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Liability or No Liability? Promoting Safety by Shifting Accident Losses onto Third Parties
Get PDFIn a recent article, Guerra et al. considered the problem of liability for accidents caused by the activity of robots, proposing a novel liability regime, which they referred to as ‘manufacturer’s residual liability.’ Under this regime, injurers (robot operators) and victims are liable for accidents due to their negligence (hence, they are incentivised to act diligently), and third-party robot manufacturers bear all remaining accident losses, even when the accident is not caused by a defect or malfunction of the robot. In this article, I explore the possibility of extending this framework of liability to other tort scenarios. I refer to this broader application of the rule as ‘third-party residual liability.’ This rule incentivises third parties to make optimal safety investments in environments that are under their control, beyond the incentives obtainable under negligence or products liability law. Third-party residual liability rules will lead to a reduction in the price of safer goods and services offered by the third party, driving unsafe technologies out of the market. Further, thanks to the percolation effect of third-party residual liability, injurers and victims would also be incentivised to limit their activity levels in risky environments. The ideal application of this rule is to accident situations where the risk is affected not only by the behaviour of injurers and victims, but also by external factors that are controlled by a third party
Keeping Children with Their Parents: How U.S. Immigration Law Fails to Uphold the International Right to Family Unity
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Modern Diploma Privilege: A Path Rather Than a Gate
Get PDFThis Article proposes a modern diploma privilege—a licensure framework that allows state licensure authorities to identify what competencies are expected of first-year attorneys, then partner with law schools to assess those competencies. Freed from the format and timing of a bar exam, schools can assess a broader range of competencies over longer time horizons. This will allow the development of law school curricula aimed at preparing students to assist clients rather than to pass the bar exam. The modern diploma privilege is structured as an ongoing partnership between licensure authorities and schools, which means that changes can be easily made to the list of desired competencies and/or the assessment methods. This, in turn, allows for a nimbler licensure mechanism that can quickly adapt to changes in the evolving market for legal services. Part I of this Article explains the actors involved in legal licensure in the United States and reviews and critiques historical licensure methods, with particular emphasis on the bar exam and diploma privilege. Part II contains the broad strokes of the modern diploma privilege proposal, in which state licensure agencies can carefully define the competencies expected of first-year lawyers, then partner with law schools and the practicing bar to develop assessments that accurately measure those competencies over appropriate time horizons. Part III analyzes the ways in which the modern diploma privilege more accurately licenses the right attorneys. It discusses the “ratio of regret,” that is, reducing both the number of competent law graduates who are kept out of the profession and the number of incompetent examinees who manage to pass the bar exam. That Part also addresses the racial disparities in bar exam results and explores how the modern diploma privilege can be part of ameliorating these disparities, as well as addressing suggestions that the bar exam keeps attorney disciplinary actions low
Antitrust Federalism and the Prison-Industrial Complex
Get PDFStates are not only prolific monopolists but also virtually unaccountable. Consider the prison-industrial complex, where states force inmates to pay monopoly prices while suppressing competition for commissary items, phone services, medicine, and more. While the Sherman Act would often ban these types of practices, states are immune from antitrust scrutiny as a matter of federalism—a concept referring to the constitutional division of power between federal and states actors. Because regulating commerce is considered an essential feature of self-rule, the Supreme Court held in Parker v. Brown that antitrust review would impermissibly strip states of their autonomy. In fact, this immunity is absolute because states must answer to voters, who should ostensibly compel states to restrain trade when it would advance the public’s welfare. It is notable, though, that states act much differently than when Parker was decided in 1943. Today, states are relentlessly competing in markets through banks, telecommunication providers, farms, shopping centers, utility companies, and more. These entities are identical to private firms, and can restrain trade just like ordinary monopolists. Given Parker’s purpose of allowing states to pursue public policies, should antitrust’s analysis change when a state has excluded competition in hopes of raising revenue as a conventional monopolist, instead of achieving public objectives as a sovereign? Set against the prison-industrial complex, this Article challenges the modern theory of antitrust federalism, asserting that states should relinquish immunity when acting as market participants. The research refutes the Court’s position of accountability and federalism by demonstrating that a state’s anticompetitive practices: (1) create greater dangers than run-of-the-mill monopolies; (2) dodge important forms of oversight associated with democratic governance; and (3) pose none of Parker’s federalism concerns. In light of the prison-industrial complex and similar industries, this Article finds that states encounter powerful incentives to monopolize markets comprised of marginalized people—such as inmates, immigrants—due to their dearth of economic and political power. Further, due to a state’s legislative authority, the resulting monopolies are more formidable than private ones. If a state’s sovereign acts were shielded, but courts could subject commercial behaviors to antitrust review, it would add an important check on unaccountable state power
Don’t Make Them Martyrs: Empowering Children in the Foster Care & Juvenile Justice Systems Through COVID-19 Vaccine Consenting Rights
Get PDF“Vancouver’s Favourite Country Music Pub,” Single Room Occupancy Hotels, and the Context of International Frameworks: Mapping Vancouver’s Urban Law and Cultural Policy
Get PDFThe Multifaceted Method of Comparative Law and Economics
Get PDFAs initially conceived of in the Eighties, Comparative Law and Economics provided legal scholars a neutral language for the exploration of similarities and differences across legal systems. Its value added is the theoretical rigour of its models and the possibility to engage in a scientific dialogue not hampered by jurisdiction-specific features. At a later stage, comparative approaches became fully embedded in economic research and its empirical methods. Possible synergies with comparative legal research abound, but the organization of academic structures has so far prevented to fully exploit them