Monthly Archives: November 2010

ZS2 Ordinary Post With Categories

John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973).
Michael Froomkin

Michael Froomkin

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I’ve categoried this as “Administrative law”. Tagging isn’t the problem, Categories are. I’ve set this to get 4 paragraphs.

In Hauter, the warranty was express, although the remedy in the event of injury was not stated, so the court never had to reach the question of whether consequential damages could be limited by contract. The reliance issue is one on which an enormous amount of ink has been spilled.

My basic position is that reliance as an independent element should never be relevant where there is privity between the plaintiff and the defendant. The defendant has indicated a willingness to be bound and has been paid to take the risk in question.

There is no stipulation for reliance at the time of the agreement and none should be imposed on the plaintiff after the fact. But those cases in which there is no privity represent a very different kettle of fish indeed. If there is no reliance, it is impossible to see how any linkage can take place between the parties if there is neither an intention to be bound by the defendant nor an intention to bind the defendant by the plaintiff. Continue reading "ZS2 Ordinary Post With Categories"

Test of Tags #2

John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973).

The materials on express warranty show that these warranties are still a possible basis of liability.  Indeed, the manufacturer that wants to give a limited express warranty runs the risk that materialized in Collins: that it is impossible to give a half a loaf. Thus, a warranty which is broader than the law requires (i.e., one that guarantees absolute safety and not simply merchantability) cannot be drafted to exclude consequential damages when the product itself contains no defect.  The Collins decision creates the odd, indeed dangerous, incentive of confining liability to the limits already imposed by law, leaving both manufacturers and consumers the losers.  Expanding coverage has been made too costly.

The materials on express warranty show that these warranties are still a possible basis of liability.  Indeed, the manufacturer that wants to give a limited express warranty runs the risk that materialized in Collins: that it is impossible to give a half a loaf. Thus, a warranty which is broader than the law requires (i.e., one that guarantees absolute safety and not simply merchantability) cannot be drafted to exclude consequential damages when the product itself contains no defect.  The Collins decision creates the odd, indeed dangerous, incentive of confining liability to the limits already imposed by law, leaving both manufacturers and consumers the losers.  Expanding coverage has been made too costly. Continue reading "Test of Tags #2"

Test of Tags #1

John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973).

We’ll test this post for tags.

The materials on express warranty show that these warranties are still a possible basis of liability.  Indeed, the manufacturer that wants to give a limited express warranty runs the risk that materialized in Collins: that it is impossible to give a half a loaf. Thus, a warranty which is broader than the law requires (i.e., one that guarantees absolute safety and not simply merchantability) cannot be drafted to exclude consequential damages when the product itself contains no defect.  The Collins decision creates the odd, indeed dangerous, incentive of confining liability to the limits already imposed by law, leaving both manufacturers and consumers the losers.  Expanding coverage has been made too costly. Continue reading "Test of Tags #1"

THE GOOD, THE BAD AND (PERHAPS) THE UGLY OF A POPULIST COURT

David Strauss, The Modernizing Mission of Judicial Review, 76 U. Chi. L. Rev.  859 (2009).

In a field that crackles with normativity, David Strauss has written an article that provides a genuinely illuminating description of the rationale that underlies many recent Supreme Court decisions.  The Court, he argues, often follows a principle that he describes as “modernizing.”  This consists of two basic elements.  The first is that the Court will apply a sort of strict scrutiny to any statute it regards as “out of step with current popular sentiment” and will invalidate the statute if there is any possible doctrinal ground for doing so.  The second element is that the Court will reconsider its decision if subsequent events show that its conclusion was mistaken and that the statute actually had popular support.  Modernization is rarely invoked as the sole basis for a decision, according to Strauss, but it is not a subconscious tropism or a clandestine connivance either.  Rather, it functions as a supporting principle that appears regularly in the opinion’s rationale.

Strauss supports his observation with an extensive and thoughtful survey of recent Court decisions.  Exhibit A for the first element of modernization are the Court’s Eighth Amendment decisions, specifically Roper v. Simmons (forbidding execution of a minor), Atkins v. Virginia (forbidding execution of a mentally retarded person), and Kennedy v. Louisiana (forbidding execution for the non-lethal rape of a child).  In all these cases, the Court noted that the death penalty was an archaic provision that conflicted with the general tenor of popular opinion.  Exhibit A for the second element of modernization are the 1972 decision in Furman v. Georgia, where the Court declared capital punishment to be cruel and unusual, and the 1976 retrenchments, including Gregg v. Georgia, where the Court upheld the death penalty after 35 states reenacted death penalty statutes.  Other cases that reveal the Court’s modernizing inclinations include Virginia v. U.S., which struck down VMI’s refusal to admit women, Griswold v. Connecticut, and Lawrence v. Texas.  Strauss includes some other cases that push his point a bit too far, such as Moore v. City of East Cleveland, but, generally speaking, he makes his case in a convincing manner. Continue reading "THE GOOD, THE BAD AND (PERHAPS) THE UGLY OF A POPULIST COURT"

The Effect of State and Federal Regulation on Charitable Giving: A Historical Analysis

Kristine S. Knaplund, Charity for the Death Tax? The Impact of Legislation on Charitable Bequests, 45 Gonz. L. Rev. 713 (2010), available at SSRN.

How sturdy is the charitable impulse in the face of federal and state regulation, and would the removal of an estate tax benefit for charitable bequests smother it?  Professor Kristine S. Knaplund of Pepperdine explores this conundrum from a creative and unique perspective in her new article.

The article is a story of American legal history and the persistent charitable drive.  Professor Knaplund points out that charitable bequests have taken their legal knocks before, and still emerged strong.  Her article guides us through a variety of legislative acts, both state and federal, that altered restrictions or incentives to make charitable gifts.  Throughout the article, Professor Knaplund skillfully juxtaposes the federal regimes (largely tax acts) with contemporaneous state law developments. Continue reading "The Effect of State and Federal Regulation on Charitable Giving: A Historical Analysis"

Embattled Delaware

Mark J. Roe, Delaware’s Shrinking Half-Life, 62 Stan. L. Rev.125 (2009).

Poor Delaware.  The small state (45th in population and 49th in geographic size) is the dominant corporate law jurisdiction in the United States, and for decades the academic community has been fascinated with the reasons why.  Initially, scholars portrayed Delaware as the savvy champion of a fierce competition for corporate charters.  The quality of its courts, the richness of its case law, and the responsiveness of its legislature made Delaware the most attractive place to incorporate for US public companies.  When Marcel Kahan and Ehud Kamar’s wrote The Myth of State Competition in Corporate Law, 55 Stan. L. Rev. 679 (2002), the academic community’s view of Delaware had changed:  Delaware was not facing direct competition from other states, but rather winning by default.

More so than any other corporate law scholar, Mark Roe has tried to explain why Delaware still has much to fear.  Roe is well known for his argument, articulated in Delaware’s Politics, 118 Harv. L. Rev. 2491 (2005), that Delaware faces a competitive threat from the possibility of corporate governance regulation by the federal government.  Roe’s analysis, originally written in the wake of the Sarbanes-Oxley Act of 2002, has proven prescient with the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act last July, which introduced a host of significant corporate governance reforms for US public companies, including say-on-pay and proxy access. Continue reading "Embattled Delaware"

Exposing the Regulatory Reform Agenda of Large Law Firms

John Flood, The Re-Landscaping of the Legal Profession: Large Law Firms and Professional Re-Regulation,  59 Current Sociology 2011, available at SSRN.

Lawyers and legal academics, especially in the US, have been very interested in the radical changes taking place to the regulation of the legal profession in England and Wales. These reforms will allow alternative “business structures” for law firms and put in place an independent “super-regulator” overseeing the legal profession. Similar reforms have already been instituted in Australia, generating their own share of interest. Much of the debate has focused on the possibilities of law firms incorporating and publicly listing their shares.  The most strident proponents of the new regulation welcome it as important economic innovation, while critics herald these developments as the collapse of the profession as we know it.

John Flood’s paper, “The Re-Landscaping of the Legal Profession: Large Law Firms and Professional Re-Regulation”, forthcoming in Current Sociology and currently available on SSRN, provides a though-provoking analysis of how large law firms “are undermining, modifying, escaping and ultimately reconstructing professional regulation regimes.”  Flood’s paper was part of an excellent panel at the International Legal Ethics Conference in Stanford in July 2010, which included papers by Judith Maute and Andy Boon that also provided nuanced and sociologically insightful perspectives on the reforms overcoming the English legal profession. Continue reading "Exposing the Regulatory Reform Agenda of Large Law Firms"

Judicial Amendments Treating Citizen and Immigrant Workers Equally . . . Badly: Labor Rights Without Effective Remedies

Ellen Dannin, Hoffman Plastics as Labor Law—Equality at Last for Immigrant Workers?, 44 U.S.F. L. Rev. 393 (2009), available at SSRN.

In Marbury v. Madison, the Supreme Court early on affirmed as “indisputable” the rule “that where there is a legal right, there is also a legal remedy” and “that every right, when withheld, must have a remedy, and every injury its proper redress.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (quoting 3 William Blackstone, Commentaries *23, *109).

But while black letter law so instructs, employee status under the National Labor Relations Act does not always guarantee backpay to victims of unfair labor practices—or so explains Ellen Dannin in her well-documented review of the by now infamous labor-immigration case, Hoffman Plastics Compounds, Inc. v. N.LR.B., 535 U.S. 137 (2002).  Her article, which was part of the University of San Francisco’s symposium issue—The Evolving Definition of the Immigrant Worker: The Intersection Between Employment, Labor, and Human Rights Law—meticulously dissects the language of the Supreme Court’s opinion and the oral argument to show that Hoffman Plastics’ holding—that employers are not liable in backpay for violating the labor law rights of undocumented workers—is not an anomaly. Instead, it fits neatly into an historical trend of judicial amendments to the NLRA. Continue reading "Judicial Amendments Treating Citizen and Immigrant Workers Equally . . . Badly: Labor Rights Without Effective Remedies"