Hauptman-Woodward Medical Research Institute
Digital Commons @ University at Buffalo School of LawNot a member yet
8606 research outputs found
Sort by
Amazon as a Seller of Marketplace Goods Under Article 2
Get PDFYou have probably purchased goods on Amazon. Did you know that if the goods you purchased on Amazon turn out to be defective and cause serious personal injury, Amazon is probably not liable for them? Did you know that even though you placed an order on Amazon, gave payment to Amazon, and received the goods in an Amazon box, there is a good chance that the goods are not “sold by” Amazon—but are instead sold by a third-party seller? Did you know that Amazon tries to avoid liability for goods sold on its platform on the technicality that it does not hold “title” to third-party seller goods, even though it promotes those goods online using Amazon branding, stores them in Amazon facilities, and delivers them in Amazon trucks? And did you know that the reason Amazon does not have title to those goods is because it unilaterally sets the title terms in its 68-page contract with thirdparty sellers?
In this Article, I look at Amazon’s liability as a seller of unmerchantable goods under Article 2 of the Uniform Commercial Code. Thus far, litigants and courts have almost exclusively focused on Amazon’s liability in tort. I argue that there is a compelling argument that Amazon is liable for defective third-party goods because it is a merchant seller under § 2-314 of the Uniform Commercial Code. The biggest stumbling block to recovery under Article 2 is Amazon’s title argument. I deconstruct the title argument in detail, positing that Article 2 may not require the seller to hold title to ground liability, and, even if it does, it is not clear that Amazon does not have title to third-party goods in its possession. I also look specifically at a completely under-the-radar provision that should have a huge impact on Amazon’s title defense: the commingling clause in the Amazon Services’ Business Solutions Agreement. I maintain that this clause seriously undermines Amazon’s title argument and opens the door to Article 2 liability. This could be a game changer in terms of future litigation.
I also broaden the lens beyond title to argue that Amazon casts itself in the role of seller with respect to all transactions on its platform. It does everything it can to convince buyers that they are purchasing from Amazon, not through Amazon. This is deliberately designed to capitalize on the trust that buyers place in the Amazon brand. Based on its degree of control over sales transactions and its efforts to hide the identity of the supposed “true seller,” Amazon should be equitably estopped from arguing that it is not a seller of third-party goods sold on its website
The Irrepressible Myth of Jacobson v. Massachusetts
Get PDFDuring the COVID-19 outbreak, Jacobson v. Massachusetts became the fountainhead for pandemic jurisprudence. Courts relied on this 1905 precedent to resolve disputes about religious freedom, abortion, gun rights, voting rights, the right to travel, and many other contexts. But Justice John Marshall Harlan’s decision was very narrow. It upheld the state’s power to impose a nominal fine on an unvaccinated person. No more, no less. Yet, judges now follow a variant of Jacobson that is far removed from the Lochner-era decision. And the Supreme Court is largely to blame for these errors. Over the course of a century, four prominent Justices established the irrepressible myth of Jacobson v. Massachusetts.
This myth has four levels. The first level was layered in Buck v. Bell (1927). Justice Holmes recast Jacobson’s limited holding to support forcible intrusions onto bodily autonomy. The law did not involve forcible vaccination, but Holmes still used the case to uphold a compulsory sterilization regime. The second level was layered in 1963. In Sherbert v. Verner, Justice Brennan transformed Jacobson, a substantive due process case, into a free exercise case. And he suggested that the usual First Amendment jurisprudence would not apply during public health crises. The third level was layered in 1973. In Roe v. Wade, Justice Blackmun incorporated Jacobson into the Court’s modern substantive due process framework. Roe also inadvertently extended Jacobson yet further: during a health crisis, the state has additional powers to restrict abortions. The fourth layer is of recent vintage. In South Bay United Pentecostal Church v. Newsom, Chief Justice Roberts’s “superprecedent” suggested that Jacobson-level deference was warranted for all pandemic-related constitutional challenges. This final layer of the myth, however, would be buried six months later in Roman Catholic Diocese of Brooklyn v. Cuomo. The per curiam decision followed traditional First Amendment doctrine and did not rely on Jacobson. But Jacobson stands ready to open up an escape hatch from the Constitution during the next crisis. The Supreme Court should restore Jacobson to its original meaning, and permanently seal that escape hatch.
This Article, written in the midst of the pandemic, will revisit, repudiate, and replace the irrepressible myth of Jacobson v. Massachusetts
A Nun, a Synagogue Janitor, and a Social Work Professor Walk Up to the Bar: The Expanding Ministerial Exception
Get PDFSome employees who hold significant positions within some religious organizations fall outside the protections of certain laws, especially employment discrimination laws. But which employees, which organizations, and which laws? In its 2020 decision in Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court reaffirmed the “ministerial exception” doctrine, a constitutional immunity that is “extraordinarily potent” where applicable.1 The doctrine exempts religious employers from liability for nearly all forms of discrimination, some torts, and some breaches of contract, even when an employer does not act for religious reasons.
This Article argues that Our Lady of Guadalupe School marks a new stage in the exception’s gradual expansion. Parts I and II demarcate the doctrine’s boundaries where they are clear, particularly for educators who teach religion. Analyzing the Court’s two ministerial exception decisions and the lower-court cases that have applied them, Part III identifies where gaps in the Court’s analysis have enabled courts to expand the exception still further. This expansion has occurred along three intersecting lines: who qualifies as a minister, what claims the exception bars, and which employers may invoke the exception. As the doctrine develops, the conditions of employment for hundreds of thousands of employees of religiously affiliated organizations hang in the balance.
Part IV offers a policy proposal. Until the Court cabins the ministerial exception within clearer boundaries, religious institutions should voluntarily notify each employee regarding whether the institution considers the employee’s position to fall within the exception. This practice, which aligns with the social ethics of major U.S. religious groups, would provide clarity throughout the employment relationship, streamline litigation, and enable employers who are willing to waive the exception to compete for discerning employees
Baldy Center Podcast Episode 11 Picture
No full textMiddle East after university-led urban renewal. Photograph courtesy of Erkin Özay, 2019.https://digitalcommons.law.buffalo.edu/baldy_center_images/1010/thumbnail.jp
Baldy Center Podcast Episode 21 Picture
No full texthttps://digitalcommons.law.buffalo.edu/baldy_center_images/1018/thumbnail.jp
A Post Minimum Contacts World
Get PDFReviewing Patrick J. Borchers, Ford Motor Co. v. Montana Eighth Judicial District Court and “Corporate Tag Jurisdiction” in the Pennoyer Era, 72 Case W. Res. L. Rev. 45 (2021)
Genetic Freedom of the Seas in the Age of Extractivism: Marine Genetic Resources in Areas Beyond National Jurisdiction
Get PDFPublished as Chapter 4 in Laws of the Sea: Interdisciplinary Currents, Irus Braverman, ed.
Areas beyond national jurisdiction are the largest environment on earth and marine genetic resources are its new, and perhaps final, frontier. It is no wonder, then, that the scope and protection of marine genetic resources in this oceanic space have been hotly contested and that a new doctrine for ocean governance has been coined in this context: mare geneticum. This chapter examines different definitions of marine genetic resources debated in the ongoing treaty negotiations over areas beyond national jurisdiction (the BBNJ), the conflicting interests involved, and how the law-science relationship has figured in these debates. Ultimately, many of the debates do not challenge the extractivist mindset, which s, decontextualizes, and recontextualizes ocean life into resources and benefits and that journey from data into information. Drawing on the details of the law-science debate about the scope of marine genetic resources, this chapter calls upon the community of ocean experts, both legal and scientific, to seize the precious opportunity of crafting a new treaty for areas beyond national jurisdiction to challenge the extractivist mindset and to consider an alternative mode of relating to ocean lifeworlds.https://digitalcommons.law.buffalo.edu/book_sections/1436/thumbnail.jp
Baldy Center Podcast Episode 1 Picture
No full textPhoto by Gerd Altmann, Pixabay.https://digitalcommons.law.buffalo.edu/baldy_center_images/1000/thumbnail.jp