals and rare earth elements by exploiting deposits on its continental shelf in the Arctic region. On December 19, 2023, the United States announced the outer limits of it extended continental shelf. Like other countries, the United States exercises sovereign rights and jurisdiction over the living and non-living resources of the continental shelf, which is comprised of the sea bed and subsoil of the continental margin. The U.S. continental shelf extends beyond 200 nautical miles in seven locations, including the Bering Sea and Arctic Ocean. Although the concept of the continental shelf historically has been associated with offshore oil and natural gas, the area presents opportunities for obtaining strategic hard minerals and rare earth elements required for an array of advanced technologies associated with national security, “green” energy, and information technologies. The United Nations Convention on the Law of the Sea codifies the rules governing coastal State sovereign rights and jurisdiction over such minerals, although the United States is not party to the Convention. The United States suggests that it retains rights in customary international law to exploit the mineral resources of the continental shelf, but U.S. absence from the Convention presents complications. It is uncertain whether the United States is entitled to access the machinery of the Commission on the Limits of the Continental Shelf, a scientific body created by the Convention to make recommendations to States on the extent of their continental shelf claims. At the same time, given that that Convention reflects customary international law, the United States might be obligated to utilize the process set forth the Convention, including submitting its continental shelf data to the Commission on the Limits of the Continental Shelf. As the United States weighs the economic value of strategic minerals against the environmental costs related to exploiting these resources, it also must contend with its status as a non-party to the Convention
Legislative Ethics: Improper Influence by a Lawmaker on an Administrative Agency
Get PDFMoral and ethical dilemmas are inherent in the legislative process. Representative democracy raises a fundamental ethical conflict for lawmakers: choosing between representing constituent views or following personal convictions. Recent moral crises of elected officials have demonstrated the complex, diverse, and problematic nature of political ethics, yet the belief that these guardians of the public trust must successfully distinguish among the subtle distinctions of political ethics remains an integral tenet of American political thought. One of the most perplexing moral dilemmas a legislator faces is deciding what degree of influence can be exerted on an administrative agency to obtain a result beneficial to the lawmaker\u27s constituency without violating ethical principles. There is little doubt that the American political system requires and accepts a legislator\u27s influencing agency actions as part of the legislator\u27s democratic function, but whenever a lawmaker exerts such influence, not for personal gain but on behalf of a member of the general public, the lines distinguishing ethical from unethical behavior inevitably become blurred. The issue of improper influence on an agency by a legislator is further complicated by the unique constitutional structure of American government and conflicting beliefs in American political thought. Few societies share the strong belief in individuality, the desire for government to solve problems, and the healthy distrust of bureaucracy that are found in American culture. This Comment explores the ethical questions raised when legislators use their knowledge and influence on behalf of their constituencies to affect the behavior of administrative agencies. Current methods of resolving ethical problems in legislative service that could be used to address questions of improper influence raise constitutional, political, and legal issues. Any resolution to the question of improper influence must first recognize the legitimacy and democratic function of lawmaker influence on administrative agency actions. The complex, diverse, and contextual nature of such ethical questions makes the creation of effective general ethical principles impractical. Legislatures and individual legislators must become sensitive to the types of situations that may raise ethical questions and address them on a case by case basis