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Highspeed Pursuit of a Claim for Negligence: Analyzing Police Liability in a Vehicular Accident Involving Bystanders
Get PDFBetween 1994 and 2002, 3,146 people died as a result of highspeed police pursuits. Many of these decedents were pedestrians, bicyclists, or occupants of an uninvolved vehicle. In fact, statistics from the Federal Bureau of Investigation (“FBI”) indicate that bystander fatalities make up approximately 42% of total fatalities resulting from highspeed pursuits by law enforcement. Deaths related to these pursuits may be even greater than the statistics suggest due to underreporting on the matter. How is fault attributed when a highspeed police pursuit harms an innocent bystander? Can a court attribute liability to law enforcement? Are there legal remedies available for victims to pursue against law enforcement? The Missouri Court of Appeals for the Eastern District recently addressed these issues in Harris v. City of St. Louis
Cancel Carte Blanche for the Information Industries: Federalizing U.C.C. Article 2.
Get PDFWarranty disclaimers, caps on damages, predispute mandatory arbitration, and anti-class action waivers constitute what I call, “no responsibility” or “rights foreclosure clauses” in computer contracts. This is the first empirical study of how the information industries, which include the 100 largest software companies and the 100 largest digital companies, deploy one-sided warranty disclaimers, caps on damages, and predispute mandatory arbitration clauses coupled with class action waivers to shift responsibility for defective software to the user communities. This gives the information industries carte blanche to release dangerously defective software without consequences. In their standard form contracts, the industries do whatever they wish by incorporating their designed terms and conditions. The software industry assert contractual rights without providing corresponding meaningful remedies for breach in their computer contracts. The net effect of these no responsibility clauses is to require users to waive their right to a judicial forum in favor of arbitration, where the stronger party is at a distinct advantage. Congress needs to enact a federal U.C.C. Article 2 reform that will invalidate no responsibility clauses, thus restoring mutuality in software license agreements
Time for an Audible: Possible Solutions for NIL Collectives Seeking Tax-Exempt Status Following IRS Memo
Get PDFThe United States Supreme Court’s decision in NCAA v. Alston sent shockwaves throughout the world of college sports. The Court’s recognition of student athletes’ abilities to profit from their name, image, and likeness (“NIL”) revolutionized the landscape of collegiate athletics. Shortly thereafter, the National Collegiate Athletic Association (the “NCAA”) adopted its Interim NIL Policy, explicitly allowing opportunities for companies, entities, or individuals to pay student athletes for use of their NIL. Unsurprisingly, athletes capitalized on the opportunities immediately. For example, Hanna and Haley Cavinder, former women’s college basketball players with millions of followers on social media, completed an NIL deal with Boost Mobile, a wireless service provider, within hours of the NCAA policy’s enactment. Despite the almost instant onset of NIL-related activities, questions remained as to the permissible scope of parties’ involvement with these deals. Specifically, should student athletes individually procure their own NIL deals, or can organizations assist student athletes in the process
Choosing Your Judge
No full textAccounts of American litigation pose a contradiction: Forum shopping is acceptable, but judge shopping is not. Formal disfavor toward judge shopping is pervasive, and attempts by parties to manipulate the assignment of their case are deemed abusive and even sanctionable. Nevertheless, sophisticated judge-shopping tactics have proliferated in specific areas of the law—particularly in challenges to executive branch policies and in the reorganization of large companies under Chapter 11. In these disparate areas, judge-shopping strategies have been deployed in high-profile cases, ranging from a challenge to the FDA’s authorization of an abortion drug to the opioid-driven bankruptcy of Purdue Pharma. In these cases and others like them, plaintiffs used permissive venue rules to reach small geographical divisions where a single, preferred judge hears all or nearly all cases. These trends led to recent and contested proposals by the Judicial Conference to encourage random assignment.This article first introduces a framework to distinguish between types of judge shopping, explaining why some forms are more problematic than others. Then, it compares judge shopping across areas of law, examining the basis for common intuitions against the practice. It concludes that judge shopping in the regulatory context is especially concerning, with its attendant impact on national governance and its selection away from judicial expertise in administrative law. In contrast, in bankruptcy cases, judge shopping can be disentangled from other controversial—and independently fixable—bankruptcy problems. When examined as a conceptually independent issue, judge shopping in the bankruptcy context raises relatively fewer concerns.Having concluded that judge shopping is more problematic in some areas than others, this article examines potential reforms to address it, including and in addition to the Judicial Conference’s recent recommendations. Alternative possibilities include the abolition of single-judge divisions, reforms to venue statutes, the use of three-judge district court panels to review certain cases, and the granting of judicial peremptory strikes
The Important Role of Attorneys in Promoting Parties\u27 Self-Determination in Mediation
No full textThis short article analyzes the meaning of self-determination, and it demonstrates that attorneys generally have much greater ability than mediators to promote parties’ self-determination. I argue that “self-determination” is an admirable but unattainable ideal.
Instead, attorneys and mediators should focus on promoting parties’ best possible decision-making under the circumstances. To optimally promote the quality of parties’ decision-making during mediation sessions, they must be well-prepared before mediation sessions. At that stage, attorneys are in the best position to counsel clients, when they have more time to carefully consider their situation and they are not under pressure to respond to the mediator and the other side. The article concludes with illustrations of two hypothetical cases illustrating how attorneys do and do not promote good client decision-making.
Law school faculty who want their graduates to promote clients’ self-determination in mediation should teach students how to do a good job of representing clients in mediation. This also would help students prepare for the NextGen bar exam
The Case for Mediation Representation Clinics and Externships
No full textThis article recommends that law schools offer mediation representation clinics and externship courses to assist self-represented litigants in cases with legally-represented parties. These courses would prepare law students to practice in the modern world. Students would get experience working with real clients, conduct interviews, help clients assess their goals and interests, analyze claims, perform legal research, prepare documents, coordinate with mediators, and negotiate with counterpart attorneys.
The courses would address the needs of multiple stakeholders including self-represented litigants, law students, law schools, courts, attorneys, mediators, and society in general. Law schools would develop these courses in collaboration with many potential stakeholders including courts, administrative agencies, bar associations, legal aid societies, law firm pro bono programs, and mediation organizations in their local area.
The courses would be particularly relevant considering the transition to the NextGen bar exam and a movement in various states to use alternative mechanisms for licensing that would require demonstration of practical skills
Caring for the Caregivers: Reimagining Institutional Recognition of Caregiving Work after the COVID Care Crisis
No full textThe COVID-19 pandemic washed over the already uneven landscape of legal academia with an unrelenting force, hitting the most vulnerable most harshly while leaving others bobbing or churning in the waves, loosening the tethers to the social and institutional structures that had previously supported them. Some of the most devastating losses were unsurprising and indeed played out as had long been feared or predicted in times of crisis. Other harms played out in entirely new ways, creating new scars and obstacles. As we survey the changes brought across this landscape in the pandemic\u27s wake, several emerging themes deserve further scrutiny and attention from the academy.
First, as the quote above laments, many of the pandemic\u27s impacts on academia were not only asymmetrical and inequitable but also often operated with a particularly twisted or cruel logic. Measures meant to protect became shackles, while those who most needed a safety net or support found themselves becoming the safety nets and support of last resort. The negative health and social impacts of the pandemic and related safety measures put in place by institutional actors fell not only unevenly, but even worse, compounded one another and accumulated along and reinforced the lines of marginalization. Many of the perverse incentives embedded within academia were sharpened, further entrenching the disparate impacts and dynamics of hierarchy and power. Finally, the pandemic that began with a bang ended with a whimper, with its aftereffects continuing to ripple through and multiply throughout all levels of academia, though increasingly met with indifference or inaction as the world moved on.
This article aims to provide a snapshot of the COVID-19 pandemic\u27s impacts on caregivers in legal academia, focusing on some of its continuing impacts and implications and lessons we might draw for a more equitable future. It seeks to characterize and explain how the dichotomies, harsh logic and perverse incentives visible in the ways that the pandemic played out impacted academic caregivers and created what we might call a crucible for care work that has led us to a critical point in the social and institutional recognition of care work and caregivers. Applying principles from vulnerability theory, the article argues that we can and must flip this script by re-orienting academic support systems and dynamics around new logics and systems that build and support resilience, innovation, and human potential, rather than require and exploit them. It concludes with a call for dialogue and action, highlighting some of the opportunities and pathways we might pursue to achieve such goals during this pivotal moment of possibility and change
Using Intellectual Property to Regulate Artificial Intelligence
Get PDFThis Article examines the complex relationship between intellectual property (“IP”) rights and the regulation of artificial intelligence (“AI”). It advances two primary claims: First, while IP plays a role in guiding innovative behaviors in AI development, it does not serve as an effective mechanism for direct regulation of AI. This claim is based on the observation that IP rights, such as patents and copyrights, are primarily designed to incentivize innovation and protect creative works, while lacking the levers necessary to address the broader societal implications of AI technology. The narrow focus of IP rights on rewarding creators makes them ill-suited for managing the more complex ethical, safety, and societal challenges posed by AI systems. Furthermore, it contends that relying on IP for AI regulation could lead to unintended consequences, such as stifling important research or exacerbating existing power imbalances in the tech industry
Resolving the Incompatibility of Claim Accrual and Recovery in Copyright Law
Get PDFUnder Section 507(b) of the Copyright Act, which provides a three-year statute of limitations, courts have typically employed one of two distinct approaches to ascertain when a claim accrues in civil copyright infringement cases. One of these is the “Discovery Accrual Rule,” which provides that the three-year limitation period commences once a plaintiff discovers infringement. The other, the “Injury Accrual Rule,” provides that the three-year limitation period commences once a plaintiff has been harmed through infringement. An incompatibility arises because no section of the Copyright Act prescribes a specific lookback period for recovery. As such, there is an ongoing debate regarding a potential three-year lookback for assessing damages in cases where the Discovery Accrual Rule is applied