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The Case for Nonmutual Privity in Vicarious Liability Relationships: Pushing the Frontiers of the Law of Claim Preclusion
Get PDFThis article sheds light on an evolving area of preclusion law—nonmutual claim preclusion and the related issue of privity between parties to a vicarious liability relationship—that merits scholarly attention and greater doctrinal clarity. To illustrate, if an injured party asserts a negligence claim against a truck driver, and judgment is rendered against the injured party based on a finding of the driver’s nonnegligence, may the driver’s employer invoke claim preclusion or issue preclusion in a subsequent action by the injured party? Are the employer and his employee in privity with each other despite the lack of mutuality? When this fact pattern actually became the subject of a sample multiple-choice question published in 2014 by the National Committee of Bar Examiners, several procedural scholars responded that a plausible case could be made for either of two of the four choices—claim preclusion or issue preclusion. Their various responses reveal a need to provide a measure of coherence to this corner of preclusion law.
These differing doctrinal views raise three significant issues addressed in this article. First, does claim preclusion bar the suit against the truck driver’s employer or only issue preclusion? Second, if the employer can reap the benefits of claim preclusion, is nonmutual claim preclusion available in the first instance or only as a fallback if issue preclusion is unavailable? Third, to the extent that nonmutual claim preclusion is applicable, is it justified doctrinally as an extension of privity to include employee and employer or as an exception to privity?
This Article proposes that adding derivative liability relationships to the recognized categories of substantive legal relationships that “are sometimes collectively referred to as ‘privity’” and applying nonmutual claim preclusion, even where issue preclusion would otherwise have been available, is—and as a matter of policy should be—the next logical step in the evolution of preclusion law. The law of preclusion has evolved progressively beyond the formalist rule of mutuality that traditionally served as the basis for the so-called “narrow and broad exceptions” to the doctrine of collateral estoppel. As a consequence of the erosion of mutuality, a substantial number of American jurisdictions apply those exceptions to claim preclusion by expanding the concept of privity to include vicarious liability relationships
The Peering Predator: Drone Technology Leaves Children Unprotected from Registered Sex Offenders
Get PDFThe increased accessibility of drone technology for private operators frustrates the purpose of existing sex offender legislation. Sex offenders who are intent on committing further unlawful acts may use the vast capabilities of modern drone technology to target children. This Comment explores current restrictions imposed on registered sex offenders and discusses how those restrictions are insufficient to protect children from sex offender recidivism. In order to bridge the gap between sex offender legislation and the rise of private drone use, North Carolina needs new legislation that appropriately limits registered sex offenders from obtaining or using drones for the purpose of harming children
Public Pension Reform and the Takings Clause
Get PDFThis Article seeks to fill the gap left open by previous judicial and scholarly treatment and begin a more robust conversation about the role of the Takings Clause in public pension reform litigation
The Limits of Creativity in Copyright: Digital Manufacturing Files and Lockout Codes
Get PDFAs the distinction between the digital and physical worlds continues to diminish, the necessity to reevaluate the bargain struck by the copyright regime increases in importance. Digitization brings increasingly more aspects of our world into the potential ambit of the copyright system. To understand whether and how the copyright system should apply in an increasingly digital world, it is first necessary to understand doctrinally how current copyright laws apply to new digital works. This Article corrects several errors that have appeared in the literature analyzing copyright law\u27s treatment of 3D printing and other digital manufacturing files. This Article incorporates an advanced technical understanding of digital manufacturing files and applies that understanding to copyright doctrine to clarify misunderstandings. The analysis briefly confirms that digital files created to manufacture creative objects are themselves clearly protected by copyright. On the other hand, and contrary to several assertions in the literature, most files created to manufacture purely utilitarian objects are not copyrightable because they lack a modicum of creativity. The lack of copyright protection for these files calls into question a number of assumptions, including whether they can be protected against even verbatim copying and whether open-source licenses involving these files can efficaciously bind downstream users. If digital manufacturing files of purely utilitarian objects do not enjoy copyright protection, creators may seek to embed additional, ancillary copyrightable material in the files to secure protection. This ancillary material serves as a lock-out code, which tries to prevent what would otherwise be lawful copying. This Article analyzes that phenomenon and discusses potential ways the law may react to it
United States v. Bryant, Federal Habitual Offender Laws, and the Rights of Defendants in Tribal Courts: A Better Solution to Domestic Violence Exists
Get PDF“If you cannot afford an attorney, one will be appointed for you.” Since Miranda v. Arizona, that popularized phrase has widely been regarded as true in the United States. However, because the Bill of Rights does not apply to Native American tribes, defendants in tribal courts are regularly sentenced to imprisonment without the aid of counsel. One of those defendants was Michael Bryant, who has several convictions for domestic assault and was not appointed counsel even though he was indigent and imprisoned.
Domestic assault is a terrible problem in Native American communities. Native American women suffer from domestic violence at higher rates than any other racial group. In an effort to reduce domestic violence in the tribes, Congress criminalized domestic assault by a habitual offender. That crime requires two prior convictions, which can be obtained in tribal courts. However, because the Indian Civil Rights Act (ICRA) does not guarantee the same rights as the United States Constitution, a conviction may be valid in tribal court even though it would have been unconstitutional had it been obtained in state or federal court. That conviction may then be used as a predicate offense for domestic assault by a habitual offender.
In United States v. Bryant, the Supreme Court held that it is permissible to use uncounseled tribal court convictions as predicate offenses. The Court decided the issue, but a sense of injustice remains. It seems backhanded to use uncounseled tribal convictions to prove an element of a federal offense when those same convictions could not be used if they had been obtained in a different court. This Note proposes three solutions. One solution is to amend the Indian Civil Rights Act to make tribal court defendants’ rights coexistant with state or federal court defendants’ rights. Another is to give tribal courts the authority to impose harsher penalties for domestic assault instead of leaving the federal government as the only court system with the ability to impose adequate penalties. A third proposal is to expand the jurisdiction of tribal courts to allow them to prosecute non-members who commit offenses on tribal lands. Each of these solutions preserves the Court’s reasoning in United States v. Bryant while making the process more just for offenders, victims, and the tribes