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Examining \u3cem\u3eDeshaney\u3c/em\u3e: Child Abuse, Due Process, and State-Sanctioned Violence
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The Awkward Middle for Automated Vehicles: Liability Attribution Rules When Humans and Computers Share Driving Responsibilities
Get PDFThis Article proposes an architecture of concepts and language for use in a state statute that establishes when a human occupant of an automated vehicle (AV) has contributory negligence for her interactions with a driving automation system. Existing law provides an insufficient basis for addressing the question of liability because a driving automation system intentionally places some burden for safe operation of an AV on a human driver. Without further statutory guidance, leaving resolution to the courts will likely significantly delay legal certainty by creating inefficient and potentially inconsistent results across jurisdictions because of the technological complexity of the area. To provide legal certainty, the approach recommended uses four operational modes: testing, autonomous, supervisory, and conventional. Transition rules for transfer of responsibility from machine to human clarify at what times a computer driver or human driver has primary responsibility for avoiding or mitigating harm. Importantly, specifying clear parameters for a finding of contributory negligence prevents the complexity of machine/human interactions from creating an overbroad liability shield. Such a shield could deprive deserving plaintiffs of appropriate recoveries when a computer driver exhibits behavior that would be negligent if a human driver were to drive in a similar manner
Inconsistencies in State Court Decisions Regarding Public School Financing Are Violating the Constitutional Rights of Citizens: Why the Nevada Court in Shea v. State Should Have Intervened
Get PDFIn 1973, the Supreme Court decided the landmark case, San Antonio Independent School District v. Rodriguez, which held there was no fundamental right to education under the United States Constitution. In the years that have followed Rodriguez, state courts across the country have been left to decide issues related to public school financing. Many plaintiffs in these cases will argue that education is a fundamental right under their state’s constitution and that their respective state’s public school financing structure—one that heavily relies on local property taxes—is unconstitutional because of the discrepancies in the quality of education one will receive in a low poverty versus high poverty school district. Unfortunately, courts across the country frequently reach different and inconsistent conclusions regarding whether education is a fundamental right under their state’s constitution and whether this issue is justiciable.
Recently, the Nevada Supreme Court had to address the issue of adequate public school financing in Shea v. State. While this court held that the issue of public school financing was a nonjusticiable political question, the highest courts in other states have held the opposite. This Comment argues that the court in Shea reached the incorrect conclusion and that the issue of public school financing is justiciable. Additionally, this Comment discusses how, in its holding, the Shea court ignored the fundamental right to education that the Nevada Constitution provides
Fair Value As Process: A Retrospective Reconsideration of Delaware Appraisal
Get PDFThis Article reconsiders the jurisprudence of fair value under Delaware\u27s appraisal remedy, placing recent cases in historical perspective and offering a novel account. Its central observation is that appraisal has developed into a process jurisprudence rather than jurisprudence devoted to the articulation of an entitlement. As such it defies expectations and excites the wrath of academic commentators looking for a more conventional, rights-based evolution. There is a nominal entitlement: the cases at all times announce that shareholder dissenters may pursue going concern value (as opposed to third party sale value) as the measure of fair value. But the Delaware courts have never gone on to articulate workable instructions as to how the entitlement may be realized. They have instead developed a minimalist conceptual framework in which fair value is the sui generis result of case specific factfinding. Doctrinal pronouncements on shareholder entitlements matter much less than does a menu of approved methodologies, a menu that has included measures of third-party sale value during all periods of appraisal\u27s history. The determinative factor is the court\u27s ascertainment of the most reliable approach in the case from among presentations made by the parties drawing on the methodological menu. parties. Shifting perspectives on reliability rather than changing notions about shareholder entitlement have driven the recent course of the remedy\u27s history. It is a jurisprudence about how to decide the instructions of which change over time in response to policy concerns. A range of considerations come to bear--methodological integrity, fairness to shareholders, and the courts\u27 institutional interest in enhancing Delaware\u27s role as the nation\u27s maker and adjudicator of corporate law. Flexibility also is important--law-to-fact applications tend not to bind as precedents, permitting the courts to restrike the balance among the policy concerns as events unfold. Finally, since the decision of Weinberger v. UOP in 1983, there has been a consistent trend as regards the methodological menu: it grows. As the menu becomes more capacious the set of possible outcomes expands, giving the courts more room for maneuver. Concomitantly, the conceptual profile of a dissenting shareholder\u27s entitlement becomes less and less distinct. This is not a problem. Once one takes Delaware\u27s appraisal jurisprudence on its own terms, one cannot say that it fails to accomplish what it sets out to do
Condominium Law: How Florida Must Continue to Adapt in the Wake of the Champlain Towers South Collapse
Get PDFCondominiums represent a large portion of the housing inventory throughout the state of Florida. However, until recently, the maintenance of condominium buildings was left largely unregulated in most areas of the state. Only two counties, Broward and Miami-Dade, had inspection protocols in place, but each was limited in scope and allowed for long periods between inspections. Beyond those regulations, Florida law also gave residents the power to waive reserves even for the most important building components. After the tragic events that took place at Champlain Towers South, the state of Florida made great strides in improving the existing procedures by mandating inspections statewide and by decreasing the time permitted between inspections. The state also restricted the ability to underfund reserves for certain building elements. This Article analyzes the recent changes, where there is still room for improvement, and the shortcomings of the solutions offered here
Is There Force in Force Majeure After COVID-19 or in The Freedom to Negotiate Risk?
Get PDFThis note explores the impact COVID–19 has had on contracting parties who have attempted to implicate force majeure provisions. An inquiry of recent cases reveals varying degrees of success and tension when parties turn towards force majeure text. This Note analyzes common law alternatives, discusses the implication of force majeure clauses as applied under Mexican and American law, highlights the implications that have played out in recent court decisions, and discusses post–pandemic implications that could affect how parties conduct cross–border transactions in the future
Gender Mainstreaming at the European Court of Human Rights: The Need for A Coherent Strategy in Approaching Cases of Violence Against Women and Domestic Violence
Get PDFAny assessment of the jurisprudence of the European Court of Human Right’s (ECtHR) in the field of violence against women and domestic violence must start with an acknowledgement of the ECtHR’s landmark judgments in this area and the positive practical impact those judgments have had upon the protection of women.
However, much progress is still to be made. This article analyses three ECtHR cases from Russia and Georgia, and in so doing, highlights the need for greater transparency, proactivity, and coherency on the part of the Court. It considers in turn: a) the seemingly discriminatory impact of the ECtHR’s approach to applications for interim measures; b) the need for judicial proactivity in bringing a gender perspective and gender mainstreaming to cases brought before the Court; c) the lack of a reasoned and transparent approach with regard to redress. Ultimately, the article puts forward potential improvements which could be made to ensure that the ECtHR monitors its own practice and procedures in order to address the demonstrable need for a coherent gender mainstreaming strategy