Pro Rata or Pro Tanto? Why Equity Dictates the Choice Is Not a “Toss Up” in Private Party CERCLA Settlements

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is extremely complicated. Adding to this complexity is the near impossible task of predicting how settlements will be credited. In most tort cases, courts use the pro tanto approach and give the remaining defendants a dollar-for-dollar credit for settlement amounts received by the plaintiff. However, the trend in CERCLA cases is to forego the pro tanto approach and give the remaining defendants credit for the settling defendants’ proportional, or pro rata, share of the liability. This article examines the two approaches and posits which one is more aligned with the spirit of CERCLA.     

CERCLA Arranger Liability: Town of Islip v. Datre: What Intent is Required?

In Town of Islip v. Datre, the court dismissed a Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) claim based on failure to allege that the defendant knew that the waste it disposed of was hazardous. The court based its decision on language in the Supreme Court's decision in Burlington Northern that indicated that to be liable under CERCLA as one who arranged for disposal, there is a knowledge or intent element. This article questions the Datre decision and argues that the “knowledge” required by the Burlington Northern Court is knowledge that the transaction is a disposal, not knowledge that the waste disposed of is hazardous.     

Defining “Pollutant”: What You Don't Know Can Hurt You

A fundamental question reported in hundreds of court decisions and evaluated every day by claims adjusters is whether a constituent that caused injury and damage is a “pollutant.” If yes, the claim will most often not be covered under general liability, professional, property, umbrella, or other policies because of the applicability of a pollution exclusion. Based upon our review of 200 cases, we determined that in 140, or 70 percent of the time, the constituent was considered a “pollutant” and the insurance claim was denied. In order to have insurance for “irritants” or “pollutants,” an insured must obtain specific pollution coverage.     

U.S. Supreme Court Affirms Potentially Responsible Parties' Right of Action for Cost Recovery

In the wake of the Supreme Court's decision in Aviall—that potentially responsible parties (PRPs) are not permitted to seek contribution from other PRPs under CERCLA unless they have been sued or otherwise settled their CERCLA liability—PRPs and the courts have struggled to identify a remedy for those that voluntarily undertake cleanup of contaminated sites. The Atlantic Research decision resolves a conflict among the circuits and clarifies that PRPs voluntarily incurring cleanup costs pursuant to CERCLA, can maintain an action for cost recovery against other PRPs. The authors discuss the current legal landscape regarding actions for cost recovery as presented in Atlantic Research.     

无权处分场合买卖合同的效力与权利瑕疵担保

《民法典》第597条第1款的主要规范目的是,无权处分不影响买卖合同的效力。只要承认权利人的追认会产生所有权变动的效果,就适宜承认存在效力未定的处分行为。区分负担行为和处分行为,在解释论上具有可取之处。在传统债法上,无权处分致使给付不能的,存在适用债务不履行责任抑或权利瑕疵担保责任的争论,两方面规定在构成要件上有实质区别。我国《民法典》合同编实行救济进路,第三人享有所有权、抵押权等权利致使所有权不能转移的,当事人可以选择适用《民法典》第597条第1款或第612条,两者在违约责任的构成要件和效果上并无实质区别。《民法典》第612条中规定的第三人“享有权利”文义范围较窄,应当对其进行目的论扩张,将第三人“过去享有权利”且主张权利的一些情形纳入其中;即使买受人构成善意取得,仍可认定出卖人违反权利瑕疵担保义务。     

Standards applicable to owners and operators of hazardous waste treatment, storage, and disposal facilities: liability requirements. Environmental Protection Agency. Revised interim final rule

The Environmental Protection Agency is today revising regulations of January 12, 1981, on liability coverage requirements for hazardous waste facility owners or operators. Under these requirements, owners or operators must demonstrate liability coverage for bodily injury and property damage to third parties resulting from facility operations. The major revisions are: addition of the option of a financial test as a means of demonstrating liability coverage to satisfy the requirements; addition of the option of submitting a certificate of insurance as evidence of insurance; and changes in the requirements for the endorsement and certificate. In a future document, EPA will propose to delete two provisions of the January 12, 1981 regulations. These provisions are: the procedure to obtain a variance for liability coverage requirements; and the provision allowing an owner or operator to use State assumption of legal responsibility for liability coverage to satisfy the liability requirements. The January 12, 1981, regulations were issued under an accelerated schedule imposed by a court order. The revisions that are being made today are necessary to eliminate unworkable aspects of the previous regulations, improve their effectiveness, and allow reasonable flexibility in satisfying the requirements.     

Bonnieview v. Woodmont: Court Sorts out Environmental Liability between Homeowners and Developers

Bonnieview Homeowners Ass’n v. Woodmont Builders, LLC,—F. Supp. 2d—, No. Civ. A. 03CV4317(DRD), 2009 WL 2999355 (D.N.J. Sept. 22, 2009), was a suit brought by a homeowners’ association and its individual members against the developers of the property where their homes were located and the municipality. In a recent opinion, the United States District Court for the District of New Jersey made several important rulings applying federal and state environmental statutes and common law. First, the developers were potentially liable to plaintiffs under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), where their soil grading and stockpiling activities distributed previously contaminated soil around the site, which had been used as a fruit orchard. Second, however, the court prohibited plaintiffs from recovering under CERCLA or New Jersey's Spill Compensation and Control Act (Spill Act) because they had not incurred any environmental cleanup costs compensable under the two statutes. Third, plaintiffs were innocent purchasers not subject to CERCLA liability under a 2002 amendment to the statute. A negligence claim against the municipality failed, however, because the municipality owed no duty of care to plaintiffs. The court also assessed plaintiffs' other federal and state statutory and common law claims.     

Judges as satisficers: a law and economics perspective on judicial liability

If judges are guardians of the law, who is to protect the individual member of society from the occasional corrupt, malicious, or reckless judge? The aim of this paper is to provide an answer to the last part of this question, focusing more heavily on cases of negligently inflicted harm. Departing from Simon’s bounded rationality and influenced by other constructs in behavioral law and economics, we view judges as satisficers who make decisions within real-world constraints, such as imperfect information and uncertainty, cognitive limitations and erroneous information. Judges are limited by the commonly observed barriers to the decision making process. Because their goal is not to optimize but to render opinions that are merely satisfactory, they often act as poor agents of their principals’ interests. In this light, it becomes clearer why judges tend to engage in behavior that is “improper”, especially under the circumstances of the currently overloaded judicial caseloads. We first address the differences in judges’ roles in Anglo-American and Continental legal systems. We then present our simple model for judicial misbehavior based on an understanding of judges as “satisficers”. Next we discuss the particularities of judicial errors and introduce a realistic and viable construct of “inexcusable judicial error”. On this basis we evaluate the impact of various incentive schemes on judicial behavior, focusing on the civil liability of judges. We conclude that civil liability for grave judicial errors is the most adequate remedy.     

违反安全保障义务侵权行为的赔偿责任探析

公共场所、宾馆、学校等从事经营活动或其他社会活动的人,违反安全保障义务而给消费者或其他社会大众造成人身、财产损失的行为,是一种不作为侵权行为,经营者必须对此后果承担赔偿责任。经营者承担赔偿责任必须符合一般侵权行为民事责任的构成要件。承担责任的形式可能是直接责任,也可能是补充责任。     

Can Strict Criminal Liability for Responsible Corporate Officers be Justified by the Duty to Use Extraordinary Care?

The responsible corporate officer (RCO) doctrine is, as a formal matter, an instance of strict criminal liability: the government need not prove the defendant’s mens rea in order to obtain a conviction, and the defendant may not escape conviction by proving lack of mens rea. Formal strict liability is sometimes consistent with retributive principles, especially when the strict liability pertains to the grading of an offense. But is strict liability consistent with retributive principles when it pertains, not to grading, but to whether the defendant has crossed the threshold from noncriminal to criminal conduct? In this essay, I review the two most plausible arguments supporting an affirmative answer in the context of the RCO doctrine. First, perhaps this doctrine reflects a rule-like form of negligence, akin to a rule that prohibits selling alcohol to a minor. Second, perhaps this doctrine expresses a duty to use extraordinary care to prevent a harm. Neither argument is persuasive. The first argument, although valid in some circumstances, fails to explain and justify the RCO doctrine. The second argument, a duty to use extraordinary care, is also inadequate. If “extraordinary care” simply means a flexibly applied negligence standard that considers the burdens and benefits of taking a precaution, it is problematic in premising criminal liability on ordinary negligence. If instead it refers to a higher duty or standard of care, it has many possible forms, such as requiring only a very slight deviation from a permissible or justifiable standard of conduct, placing a “thumb” on the scale of the Learned Hand test, identifying an epistemic standard more demanding than a reasonable person test, or recognizing a standard that is insensitive to individual capacities. However, some of these variations present a gratuitous or incoherent understanding of “negligence,” and none of them sufficiently explain and justify the RCO doctrine.     

Deepwater Horizon: The Legal Fallout—The Framework for Liability,Fines, and Penalties for Oil Pollution

On April 20, 2010, an explosion occurred on the Deepwater Horizon offshore drilling unit resulting in the death of eleven workers, and subsequently a continuous and uncontrolled release of crude oil and natural gas from the wellhead for a total of eighty-six days. The Oil Pollution Act of 1990 (OPA) provides a comprehensive liability and compensation scheme by creating strict liability for the responsible party of a vessel or facility from which the oil was released subject to statutory limitations, and very limited applicable defenses. The owner of the Deepwater Horizon and the operator of the Macondo well were designated responsible parties under OPA subjecting them to liability for removal costs and damages. In addition, the Clean Water Act imposes civil and administrative fines on a per-day-per-barrel basis without limitation. Other federal statutes which are used to impose criminal liability are the Migratory Bird Treaty Act, the Endangered Species Act, and the River and Harbors Act of 1899.     

Identifying Successor Corporations Liable under CERCLA and Pursuing Insurance Coverage for That Liability

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) imposes liability well beyond general corporate successor rules. A company can allocate liability to other Potentially Responsible Parties as more culpable, taking advantage of CERCLA's joint and several liability. Often a source of recovery must be teased from a complex corporate history somehow connected to the site. This article examines the basis for attributing environmental liability to entities within a corporate history, before addressing how even a bankrupt or dissolved target may still have insurance that can be tapped. Similarly, CERCLA's strict liability enables recovery from insurance with some connection to either the target's or the company's corporate history, notwithstanding insurers' non-assignment arguments.     

Busting the Myth of the Unavailability of Insurance Rule's Application to Loss Allocation for Pollution Liability Claims Since 1986

Tens of millions of dollars in pollution liability losses have been mistakenly allocated to general liability insurers under the “Unavailability of Insurance” rule in jurisdictions that employ it. Under this rule, a policyholder is not allocated losses for years when they claim that pollution liability was unavailable – mainly after the advent of the 1986 “absolute” pollution exclusion. Recent research has been compiled to include thousands of pages of evidence that by 1986 and to this date there was and has been a viable pollution liability insurance market that would not only underwrite a current year's risks, but also erase any prior pollution insurance coverage gaps by insuring decades of prior acts. This article looks at this rule and the enormous impact it could have on insurers' pollution liability reserves if it continues to be misapplied.     

The Responsibility Gap in Corporate Crime

In many cases of criminality within large corporations, senior management does not commit the operative offense—or conspire or assist in it—but nonetheless bears serious responsibility for the crime. That responsibility can derive from, among other things, management’s role in cultivating corporate culture, in failing to police effectively within the firm, and in accepting lavish compensation for taking the firm’s reins. Criminal law does not include any doctrinal means for transposing that form of responsibility into punishment. Arguments for expanding doctrine—including broadening of the presently narrow “responsible corporate officer” doctrine—so as to authorize such punishment do not fare well under the justificatory demands of criminal law theory. The principal obstacle to such arguments is the large industrial corporation itself, which necessarily entails kinds and degrees of delegation and risk-taking that do not fit well with settled concepts about mens rea and omission liability. Even the most egregious and harmful management failures must be addressed through design and regulation of the corporation rather than imposition of individual criminal liability.     

民事责任的两种规范模式

民事权利义务规范的设定有行为本位和资源本位两种模式,民事责任规范作为民事规范的一种也不例外。传统的学说将民事责任界定为义务的违反显然是行为本位视角的产物,实际上民事责任的产生与当事人的义务违反没有必然联系。民事责任是为保护民事权利或者法益,基于特定的法律事实而对一定的民事主体产生的不利后果。根据民事规范的设定模式,可以把民事责任规范设定模式分为“义务(行为)——责任”模式和“权利(资源)——责任”模式两种,其中前者是行为本位视角的产物,后者是资源本位视角的产物。     

Lender Liability for Environmental Harm: An Argument Against Negligence Based Rules

A firm strictly liable for any harm done will choose an inefficiently low care level if there is a possibility that it goes bankrupt. One possibility to improve care is extending liability to secured lenders, as applied under CERCLA and as currently being discussed in the EU. I compare strict liability, partial liability and vague negligence for lenders in a model with moral hazard and environmental auditing. While auditing is socially valuable only if it increases the firm's care level, the creditor also calculates the reduction in the information rent. Thus, for each possible care level, monitoring is always too high. This effect is aggravated by a vague negligence rule, where the probability that a lender is found liable decreases in the level of auditing. It is demonstrated that partial liability is superior, because the incentive for excessive monitoring is diminished.     

The Special Case of Pesticides: Science and Regulation

Pesticide regulation is a data-intensive activity that is strongly controlled at the federal level. The pesticide law FIFRA controls pesticide sale, use, and disposal. Normal use of pesticides is excluded under RCRA and CERCLA. There are approximately 1,000 pesticide active ingredients with highly diverse functions ranging from insecticides to disinfectants and pheromones (insect sex attractants). There is a relatively large database on many pesticides, which helps reduce uncertainty in risk assessments. Witnesses subject to Daubert should be familiar with the data as well as the computer models designed for pesticides. “Inert” ingredients that are formulated with the pesticide active ingredients can become issues in torts cases. Federal courts have ruled both in favor and against FIFRA preemption, i.e., the ability of a plaintiff to seek relief in a torts case may be blocked by FIFRA. Golf course permitting provides a special land use whereby fundamental pesticide risk and regulatory issues are debated at the level of local planning and zoning commissions.     

Natural Resource Damages for Climate Change—An Idea Whose Time Is Not Yet Come,Part II: Climate Change NRD Claims—Get Coverage

Climate change litigation is in its infancy. As it matures, one type of suit that may emerge is a climate change-based natural resource damages (NRD) claim under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). While it is unlikely that climate change-based NRD claims could succeed under current law, a policyholder sued for such claims should be entitled to a defense under its liability insurance policies. Against the backdrop of some recent climate change lawsuits, this article anticipates insurance industry arguments against coverage for climate change NRD claims, and examines counter arguments in favor of coverage for such claims.     

The Trial of Joseph Dotterweich: The Origins of the “Responsible Corporate Officer” Doctrine

This article analyzes the origins of the “responsible corporate officer” doctrine: the trial of Joseph Dotterweich. That doctrine holds that an officer may be personally liable for the criminal act of a subordinate if the officer was, in some indefinite way, able to prevent the violation. Applying this doctrine, the prosecution of Dotterweich entailed strict liability for a strict liability offense. The underlying offenses—the interstate sale of one misbranded and adulterated drug and one misbranded drug—were said to be strict liability offenses. And then, with respect to Dotterweich as the corporation’s general manager, the government argued that he was strictly liable because he stood in “responsible relation” to the company’s acts. The government never tried to prove that the company, Buffalo Pharmacal, was negligent, nor did it try to prove that Dotterweich was negligent in his supervision of the employees of Buffalo Pharmacal. The prosecutor and judge were candid about this theory throughout the trial, although the judge conceded that it seemed bizarre and unfair. The defense lawyer repeatedly sought to inject what became known throughout the trial as the “question of good faith,” but was circumvented at almost every turn. What would thus seem to be the crux of any criminal trial—the personal fault of the defendant—was carefully shorn from the jury’s consideration. The government’s theory was so at odds with intuitive notions of liability and blame that, as one probes into the case, and looks at the language used in the government’s appellate briefs, imputations of moral fault inevitably crept in. Yet the government was not entitled to make such accusations, as it had pruned moral considerations from the trial. The article argues that the responsible corporate officer doctrine can never enjoy a secure place in our legal system. First, the doctrine is at a minimum in tension with, and often in direct opposition to, basic principles of the criminal law; and second, the doctrine fails, when followed to its logical conclusions, to accord with basic notions of fair play. The article concludes that the responsible corporate officer doctrine is either unnecessary, in cases in which the evidence establishes personal fault, or unjust, in cases in which it creates liability in the absence of personal fault through the unspecified notion of “responsibility.” The Dotterweich case illustrates what is contemplated by the latter possibility, and why it is problematic in any judicial system that purports, in the words of the Model Penal Code, “to safeguard conduct that is without fault from condemnation as criminal.”     

编辑侵权行为研究

编辑未经作者或其他著作权人授意,又无法律上的根据,擅自对著作权作品进行利用或以其他非法手段行使著作权人专有权利的行为就构成侵权。编辑侵权行为主要表现在编辑未经著作权人许可而发表其作品,编辑未经合作作者许可而将与他人合作创作的作品当作自己单独创作的作品发表;编辑违背作者意愿未在作者创作的作品上署名,编辑擅自改变作品的署名及署名方式,编辑利用职务之便违背作者意愿在没有参加创作劳动的作品上署了己名;编辑非法阻止作者修改作品,编辑未经作者许可修改作品;编辑在加工过程中歪曲作品原意,编辑在改编过程中篡改作品内容;编辑侵犯著作权人信息网络传播权的行为;编辑侵犯著作权人获得报酬权的行为等等。编辑侵权要承担相应的民事责任、行政责任,对于严重侵犯著作权和邻接权且对社会公共利益造成了严重损害而构成犯罪后果的还要追究侵权人的刑事责任。欲避免编辑侵权行为发生,就要进一步提升编辑的法制意识和水平,强化编辑的道德素养和责任,加大刊社的规范管理和建设,完善出版的法律制度和政策。