CTS Corporation v. Waldburger: Tempest in a Teapot or the End of Toxic Torts As We Know It?

42 USC § 9658 of the Comprehensive Environmental Response, Compensation, and Liability Act imposes a “discovery rule” on state law actions for personal injuries and property damage caused or contributed to by exposure to a hazardous substance, pollutants, or contaminants. In CTS Corporation v. Waldburger, 134 S. Ct. 2175, 2181 (2014), the U.S. Supreme Court ruled that section 9658 does not preempt statutes of repose, which establish absolute limits on the rights of plaintiffs to bring civil actions, notwithstanding any “discovery rule.” This article explores the potential impact of the Court's decision in Waldburger.     

A note on taking account of the automatic death penalty jurors

The California Supreme Court'sHovey opinion identified a separate group of “automatic death penalty” (ADP) persons whose exclusion had been overlooked in previous studies of death qualification. Using data unavailable at the timeHovey was decided, this brief article estimates the effect of excluding this group on the attitudinal skewing and conviction-proneness of death-qualified jurors. It concludes that the impact of excluding the ADPs is negligible.     

Ameron International: Expanding Insurance Recovery for Administrative Environmental Proceedings

In Ameron Int'l Corp. v. Ins. Co. of Pennsylvania, the California Supreme Court issued its long-awaited reconsideration of Foster-Gardner v. National Union Fire Ins. Co. which adopted the minority position that administrative notice letters are not “suits” that trigger a CGL insurer's duty to defend. In an important development for insurers and policyholders alike, Ameron limited Foster-Gardner, holding that an administrative process that resembles a court proceeding is a “suit” insurers must defend. This article surveys the majority rule, Ameron, and Ameron's possible impact in minority rule jurisdictions with Foster-Gardner-like precedent.     

隐私权的判定——“合理隐私期待标准”的确立与适用

隐私权存在与否的判定问题是隐私侵权责任承担的关键所在。而美国联邦最高法院在1967年Katz v.United States案中确立的"合理的隐私期待"标准,在世界多个国家的适用已被证明是比较可行的隐私权的判定方法。我国隐私权司法实践在吸收、借鉴"合理的隐私期待"标准时应明确"私人事实"、"法律规定"、"社会习俗"和"利益平衡"四种隐私期待的客观判断要素,实现判决结果的一致性,及对他人隐私利益最大程度的保护。     

Dolly and Alice

The opinion of the United States Court of Appeals for the Federal Circuit, In re Roslin Institute, rejecting patent claims to mammals cloned from somatic cells, was rendered about a month before the United States Supreme Court''s decision in Alice Corp. v. CLS Bank International. The Alice opinion explicitly sets out the standard for determining whether an invention falls within statutory patentable subject matter. Thus one is thus left to wonder what the Roslin opinion might have looked like had it been decided only a few weeks later, after the Alice decision was published, with the benefit of the Supreme Court''s further direction on patentable subject matter. In this essay I explore whether in hindsight the Alice standard might have dictated a different outcome in Roslin, suggesting how the two-part test articulated by the Supreme Court in Alice might apply to a ‘products of nature’ analysis for cloned mammals. Drawing on that analysis, I then use the Roslin case as a vehicle to highlight certain issues with the Supreme Court''s current subject matter jurisprudence as applied to biotechnology. By juxtaposing Dolly with Alice, it becomes clear that the Supreme Court has revivified a number of dormant biotechnology patent problems in the guise of subject matter analysis.     

The Hermeneutics of the Concept of Misrepresentation: Addressing the Quagmire of Damages and Compensation in Cases of Misrepresentation in Formation of a Contract Under Indian and English Law

In England, fraudulent misrepresentation is governed by English common law and damages are provided under the Tort of Deceit whereas negligent and innocent misrepresentation is governed by the Misrepresentation Act, 1967. In India, fraud is governed by s 17 of the Indian Contract Act, 1872 (ICA) and misrepresentation by s 18 of the ICA. Notably, unlike in England where the remedies for fraud and misrepresentation are provided at separate avenues, in India, the relief to the innocent party in both cases is provided under s 19 of the ICA. This article discusses fraudulent misrepresentation & negligent/innocent misrepresentation and the quantification of damages thereof in contracts under the two legal regimes mentioned above. To that extent, the authors attempt to illustrate certain nuanced differences between the two legal regimes while also highlighting the similarities between English law and Indian law. For the purposes of this article, the authors refer to the Misrepresentation Act, 1967 and the seminal judgments of Derry v Peek, Doyle v Olby, East v Maurer and Smith New Court Securities Ltd. v Scrimgeour Vickers and discuss the “date of transaction rule” as enunciated by Lord Steyn while juxtaposing it with the judgments of the High Court of Delhi, and the Supreme Court of India. In the Indian context, the authors highlight the position of law as is apparent from two recent judgments of the Delhi High Court in NHAI v Pune Sholapur Road Development and Daiichi Sankyo v Malvinder Mohan Singh and Ors and also focus on the judgment of the Supreme Court of India in Avitel Post Stuidoz v HSBC Holdings (Mauritius).

     

“Knowledge and Death Penalty Opinion: The Marshall Hypotheses Revisited.”

This study tests the three hypotheses derived from the written opinion of Justice Thurgood Marshall in Furman v Georgia in 1972. Subjects completed questionnaires at the beginning and the end of the fall a semester. Experimental group subjects were enrolled in a death penalty class, while control group subjects were enrolled in another criminal justice class. The death penalty class was the experimental stimulus. Findings provided strong support for the first and third hypotheses, i.e., subjects were generally lacking in death penalty knowledge before the experimental stimulus, and death penalty proponents who scored “high” on a retribution index did not change their death penalty opinions despite exposure to death penalty knowledge. Marshall’s second hypothesis--that death penalty knowledge and death penalty support were inversely related--was not supported by the data. Two unexpected findings were that death penalty proponents who scored “low” on a retribution index also did not change their death penalty opinions after becoming more informed about the subject, and that death penalty knowledge did not alter subjects’ initial retributive positions. Suggestions for future research are provided.     

Military Veterans, Culpability, and Blame

Recently in Porter v. McCollum, the United States Supreme Court, citing “a long tradition of according leniency to veterans in recognition of their service,” held that a defense lawyer’s failure to present his client’s military service record as mitigating evidence during his sentencing for two murders amounted to ineffective assistance of counsel. The purpose of this Article is to assess, from the just deserts perspective, the grounds to believe that veterans who commit crimes are to be blamed less by the State than offenders without such backgrounds. Two rationales for a differential treatment of military veterans who commit crimes are typically set forth. The Porter Court raised each, stating that we should treat veterans differently “in recognition of” both “their service” and “the intense stress and mental and emotional toll” of combat. The former factor suggests there being a “social contributions” or gratitude-based discount, whereas the latter factor points towards a “mental disturbance” discount. This Article analyzes the two accounts and raises some doubts about both. This Article then argues that a military veteran who commits a crime should not be blamed to the full extent of his blameworthiness, not necessarily because of his mental capacity nor because of his social contribution, but because the State’s hand in producing his criminality undermines its standing to blame him.     

The death penalty for juveniles: Bridging the gap between an evolving standard of decency and legislative policy

In Stanford v. Kentucky (1989), the U.S. Supreme Court held that the practice of executing juveniles who were age 16 or 17 at the time of their crime(s) did not violate the “evolving standards of decency” (ESD) of American society. This ESD determination was based on legislative authorization of this punishment. Although this interpretation of what constitutes an ESD has been controlling in death penalty cases since Gregg v. Georgia (1976), the high court's original conception of an ESD stressed the importance of other factors in its determination (e.g., historical review and empirical knowledge about executions). Because the ESD is a Court-created measure, legislatures are under no constitutional obligation to acknowledge the scope of concerns embodied in the historical genesis of this concept. Nevertheless, in this paper we oppose a juvenile death penalty and argue that legislatures should consider the importance of historical and research utilization components of the ESD concept when debating the validity of a policy regarding the death penalty for juveniles.     

After the First Amendment Fails: The Newsmen's Privilege Hearings of the 1970s

The recent jailing and threatened jailing of journalists seeking to protect confidential sources has prompted Congress to reopen debate on legislation providing journalists with a statutory right of confidentiality. This article explores debates over eighty-six newsmen's privilege bills introduced in the House of Representatives between 1972 and 1975, after the Supreme Court of the United States decided Branzburg v. Hayes. The article identifies the primary policy differences, motives and perspectives of key advocates, and reasons for the failure of any bill to become law. It examines arguments for and against a privilege and the four major areas of policy disputes: the range of protections from absolutist to qualified protections, the problem of defining “journalist,” protection of only confidential information or all newsgathering material, and whether a federal privilege statute should apply to state proceedings. In doing so, the article provides historical context to contemporary legislative debates.     

Unjust Enrichment in the ‘Fairchild Enclave’ International Energy Group Ltd v Zurich Insurance plc

In International Energy Group v Zurich Insurance, the Supreme Court considered the implications of the special rule in Fairchild v Glenhaven Funeral Services Ltd for insurers’ for employers’ liability. The question for the Court was whether, in the light of its earlier decision in Durham v BAI (Run off) Ltd, insurers could be held liable for employees’ mesothelioma claims, even if the employer was not insured throughout the period of employment. The seven Justices unanimously held that insurers’ liability was proportionate to the period of insurance. In reaching that result, the majority recognised that the insurers were entitled to ‘equitable recoupment’ from insured‐employers in respect of periods during which they were uninsured. This note critiques the recoupment right with an unjust enrichment lens.     

Frustration: The mold of judicial philosophy

Abstract

The Framers understood the Constitution to be the fundamental expression of the rule of law over against the arbitrary, intemperate, and unjust “rule of men” that all too frequently existed in the political world, unfortunately both democratic as well as monarchical. Accordingly, the rule of law requires a well functioning political and legal system that includes legislative checks and balances, the separation of power between the President and Congress, an independent judiciary, federalism, etc. What happens when this “Madisonian” constitutional system, designed to express “the deliberate sense of the community,” runs into a Judicial branch that, in effect, claims we live under a Constitution, but the Constitution is what we say it is. Must the Judiciary itself be subject to the rule of law, and the decisions of a constitutional majority, or does their “independence” extend to being independent of the constraints of the rule of law and, thus, decent majority rule? How did the original John Marshall Court answer these questions, and what light do the leading cases and controversies shed on the relationship between the Marshall Court and the Madisonian System? Are we facing a situation of Marshall v. Madison?     

Thirty Years of Social Science in Supreme Court Criminal Cases*

The Supreme Court early took note of extralegal, “social science” materials in Muller v. Oregon (1908), and a half-century later made specific reference to social science authorities in the famous footnote 11 of Brown v. Board of Education (1954). Since Brown, much has been written about the Supreme Court's use of social science research evidence, but there has been little systematic study of that use. Those writing on the subject commonly focus on areas of law such as jury size, where social science has been used, and have generally assumed that social science information has been utilized in Supreme Court decisions with increasing regularity. Surprisingly little is known, however, about either the justices' baseline use of social science authorities, or many other aspects of their uses of social science information. The focus here is on the citation of social science research evidence in a sample of 240 criminal cases decided during the 30 years between the Supreme Court's 1958 and 1987 Terms. The resulting portrait contributes to a fuller understanding of the justices' use of social science materials, and may ultimately help promote more effective utilization of social science research evidence in Supreme Court decisions.     

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.     

Preference for the Diversity Policy Label Versus the Affirmative Action Policy Label

Study 1 assessed associations with the labels “diversity policy” (DP) and “affirmative action policy” (AAP) and perceptions of potential policy components. Student and community participants (N = 143) completed a survey assessing associations with one of the policy labels. Both policies evoked similar associations such as “race/minorities” and “equality/equal opportunity,” but the AAP was more often associated with “bias/inequality/discrimination,” “unfairness,” and “racism/prejudice.” When rating potential policy components, reverse discrimination was considered more likely under the AAP. In Study 2 we explored the evaluation of equivalent policy components associated with different policy labels. Student participants (N = 126) rated the policy labeled as the DP more favorably than the AAP. Both studies suggest more favorable attitudes toward the DP label.     

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.     

Trade Secrecy Injunctions,Disclosure Risks,and eBay's Influence

Historically, intellectual property (IP) owners could rely on injunctive remedies to prevent continued infringement. The Supreme Court's eBay v. MercExchange decision changed this, however. After eBay, patent courts no longer apply presumptions that push the deliberative scales in favor of injunctions (or “property rule” protection). Instead, patent injunctions require a careful four‐factor analysis, where plaintiffs must demonstrate irreparable injury (i.e., that money damages cannot compensate). Without question, eBay has made it harder for patent plaintiffs to secure injunctions, and has led many district courts to consider innovation policy concerns (e.g., the strategic behavior of patent “troll” plaintiffs) in the injunction calculus. By and large, courts’ more deliberative approach to patent injunctions post‐eBay has been viewed as beneficial for the patent system. Over the past decade, eBay’s influence has migrated to other areas of IP. This article offers the first account of eBay’s impact on federal trade secrecy injunctions. Important differences between trade secret law and other areas of IP—for example, the hard‐to‐quantify risk that disclosure poses to trade secret owners—has lessened eBay’s influence on trade secrecy injunctions. This article argues that disclosure risks justify a bifurcated approach to trade secrecy injunctions. That is, in cases involving the dissemination of trade secrets, courts should presume irreparable injury in the injunction calculus. However, in cases involving the unauthorized use of a trade secret—that is, where a defendant builds upon a plaintiff's trade secret but does not disseminate it—courts should not presume irreparable harm and, instead, should apply the eBay framework. As part of this assessment, courts should consider policy concerns related to cumulative innovation and employee mobility.     

美国证据排除规则的衰变及其启示——以Herring v. United States案为主线的考察

2009年1月的Herring v.United States案判决是近年来美国联邦最高法院关于证据排除规则方面影响最大的判决,它确立了＂过失行为所得非法证据不适用证据排除＂的新规则。该判决以其不同以往任何案例的特殊性引发了关于证据排除的存在必要性、适用范围、审查模式等一系列问题的理论探讨和实务争议。以该判决前后美国联邦最高法院的态度转变和学界回应为鉴,我国证据排除规则的确立应定位于阻吓违法行为,以过错原则为判断标准,并配合职务监督方式施行。     

From the Law Reviews

Although Warth v. Seldin is carefully cast in procedural terms, its significance is substantive. The real meaning of the decision is that the U.S. Supreme Court is not prepared to read into the federal constitution a limitation on suburban zoning power like that which the New Jersey Supreme Court read into the state constitution in Mt. Laurel.¹ Warth is, thus, the Court's most recent rebuff of the varied efforts to use the fourteenth amendment as a weapon against the inegalitarian consequences of metropolitan fragmentation.¹ Those who see in the vague language of that amendment a remedy for every social ill are sure to condemn the Court's passivity in the face of that malady. Yet, there is, as Paul Freund once wrote, “a morality of morality.” The mere existence of a social ill does not authorize the courts to prescribe the cure.