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Why the Ostensible Agency Tort Doctrine is Incoherent
Get PDFOne of the most perplexing areas of current tort law is the ostensible agency tort doctrine, which courts use to determine whether companies should be held liable for the negligence of their independent contractors. In most cases, liability under this doctrine requires proof the plaintiff detrimentally relied on a representation that the contractor was an employee of the defendant. However, in cases involving the negligence of independent contractor emergency room doctors, courts often hold hospitals liable under the ostensible agency tort doctrine without requiring such proof. Why does the doctrine take two inconsistent forms?
This Article argues that the law’s incoherence is a product of Section 429 of the Second Restatement of Torts. Prior to Section 429, courts used two logically distinct theories for holding companies responsible for the negligence of their independent contractors. One theory, known as ostensible agency, was based on the idea of estoppel and required proof that the defendant presented the negligent contractor as its authorized agent or employee plus proof that the tort was caused by the plaintiff’s detrimental reliance on that false appearance of agency. The other theory, called the non-delegable duty doctrine, held companies liable if they failed to fulfill an affirmative duty owed to the plaintiff, stating that companies could not avoid responsibility by delegating their duty to an independent contractor.
Section 429 was based on one case decided under the estoppel-based ostensible agency doctrine and six cases decided under the non-delegable duty doctrine. Unfortunately, the Restatement provision adopted a standard that was not consistent with either doctrine. Instead, Section 429 articulated a test that keyed liability to what the plaintiff thought about the relationship between the defendant and the negligent actor. Courts used this test to create a liberal version of the ostensible agency doctrine that imposed liability on hospitals for the negligence of their independent contractor emergency room doctors without proof of a false representation or detrimental reliance. Those same results could have been justified in an intellectually coherent way under the non-delegable duty doctrine and likely would have been if Section 429 had not confused the law
Misinformed Depositors
Get PDFSocial media enables information to travel faster and wider than ever before, creating endless new possibilities. However, it also has opened the door to misinformation or disinformation, which has already wreaked havoc in many industries, including the financial sector. Given the importance of accurate information in banking stability, false information poses a real risk of causing bank runs that lead to bank failures.
This Article documents the risks that false information poses to the banking industry. It then turns its attention to the regulation of false information in securities markets, which has grappled with the issue for many years. Drawing on this regulation—as well as other sources—this Article sketches out a variety of regulatory and legislative solutions that can be applied to the insured depository institution (IDI) context. These solutions are then evaluated for their feasibility
Revamping Green Securitization Frameworks in the EU
Get PDFSustainable finance and green investments have grown from a trend to a dominant investment strategy throughout asset classes globally, and the EU is no exception. The EU published its Green New Deal and Sustainable Finance Strategy as roadmaps toward a more sustainable and equitable future. The twin reports contain comprehensive plans and initiatives to make sustainable finance more accessible through effective regulation. Stemming from those initiatives were various regulatory frameworks such as the EU Taxonomy, the Corporate Sustainability Reporting Directive, the Sustainable Finance Disclosure Regulation, and the EU Green Bond Standard. The regulations above are aimed at everything from public company disclosure requirements to a comprehensive categorization system for sustainable financial products in the case of the EU Taxonomy. Also relevant to this Note is the EU Securitization Regulation, which serves as a framework for securitized products, disclosures, reporting, and structuring. However, even in the presence of deliberate regulation, headwinds in the securitization market could dampen sustainable finance initiatives. For example, greenwashing, scaling risk, and a lack of uniform measurement are three issues that underscore the complexities and roadblocks of rolling out sustainable securitization more broadly. However, the existing regulatory backdrop, comprising sustainability regulations in financial services, could regulate many aspects of the securitization process, from identification of collateral, structuring transactions, originator and issuer disclosures, and investor protection. Moreover, the existing frameworks will need to be tailored towards securitization, public-private partnerships will need to be adopted, and ratings and oversight processes will need to be tailored towards green securitized products to encompass the securitization process’s complexities adequately
From Alpha to Omegle: \u3cem\u3eA.M. v. Omegle\u3c/em\u3e and the Shift Towards Product Liability for Harm Incurred Online
Get PDFBut for the Internet, many of our interactions with others would be impossible. From socializing to shopping, and, increasingly, working and attending class, the Internet greatly facilitates the ease of our daily lives. However, we frequently neglect to consider that our conduits to the Internet have the potential to lead to harm and injury. When the Internet was in its infancy, and primarily was a repository of information, Congress recognized the threat of continual lawsuits against online entities stemming from the content created by their users. The Communications Decency Act of 1996 arose to mitigate the seemingly Herculean task for online entities to moderate every piece of content posted by their users. Online entities thus became immune from suit in their capacities as publishers of content. Yet, the Internet is no longer solely a repository of information. As much as the Internet has become a nexus of our interactions with others, so too has it become a nexus for sexual predators and their victims. This case note addresses the history of the Communications Decency Act of 1996, how courts have applied Section 230 of the Communications Decency Act, and how clever lawyers have skirted around its protections by instead filing suit against online entities under product liability theories—as was the case in A.M. v. Omegle.com, LLC. The product liability approach, as applied in A.M., is assessed and compared with both traditional claims against online entities as publishers and with federal human trafficking claims. Ultimately, under the present state of the law, the product liability approach best empowers the victims of crimes facilitated by defectively designed apps and websites to seek recourse for their harms
‘Rounding up’ Roundup: One Last Hope for Glyphosate Regulation
Get PDFSince 1974, Bayer’s Roundup remains the world’s most popular herbicide and pervades United States farmland and food production. However, in 2015, Roundup landed centerstage in an international and presently unsettled debate over whether its active ingredient, glyphosate, causes cancer. Environmental groups regularly call for the de-registration of glyphosate due to the plethora of ailments, ecological harm, and weed resistance resulting from glyphosate use. Dissenting experts, however, believe that strict bans would devastate agriculture because of global dependence and the lack of any popular alternatives. Faced with mounting litigation, silence from the highest court, and unreliable regulators, Bayer continues to effect risk-management strategies while the world enacts increasingly more restrictions over glyphosate’s use.
This Note argues that modification of agricultural practices is inevitable and appropriate due to rising concerns around the safety and efficacy of glyphosate-based herbicides, notwithstanding the compound’s carcinogenicity. This Note ultimately calls for long-term deterrence of glyphosate use and the immediate development of alternative herbicides to minimize future industry hardship and protect consumers. As litigation and regulatory petitions still fail to produce results, Congress and state legislatures are the last venues to implement effective and lawful solutions proposed in this Note to one of the most unparalleled toxic torts dilemmas of our lifetime
Juvenile Justice & Diminished Criminal Culpability
Get PDFWhen regulating the bad, albeit illegal, choices made by minors, the law is conflicted. On the one hand, we have a clear national policy to ensure the safety of and to promote the positive development of our young people, yet we simultaneously criminalize minors who make bad choices. This conundrum raises a quintessential jurisprudential flaw in our legal system: We lack a unifying, overarching principle that guides the law’s relationship with minors. In a companion piece, I pose and explore such a unifying principle, which I coin as the “best interest of the minor” standard (“BIMS”). Consequently, this Article applies that standard to a contemporary legal problem that is plaguing our society: the negative effects of the “status” crime of minors in the simple, non-violent possession of marijuana. It posits the thesis that the offense of minors in the simple, non-violent possession of marijuana should be decriminalized. Concurrently, we should redirect our resources to promote abstention, treat the negative impacts of drug abuse, and promote positive, healthy alternatives to drug abuse
Choice of Law Issues in Eleventh Circuit Insurance Cases Arising from \u3cem\u3eLex Loci Contractus\u3c/em\u3e
Get PDFA growing number of cases have emerged from the Eleventh Circuit struggling with the application of lex loci contractus to choice-of-law issues in the insurance context. And while the federal courts continue to struggle, the state courts in the Eleventh Circuit have not yet offered definitive guidance on when to apply lex loci contractus, and when to depart from it. In light of this choice-of-law issue, which can be and often is outcome determinative, this Article offers practical guidance on how policyholders can avoid application of an unfavorable state’s law to their insurance dispute, both before and after litigation commences
