8353 research outputs found
Sort by
Equity Will Not Enjoin a Libel : Well, Actually, Yes, It Will
Get PDFThe First Amendment prohibits prior restraints on speech. Indeed, prior restraints are the most serious and the least tolerable infringements on First Amendment rights. Because of this, for nearly 200 years, courts stood by the maxim that equity will not enjoin a libel ; traditionally, money damages were the only remedy available to a defamed plaintiff. However, there is a modern trend among some state and federal courts allowing the issuance of a narrow, permanent injunction against statements that have been adjudicated defamatory.
In December 2015, the Seventh Circuit Court of Appeals in its decision McCarthy vs. Fuller became the second circuit court to permit a district court to enter such an injunction. The Supreme Court has never answered the question of whether the First Amendment forbids the issuance of an injunction against defamation, but courts ought to realize that each time a permanent injunction against defamation is granted in favor of one plaintiff, everyone’s constitutional right to free speech is chilled and eroded
A Ticket to Ride? Not so Fast: Members-Only Collective Bargaining as a Possible State Response to a Judicially Recognized Right to Work
Get PDFCausation, Counterfactuals and Probabilities in Philosophy and Legal Thinking
Get PDFSince the function of causation is to recount and explain observed phenomena in order to make a judgment on civil liability, promoting a purely legal conception of causation appears to be problematic. The purpose of this contribution is to show that the various theories of causation found in legal thinking are, in many respects, the extension of philosophical developments. Therefore, two points will be made. The first part of this paper will present the three main theories that are discussed by contemporary philosophers. The second part will show how philosophical accounts are present in legal thinking. This part will deal with three major legal theories: the theories based on the counterfactual approach of causation, the theories based on the covering law model and the probabilistic account of causation in the law
Campus Sexual Misconduct As Sexual Harassment: A Defense Of The DOE
No full textThis article explains and defends the Department of Education’s campaign against sexual misconduct on college campuses. It does so because DOE has inexplicably failed to make clear that their goal is to protect women from the intimidating and hostile environment that results when men routinely use women sexually, without regard to whether women consent to the sexual activity. That basic point, that schools are policing harassing and intimidating behavior, not necessarily rape, has been lost on both courts and commentators. Boorish, entitled, sexual behavior that stops well short of rape, if pervasive enough, has been actionable as sexual harassment for decades. The failure to understand the theory of university regulation is problematic not only because it leads courts to ask the wrong questions when reviewing university tribunals, but also because it blinds both courts and commentators to the hard questions that follow from a theory of sexual harassment. First, evidence from both sides in cases of college sexual misconduct is likely to lack credibility and critical detail. Reasonable minds will differ on whether the complainant’s or the accused’s story is more accurate. What should college tribunals do in close cases, allow for findings of liability, as is permitted by the civil law of discrimination (and harassment), or require more proof, as is required by the criminal law and some college codes of conduct? Second, while many women on college campuses feel insulted and demeaned by the culture of male sexual entitlement, most women - by their own admission - are probably not being irreparably injured. If DOE’s policy is to be justified it is probably not on grounds that women are so severely hurt by men’s sense of their own sexual entitlement, but because that sense of entitlement undermines the norms of respect, civility and equality that university’s routinely enforce in other contexts. Is it worth curtailing men’s (entitled sense of) sexual freedom to enforce those norms
Economic Analysis of Liability Apportionment Among Multiple Tortfeasors: A Survey, and Perspectives in Large-Scale Risks Management
Get PDFThe economic analysis of civil liability aims to demonstrate how the civil liability system can be set to provide the potential injurers with optimal incentives to regulate the level of risk they bear. However, despite a wide range of applications, there are few studies on the apportionment of liability between several tortfeasors. In this article, we especially focus on the case of an industrial activity involving a firm, whose activity is potentially harmful for the society, and one of its input providers. They both have an impact on the level of risk through an effort in care and quality. After highlighting the originality of our contribution within this literature, we propose an efficient sharing rule. We demonstrate that this rule of apportionment depends on the relative degree of solvency of the agents and, more importantly, it crucially depends on the market relationship that links the two contributors; thus calling for a collaboration between the competition agency, and the legislatures and courts
Why the Supreme Court Should Use \u3cem\u3eAriosa v. Sequenom\u3c/em\u3e to Provide Further Guidance on U.S.C. § 101 Patent Eligibility
Get PDF35 U.S.C. § 101 provides patent protection to “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” The Supreme Court previously concluded that Congress intended patentable subject matter to “include anything under the sun that is made by man.” Nevertheless, over the past five years the U.S. Supreme Court has made a series of decisions that narrowed the scope of subject matter eligible for patent protection.
In Mayo the court held that correlations between the concentrations of a metabolite in the blood and the concentration of a drug are not patent eligible because such correlations are “laws of nature.” In Alice the Court not only limited the patent eligibility of computer-implemented methods and systems, but it articulated that the “Mayo framework” should be used in all cases in which the Court had to decide whether some category of technological innovation was inside or outside the scope of the patent system.
As a result of the overly broad, sweeping decisions made by the Supreme Court over the past five years, many important inventions that otherwise satisfy all statutory requirements for patent eligibility are no longer receiving proper patent protection. This paper discusses the context and implications of the holdings of Chakrabarty, Diehr, Bilski, Mayo, Myriad, and Alice, and it uses the facts and posture of Ariosa to illustrate that patent protection is being denied to remarkable inventions based on the newly created judicial exceptions to patent eligibility.
This paper concludes by proposing that since judicial decisions rely on the facts which led to the dispute, judicially created exceptions to 35 U.S.C. § 101 should be narrowly applied to one or more classes in the Cooperative Patent Classification System (CPC). Because patents in the same class have similar technical features, the application of a judicial exception to patents in the same or similar classes would limit the possibility of unanticipated consequences for inventions in various fields that fall under the broad application of exceptions based on specific facts
Force-Placed Insurance: The Lending Industry\u27s Dirty Little Secret
Get PDFForce-placed insurance, also called lender-placed insurance, is the insurance policy mortgage lenders obtain on behalf of borrowers when borrowers fail to maintain hazard insurance on their homes. Although the possibility of force-placed insurance is contemplated by mortgage contracts, the policies often provide little coverage and are much costlier than insurance policies acquired on the open market. Lenders obtain the policies at unfairly high prices and sometimes receive kickbacks from the force-placed insurance companies, while borrowers alone bear the burden of paying for them. As such, lenders have no incentive to obtain force-placed insurance at fair prices with adequate coverage. The dubious force-placed insurance practices garnered attention after the Great Recession when many borrowers lost their homes, sometimes as a result of exorbitant force-placed insurance policies. Congress sought to remedy some of the practices through the Dodd-Frank Wall Street Reform and Consumer Protection Act. This Note explores the issues with force-placed insurance practices and suggests additional regulations that should be implemented to further police the force-placed insurance industry
An Arm and a Leg: Paying for Helicopter Air Ambulances
No full textAn increase in Medicare reimbursement rates in 2002 caused the number of helicopter air ambulances in the United States to increase threefold. The vast majority of air ambulance flights are ultimately paid for through Medicare or private insurance reimbursement, although the patient often remains legally responsible for the cost of a flight. Average costs for helicopter air ambulance (HEMS) operators have increased much more rapidly than the reimbursement rate, mostly due to low utilization of the helicopters. New safety requirements imposed by the FAA, after a ten-year period of much higher accident rates for helicopter air ambulances than for the rest of helicopter aviation, have only partially brought HEMS accident rates to an acceptable level. To assess arguments for adjusting reimbursement rates and FAA safety rides, one must understand the different types of missions that helicopter air ambulances fly, the kinds of helicopters available, labor markets for the necessary personnel, the economics of helicopter ambulance operation, and the data on fixed and variable costs. Several policy options exist for resolving the funding controversy. The best is to keep the existing Medicare reimbursement formula, expecting private insurance to continue to model their policies on Medicare. This will encourage further consolidation and shrinkage of the fleet to a more sustainable level. State and local governments can support noncompensatory HEMS operations in areas where population density is insufficient to support breakeven flight frequencies. The FAA should complete the task of promoting safety by requiring autopilots on all HEMS aircraft, collecting complete safety data, and abandoning the position that air ambulance operators are airlines, which interferes with state health care regulation
Sexual Advance Directives
Get PDFCan one consent to sex in advance? Scholars have neglected the temporal dimension of sexual consent, and this theoretical gap has significant practical implications. With the aging of the population, more and more people will be living for extended periods of time with cognitive impairments that deprive them of the legal capacity to consent to sex. However, they may still manifest sexual desire, so consenting prospectively to sex in this context serves several purposes. These include protecting long-term sexual partners from prosecution by the state, ensuring sexually fulfilled lives for their future disabled selves, or preserving important sexual identities or relationships. The law currently provides a device for prospective decision-making in the face of incapacity: the advance directive. The central claim of this Article is that the law should recognize sexual advance directives. In other words, people facing both chronic conditions that threaten their legal capacity to make decisions and institutional care that threatens sexual self-determination should be able to consent prospectively to sex or empower an agent to make decisions about sex on their behalf. To justify this claim, the Article introduces a novel theory of sexual consent—the consensus of consents—that diffuses the longstanding philosophical debates over whether advance directives should be legally enforceable. With this normative foundation, the Article then draws on insights from criminal law, fiduciary law, and the law of wills to fashion a workable regime of sexual advance directives that adequately protects individuals from the risk of sexual abuse