My colleague Ralph Anzivino has a helpful new article that explores the fine line between contract law and tort law: The Economic Loss Doctrine: Distinguishing Economic Loss from Non-Economic Loss, 91 Marq. L. Rev. 1081 (2008). As developed by Wisconsin and many other states, the economic loss doctrine indicates that purely economic losses are recoverable in contract, while non-economic losses are recoverable in tort. The difficulty lies in distinguishing economic from non-economic, particularly with respect to property damage resulting from product failure. (Imagine, for instance, a defective garage door opener that causes a garage door to close on the owner’s car.) Continue reading “Economic Loss: Learning From Insurance Law”
Judge Patterson in the Southern District of New York issued his opinion today in the Harry Potter Lexicon case, which involved an attempt by the defendants to convert their very popular website into print form and sell it. J.K. Rowling and the studio behind the Harry Potter films sued, and the court held that the Lexicon was not protected by fair use.
I’ve only had time to skim the decision, but my quick take is that a district court in the same circuit that decided the Seinfeld Aptitude Test case (Castle Rock Entertainment v. Carol Publishing Group, 150 F.3d 132 (2d Cir. 1998)) would have had a hard time finding fair use here. If multiple choice questions based on “Seinfeld” infringe on the show, then encyclopedia entries based on Harry Potter probably do, too. That’s not an endorsement, just a syllogism.
Having spent a good deal of time over the past several years studying all the various nuances of punitive damages law [John J. Kircher & Christine M. Wiseman, Punitive Damages: Law & Practice (2000 & Supp 2008)], questions still remain unanswered: How can a legal fiction like a corporation engage in egregious conduct so as to justify imposition of punitive damages against it? How does one punish and deter a corporate entity.
Most jurisdictions do allow punitive damages to be awarded against business entities for the wrongful conduct of their employees or agents. Some are very liberal, allowing punitives to be awarded against the business simply if the agent’s conduct was sufficient to make the business liable for the compensatory damages occasioned by the act. In others additional proof is required. The principal must direct the agent to perform the egregious act; the principal must subsequently approve that act; or, the agent who performed the act must have been in a “managerial capacity” at the time that act was performed. Obviously, with a corporation, the one doing any of those three things must be a human being.
Imposing punitive damages upon a corporation does not punish or deter the human being who engaged in the egregious conduct, it merely renders such a person anonymous. It is akin to requiring a liability insurer to pay the punitive damages resulting from the wrongful conduct of its insured. But some jurisdictions allow that as well. The life of the law is certainly not logic!
Marquette’s faculty workshop series continued today with a terrific presentation by Joanne Gabrynowicz of the University of Mississippi School of Law. Joanne, who directs the National Center for Remote Sensing, Air, and Space Law, brought us up to speed on the major legal challenges facing space tourism (“informed consent is the issue”) and other persistent difficulties relating to the commercial use of space (e.g., allocation of rights and responsibilities between public and private sectors). Joanne’s blog looks like a great resource for anyone interested in following these issues.
I’m not buying what this article in the U.K. Daily Telegraph seems to be selling:
Employers may stop giving jobs to women because the cost of maternity leave and temp cover is set to double, legal experts have warned . . . .
New rules mean that female staff due to give birth from next month onwards must receive job perks such as paid holiday, childcare vouchers and gym membership for a full year rather than six months.
Companies will be liable for sex discrimination claims if they refuse to give the same benefits to women throughout 12 months of maternity leave.
Paul Secunda takes on Wal-Mart in this new commentary for the Legal Times. Along with coauthors Melissa Hart and Marcia McCormick, he criticizes recent mandatory employee meetings at Wal-Mart that have allegedly pushed employees away from supporting the Democratic presidential nominee. They urge other states to follow the lead of New Jersey in adopting a Freedom from Employer Intimidation Act, which makes it unlawful for any employer to force its employees to attend employer-sponsored meetings whose purpose is to discuss the employer’s opinions on religious and political matters.
In June, the Supreme Court offered its’ latest pronouncement on the right of criminal defendants to represent themselves in court. The Court first recognized this constitutional right in 1975 in Faretta v. California, a case that I like to present in my Criminal Procedure course as one of the few instances in which the Supreme Court has given any real weight to the dignitary interests of criminal defendants (which are usually subordinated in criminal procedure to competing objectives, such as judicial economy and reliable fact-finding). I think the Court was right that it is profoundly demeaning for the state to force a lawyer on an unwilling defendant, and then authorize the lawyer to decide how the defendant’s story will be presented to the jury. (I discussed this point at greater length in this essay a few years ago.) Yet, the Court’s post-Faretta decisions have generally worked to diminish the scope of the right to self-representation, and the most recent (Indiana v. Edwards, 128 S.Ct. 2379 (2008)) is no exception. Continue reading “Edwards and Erosion of the Defendant’s Right to Self-Represent”
So says a wonderfully titled post on Prawfsblog by Matt Brodie. The point is that much of our political discourse is given over to charges of hypocrisy. We wrap ourselves into knots to be able to say that those we don’t agree with have been inconsistent. Anyone who even casually follows political blogs has read the hackneyed “pot, meet kettle” so often as to wish to never see or hear it ever again.
Why do we do this? My own view flows from two observations. The first is that our society has altered the former balance between the perceived value of personal authenticity in the sense of following your own lights and the virtue of conforming to a set of standards that originates outside yourself. We have moved toward a greater appreciation of the former. This is not to argue that we have given ourselves over to a radical moral relativism, only that our discourse had shifted in a way that charges of hypocrisy have a particular salience. Continue reading “It’s Hypocrisy All the Way Down”
The techie blogosphere is abuzz with the news that Michigan amended its private investigator licensing laws in May to add “computer forensics” to the list of activities that require a P.I. license in Michigan. This may not sound like big news, but it raises the possibility that MediaSentry, a company that gathers information on peer-to-peer filesharers for use in the RIAA’s lawsuits against online infringers, may be violating the law in several states. Given the general antipathy to the RIAA among the technorati, suddenly a large number of bloggers are interested in the arcane details of P.I. licensing requirements.
But the issues raised by the law go well beyond the RIAA lawsuits, and potentially affect any investigation of online misbehavior. Any lawsuit against an anonymous online individual begins with an attempt to identify that person. Furthermore, the definition of “computer forensics” in the Act is so broad that it includes printing out a web page for use in a lawsuit. Attorneys need to pay attention here too: the Michigan law exempts attorneys, but only if they are “admitted to practice in this state.” And other states have similar laws. So do you need a P.I. license or a bar admission in all 50 states before you can sue that defamatory blog poster?
As a frequent critic of the federal sentencing guidelines (see, e.g., my post from Monday), my readers–yeah, both of them–often assume that I dislike sentencing guidelines in general. To the contrary, I think that sentencing guidelines remain a good idea and have worked quite well in many states (not in Wisconsin, unfortunately, but I will leave that post for another day). The problem with the federal sentencing system is not that it has guidelines, but that it has bad guidelines. Continue reading “Federal Sentencing Guidelines Still Need Fundamental Reform”
Buoyed by a rising tide in California in general and Southern California in particular, U.S. unionization levels rose substantially this year, defying a decades-long trend of decline, according to a report by UCLA’s Institute for Research on Labor and Employment.
“The State of the Unions in 2008: A Profile of Union Membership in Los Angeles, California and the Nation” shows unionization rates nationwide rising half a percentage point over the 2007 level, to 12.6 percent of all U.S. civilian workers in 2008. The rate rose one-tenth of a percentage point between 2006 and 2007. Prior to that, the last time U.S. unionization rates registered an increase was in 1979.
Law deans, faculty, and of course students obsess a great deal over the rankings put out annually by the US News and World Report. Some like the rankings, and some hate them. Some find them important, while others dismiss them. Some propose improvements, while others suggest alternatives. Some join anti-US News letter-writing campaigns or even try to organize anti-US News boycotts (nothwithstanding that a concerted boycott of US News would seem to be an antitrust violation, given that horizontal group boycotts are per se violations of section 1 of the Sherman Act under the Supreme Court’s decisions in NYNEX and Klor’s).
But whatever one might think about the US News’s rankings, there can be no doubt that they evoke strong feelings, as attested to most recently by the many reactions in the legal blogosphere to this story on the rankings in last week’s Wall Street Journal. Because of the high level of interest in them, the rankings are a favorite (and possibly the overall most frequently written on) theme of law faculty blogging. Indeed, it almost seems as though a blogger who has yet to opine on the rankings subject cannot be taken seriously. So, lest I be thought an unserious blogger, here is a suggestion for how the US News’s law school rankings might be improved or replaced that has largely, though not entirely, been overlooked. (After drafting this blog entry I did a Google “preemption check” and noticed that a recent comment on the Moneylaw blog makes a suggestion that is similar to mine, and a somewhat more extended treatment is offered by Andrew Morris and Bill Henderson in a recent paper.)
The basic idea is this: why not use bar exam scores as a way to rank law schools? Continue reading “Bar Exam Scores as a Law School Ranking Metric”