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Responses to Liability Immunization: Evidence from Medical Devices
Get PDFThe Supreme Court\u27s decision in Riegel v. Medtronic immunized medical device manufacturers from certain types of state product liability claims. However, this immunization applies only when the devices underlying those claims have been approved through the Food and Drug Administration\u27s most rigorous-and costly-review process, premarket approval (PMA). Exploiting this decision, we examine whether manufacturers strategically respond to this new immunity. We find evidence that, following Riegel, approvals for highrisk product categories increase relative to the comparable change for low-risk categories, suggesting that firms are sensitive to the newly immunized risk. We additionally find evidence that physician treatment patterns with respect to medical devices also change, consistent with Riegel shifting liability away from device manufacturers and toward physicians. The analysis provides evidence that sophisticated actors respond to changes in their expected legal liability and that technical legal decisions have important ramifications for the provision of healthcare
The Conflict between the Religious Freedom Restoration Act and Title VII of the Civil Rights Act of 1964
Get PDFA Liability Insurer\u27s Breach of the Duty to Defend and the Controversial Forfeiture of Coverage Defenses
Get PDFFSU Law Focus - 10/12/2020
Get PDFFrom the Dean: FSU Law Trial Team named nation’s 15th best in Fordham University School of Law’s annual ranking; FSU BLSA Hosts Discussion on Police; Alum Profile: Scott A. Remington (’97); Student Profile: 3L Mylena Chin-Seehttps://ir.law.fsu.edu/fsu-law-focus/1135/thumbnail.jp
FSU Law Focus - 07/10/2020
Get PDFFrom the Dean: Bar exam support; Ziegler Provides International Expertise on U.S. Supreme Court Abortion Case; Student Profile: 2020 Grad Tiffany Osei-Owusu; Student Profile: 2020 Grad Douglas Reddickhttps://ir.law.fsu.edu/fsu-law-focus/1182/thumbnail.jp
FSU Law Focus - 08/07/2020
Get PDFFrom the Dean: 1L Pre-Elevate Pre-Orientation programming; Alum Profile: Jasmyne N. Henderson (’15); Student Profile: 2020 Grad Collin Phillips; Student Profile: 2020 Grad Felicia Warrenhttps://ir.law.fsu.edu/fsu-law-focus/1211/thumbnail.jp
Climate Triage: A Resources Trust to Address Inequality in a Climate-Changed World
Get PDFGlobal climate change poses an existential threat to human civilization because it disrupts the supply of natural resources that provide basic life staples-water, food, and energy. If humankind is unable to adapt to a less abundant and less predictable supply of resources, then the effective scarcity will, as it often has in human history, lead to conflict. There is a chance, if greenhouse gas emissions can be sufficiently reduced to avoid the most serious consequences of climate change, that efficiency and sharing measures can make up for climate-induced shortfalls. Natural resources are not generally managed or consumed very efficiently, so large savings in production and consumption are possible. And humankind has demonstrated a surprising capacity to organize and cooperate to efficiently share resources, even in times of scarcity.
However, a formidable obstacle stands in the way of such arrangements: economic inequality. Organic cooperation requires, if not homogeneity, a certain capacity to recognize and coalesce around a group interest. Sharp economic divisions are an anathema to such group coherence. This Article proposes a form of climate triage, a prospective equalizing measure to address natural resource shortages before economic inequality can sabotage cooperation: the creation of a resources trust to act as a supplier of last resort in case of climate-induced scarcity. A resources trust could be chartered at the federal, state, or regional level, and would acquire rights, options, and other assets required to step in and supply basic life staples to ensure reasonable access for the vast majority of individuals in a chartering jurisdiction. Without such an assurance, the pressure to take resources by force and to hoard them could be overwhelming. Hoarding would be the worst possible outcome, as it is grossly inefficient, unjust, and worst of all, self-reinforcing. The nature of hoarding is such that it exacerbates itself, creating ever stronger incentives to hoard, so that once started, it becomes extremely difficult to stop. Hoarding in a climate-changed future would introduce a new, and potentially dystopic form of inequality, one with the potential for creating unrest
Normative Ignorance: A Critical Connection between the Insanity and Mistake of Law Defenses
Get PDFThis Article falls into three general parts. The first part starts with an important question: is the insanity defense constitutionally required? The United States Supreme Court is currently considering this question in the case of Kahler v. Kansas. The Court actually refused to answer this question in 2012 when it denied certiorari to an appeal brought by John Joseph Delling, a severely mentally ill defendant who was sentenced to life in prison three years earlier for two murders. Delling never had the opportunity to plead the insanity defense because his home state, Idaho, had abolished it in 1982. By depriving Delling of the right to plead insanity, Idaho violated Delling\u27s Fourteenth Amendment right to due process and his Eighth Amendment right against cruel and unusual punishment. Naturally, the same is true for many other mentally ill and disabled defendants who have been prosecuted in Idaho and in the other three states that have abolished the insanity defense: Kansas, Montana, and Utah. The second general part of this Article notes an insight that I stumbled upon in the course of researching the first part: the insanity defense and the mistake of law defense both require ignorance of the law, what I refer to as normative ignorance. Indeed, normative ignorance is what makes both of these defenses exculpatory in the first place. Given this critical connection, there is a way for Idaho, Kansas, Montana, and Utah to resume compliance with the Constitution. Instead of reinstating the insanity defense per se, which might be politically unpopular, they should just broaden their mistake of law defense to include normative ignorance caused by cognitive incapacity that is itself caused by mental illness or disability. Still, this Article is not merely directed at these four western states. It is directed at the other forty-six states as well. Because they already have an insanity defense, they need not incorporate it into their mistake of law defense. But in the third general part, I will argue that they should still expand their mistake of law defense to cover defendants who either lack a reasonable opportunity to learn the law or reasonably but mistakenly infer from widely accepted norms or ethics that their conduct is lawful
The New Maternity
Get PDFConstitutional law has long assumed that mothers andfathers are fundamentally different. Maternity, that law posits, is certain, obvious, and monolithic - consolidated in an easily identifiable person who is at once a biological, social, and legal parent. Paternity, in contrast, is construed as uncertain, nonobvious, relative, and often unclear. Over time, constitutional law has grown more insistent about the obviousness of motherhood. It also has cemented its idea of maternity into a fundamental principle of sex equality law that applies in settings - like transgender rights - that have nothing to do with certain mothers and uncertain fathers.
Constitutional law\u27s logic of maternal certainty and paternal uncertainty invites criticism for many reasons. It channels the notion that pregnant women are presumptive mothers. It perpetuates questionable stereotypes about mothers and fathers. It determines who can be a parent and how he, she, or they ought to parent. It is in serious tension with constitutional law\u27s disestablishment idea. For all of these reasons, constitutional maternity warrants reform, and one promising pathway of reform is family law\u27s less regressive and more multidimensional vision of motherhood.
Never as uncomplicated as the Supreme Court has assumed, maternity has become considerably more complex in light of the new forms of kinship enabled by alternative reproduction and its legal accommodation. During the exact time that the Supreme Court has insisted that women and men are inherently different because of maternal certainty and paternal uncertainty, state family law has painted a more complicated picture. Maternity, that picture suggests, often is uncertain and nonobvious. It often is relative. Like paternity, it often is a matter of opinion - judicial opinion. Most remarkably, state family law has shown that maternity is all of these things by relying on the same body of federal constitutional doctrine that insists that mothers and fathers are fundamentally different - and fundamentally different because mothers, unlike fathers, are basic, singular, and monolithic.
This Article argues that progressive advances surrounding the new maternity ought to unsettle regressive tendencies surrounding constitutional maternity. These regressive tendencies touch and burden many: from unmarried fathers and transgender individuals to nonbiological and biological mothers. This Article imagines what the new maternity emerging from family law would mean for constitutional law. The idea that the new maternity could unsettle constitutional maternity is not necessarily radical - that project has been unfolding in state courts for years. The consolidation of the new maternity in constitutional law, however, could have meaningful consequences both within and beyond the law of parenthood, destabilizing everything from parentage regimes that rest on the notion of essential biological difference to the argument that transgender discrimination is not illegal because sex is not a stereotype.
[P]ater semper incertus est. [M]ater certissima est. ([T]he father is always uncertain. [The] mother is very certain.) - Roman law of parentage
Maternity is a matter offact. Paternity is a matter of opinion. - American proverb
[M]aternity is never uncertain. - Gossett v. Ullendorff
We really have no definition of mother in our lawbooks .... Mother was believed to have been so basic that no definition was deemed necessary. -Judge Marianne O. Battan
Companies as Commodities
Get PDFLike copper, corn, or crude oil, companies increasingly trade like commodities. Some investors-certain holders of debt, activist shareholders, and controlling shareholders, especially private equity funds-are focused solely on returns. In practice, this means that they care about the fate of the companies in which they invest no more than they care about the fate of any tonne of copper, bushel of corn, or oil barrel they happen to trade. These investors are so immune to reputational concerns that they will even prefer that the companies in which they invest fail if failure maximizes their return on investment. This Article identifies and labels these going-concern-neutral ( GCN ) investors. By virtue of their singular focus on return on investment, GCN investors are not bound by the same norms and relationships as other stakeholders in a company. This disconnect allows GCN investors to transfer an outsized share of company value to themselves. As a result, GCN investing typically increases the costs and risk faced by other stakeholders. This Article then uses property theory to understand GCN investing and the conflicts in the use of company value that it creates. Although it is contested whether GCN investors are properly understood as true owners of firms and their assets, accepting that premise to leverage the tools of property theory leads to significant insights. Analyzing these investors\u27 ownership claims through an exclusion framework reveals unseen nuances in the relationships between GCN investors and other stakeholders. Next, four property-law concepts-the right to destroy, waste, nuisance, and the tragedy of the commons-provide a rich source of analogies. These analogies reveal that the law has long used a number of so-called governancer ules to manage property where there are several competing users. These rules restrict the rights of owners in order to address externalities and to promote welfare maximization. Although companies have been commoditized into mere property, the governance rules that restrict property ownership in other contexts do not yet apply to ownership of companies. It is time to consider interventions that would align the benefits and burdens of ownership of commoditized companies with ownership of other assets