Law Claims Research Articles

An Immodest Proposal: How the Kansas Supreme Court Can Unify the Uniform Trade Secret Act's Preemption of Common Law Claims?

An Immodest Proposal: How the Kansas Supreme Court Can Unify the Uniform Trade Secret Act's Preemption of Common Law Claims?

Further Erosion of State Consumer Protection Remedies for U.S. Telecommunications: Flawed Federal Preemption Under At&T Mobility v. Concepcion

Further Erosion of State Consumer Protection Remedies for U.S. Telecommunications: Flawed Federal Preemption Under At&T Mobility v. Concepcion

Table of Contents

Abstract Cover Story Ensure successful collaborations across campus units Develop cross‐campus relationships to encourage successful collaboration The bottom line: Build a culture of collaboration Briefs Yale didn't protect women, lawsuit says Campus neighbors request more policing Encourage students to edit social media Warn students about ‘sugar daddies’ Assessment Advice Study programming impact on retention Free Speech Know when to discipline students for the online speech Take a closer look at recent free‐speech cases Assessment Improve planning, performance by assessing your unit Follow assessment template Managing Your Office Develop staff members' skills Resources Free program teaches money management Website helps students with allergies Winning video may provide ideas You Be The Judge Were professor's comments to student sexual harassment? Law & Campus CAMPUS SAFETY Students claim police officers used excessive force SUSPENSION Student suspended for conduct, not her disability SEXUAL HARASSMENT One incident not sufficient for tenured prof's termination ATHLETICS University, softball players agree on ways to address discrimination Leaders & Innovators CHRIS GRACE, VP FOR STUDENT DEVELOPMENT, UNIVERSITY PLANNING & IT, BIOLA UNIVERSITY Gain perspective by integrating various responsibilities Word of Advice Make time to listen, connect

Book Review: Jurisdiction and Judgments in Relation to EU Competition Law Claims, by Mihail Danov. (Hart Publishing, 2011)

Book Review: <i>Jurisdiction and Judgments in Relation to EU Competition Law Claims</i>, by Mihail Danov. (Hart Publishing, 2011)

U.S. Supreme Court Eliminates Federal Nuisance Law as a Vehicle to Force Greenhouse Gas Reductions, but Sets Stage for Further Debate as to Viability of State Nuisance Law Claims

The Supreme Court's long-awaited decision in American Electric Power Co., Inc. v. Connecticut did not firmly close the door on future greenhouse gas litigation. Rather, it set the stage for what will likely be a far more complex debate over the role of state common law in the future regulation of GHG emissions. The focus is now turned to state law, and whether Congress has, in promulgating the Clean Air Act, preempted state nuisance claims.

The Inevitability of Moral Evaluation*

AbstractAccording to contemporary legal positivism, law claims to create obligations. In order for law to be able to create obligations, it must be capable of having authority. Legal positivism claims that for law to be capable of having authority, it only has to meet non‐moral or non‐normative conditions of authority. In this paper it is argued that law can only be capable of having authority if it also meets certain normative conditions. But if something must meet certain normative conditions in order to be capable of having authority and if it must be capable of having authority in order to be law, then it is only law if it is conceivable that it meets these normative conditions and this can only be ascertained by means of an evaluation. Therefore, legal positivism's claim that determining what the law is does not necessarily, or conceptually, depend on moral or other evaluative considerations (the separation thesis) is incompatible with its claim that law must be able to create obligations. Further, an analysis of Hart's concept of law shows that it is not only possible that the identification of the law depends on moral evaluation, as Hart claims, but that it is conceptually necessary that it does.

The Construction of Car Insurance Business Franchise Model

Franchise, as the name suggests, is the limit. According to the conditions of the insurance ,the insured should be responsible for the amount of the loss. Because the franchise can eliminate many small claim, and can reduce the premium. Franchise is widely used in the property, health and car insurance. In recent years, with the increasing number of cars, the number of traffic accidents, more and more, accompanied by the insurance market is also maturing. In the traffic accident is the role played by the insurance can not be ignored, and in the prevention of traffic accidents on the insurance companies also have their own role - deductibles. Deductibles allow car drivers to pay more attention to traffic laws, thereby reducing the occurrence of small incidents. The establishment of the quota-free profit is to reduce claims cost insurance companies an important tool. However, the deductible value of the determination is caused by the strong reflection of the community, but also increased the insurance company and the conflict between clients. This article through to one insurance company three years of the data and found that the claim, and statistical law claims its three-year claims the results. But at the same time, through the establishment of mathematical formula, get a franchise values.

On the Nature of Law: Philosophical Anarchism and Law's Claim to Legitimate Authority

This paper is part of a larger project in which I attempt to elucidate the nature of law by way of philosophical anarchism. The central claim of my approach to general jurisprudence is that approaching the fundamental issues in legal philosophy through the lens of philosophical anarchism (the proper normative response to the question of political obligation) is essential for an adequate understanding of the nature of law. In this paper, I assume that all attempts to ground a general obligation to obey the outcome of the political process fail. Contra Robert Paul Wolff, this is not an a priori claim, but a posteriori, that even if it is possible to have a moral obligation to obey political superiors, almost all people in all states throughout history never had such obligation. With this assumption in hand, I consider one important issue regarding the nature of law: law’s normativity. With a proper understanding of political obligation, the problem of the nature of law takes on a different form, and we can obtain a deeper understanding of law as a social practice in realizing that widely held beliefs regarding law’s normative claims are somewhat mistaken. In this paper, I argue against a popular assertion, set forth by Joseph Raz and endorsed by many legal “positivists,” that law necessarily claims legitimate authority. As a result of my approach to legal philosophy, the implicit premises, assumptions, and structure of my argument can be broken down as follows: (1) it is a commonplace that law is a social phenomenon, that is, its existence is, in some sense, always a matter of social facts; (2) it is a commonplace that law is in some sense a product of the political; (3) in order to understand how law relates to the political and is (at least partly) determined by social facts, we must understand the political relationship; (4) in order to understand the political relationship, we must understand the nature of political obligation; (5) in order to fully understand political obligation, we must engage in normative argument regarding the existence of political obligation; (6) there is no political obligation; (7) this conclusion helps us understand the nature of law; in particular, (i) we must abandon a strong guidance-based conception of law, (ii) we must reconsider our ideas regarding “law’s normative claims,” and (iii) coercive superiority is an essential concept for understanding the nature of law as a social practice. In this paper, I focus on (ii) and argue that the proper understanding of political obligation affects our approach to the jurisprudential debate regarding “law’s normativity.” First, our understanding has implications relating to the Razian theory of law and authority. Specifically, I argue that Raz fails to establish his claim that official statements of legal obligation necessarily imply an assertion (whether genuine or insincere) of moral obligation. I also argue that Raz fails to establish that “law” necessarily claims legitimate authority. If we are committed to the idea that law makes certain claims, a more plausible view is that law claims to occupy a position of coercive superiority, that is, law claims the ability and willingness to enforce its norms. Alternatively, even if law necessarily claims legitimate authority (which it does not), I argue that Raz fails in his assertion that law, as a result of this claim, must be the sort of thing capable of legitimate authority.

“Humanitarian aid is never a crime”: humanitarianism and illegality in migrant advocacy.

I analyze the case of humanitarian pro-migrant activists in southern Arizona between 2000 and 2010 to explore how contending groups wield law and legality claims in a dynamic policy environment. Humanitarian activists both evade and engage the law. They appeal to a higher law to elude charges that they are acting illegally, while seeking assurances that their actions are within the law. Law enforcement agents rely on the authority and technical neutrality of the law in redefining humanitarian aid as illegal, while expanding their own claims to carry out humanitarian work. This case study of advocacy on behalf of “illegal” migrants highlights how both activists and those who enforce the law redefine legality in strategic ways.

Legal commentary

PurposeThe purpose of this paper is to discuss the High Court's rejection of claims made against a UK bank by a US‐based customer in relation to foreign exchange dealing it carried out as agent for its US affiliate based on common law and breaches of COBS Rules (BankLeumi (UK) plc v. Wachner, Queens Bench Division, Commercial Court; Mr Justice Faux).Design/methodology/approachThe paper discusses this action and counterclaim by the defendant.FindingsThe Judge did not find any of the three causes of action underlying the counterclaim to have any foundation, and he found the defendant liable for the full amount of the claim.Originality/valueThis paper draws attention to investors' attempts to shift trading losses onto the counterparties with or through whom they dealt through the use of common law, fiduciary principles or statutory tort claims. Such claims have no chance of succeeding unless the claimants can establish that they were incorrectly classified as an expert customer. Another point of interest to draw from this decision is to recall that product design and pre‐emptive restrictions on product innovation are once again a prominent feature of current debates on regulatory reform.

Assessing Law's Claim to Authority

The idea that law claims authority (LCA) has recently been forcefully criticized by a number of authors. These authors present a new and intriguing objection, arguing that law cannot be said to claim authority if such a claim is not justified. That is, these authors argue that the view that law does not have authority viciously conflicts with the view that law claims authority. I will call this the normative critique of LCA. In this article, I assess the normative critique of LCA, focusing predominantly on the arguments presented by its most incisive proponent Philip Soper. I defend a twofold conclusion. First, LCA, understood roughly along the lines put forward by Joseph Raz, is part of the most attractive analysis of law. Second, proponents of the normative critique, and in particular Soper, are committed to accepting LCA.

Elusive Normativity: A Review Article on Bertea’s the Normative Claim of Law

'Elusive Normativity’ deals with the nature of normativity in general and the normativity and the nature of law in particular. The first part of the paper contains a review of Stefano Bertea’s book The Normative Claim of Law. In this book Bertea aims to do two things. First he defends the view that the law makes a normative claim on us. And second he aims to found this normative claim. The main conclusion about this book is that Bertea either made it too hard on himself by arguing what would be obvious given one interpretation of his starting point, or made it too easy by devoting little attention to arguing one of his assumptions given another interpretation of his starting point.One of the main assumptions of Bertea’s book is that the normativity which the law according to Bertea claims to have cannot be reduced to matters of fact, such as the psychology of the law users. The second part of this paper is mainly devoted to a scrutiny of this assumption. Whether, and in what manner, such a ‘reduction’ is possible are the questions which guide this second part. The conclusion is that such a reduction is possible if one takes a constructivist approach to normative justification.

Looking for Law in all the 'Wrong' Places: Outlaw Texts and Early Women's Advocacy

Recent Supreme Court decisions such as Atkins v. Virginia and Lawrence v. Texas specifically address the linkages between shifting cultural attitudes and the evolution of law. In this Article, I examine the mutually constitutive relationship between legal and cultural developments from a historical perspective and illustrate the necessity of looking to sources that I define as outlaw texts in order to access invaluable information about the process of legal change. To demonstrate how a study of outlaw texts can enrich our understanding and critical consideration of law and legal history, this Article presents detailed analyses of specific examples of nineteenth-century women's narrative advocacy. The outlaw texts examined in the Article include narratives of nonfiction and fiction. While critical race, feminist, and cultural study of law scholars have emphasized the importance of looking beyond official legal texts such as statutes, judicial opinions, and legislative histories, this Article breaks new ground by arguing that this expanded inquiry also should include a heretofore unacknowledged source of legal history - the novel. The novel was the most popular form of women's writing in the nineteenth century and, as this Article shows, an important public legal forum for women. By providing a space where women's stories could be told and read, calling into question the law's claim to truth, and creating new knowledge through the shared tellings of women's experiences, nineteenth-century novels performed what today we would call feminist jurisprudence. Outlaw texts, whether real-life or fictional narratives, document the everyday effects and negotiations of law that ultimately influence how the law is revised and refined. With respect to the nineteenth century, these texts are records of experiences and perspectives that clearly were driving the significant legal reforms that took place at this time in the areas of married women's property, divorce, child custody, and domestic abuse. Through its specific study of the historical performance of feminist jurisprudence and early women's advocacy, this Article contributes to our knowledge of women's important but often overlooked roles in legal history. With its cross-disciplinary approach to what constitutes a legal text, as well as its analyses of the legal work performed in novels such as Wuthering Heights, this Article also suggests new and invigorating directions for the law and literature movement. But, most significantly, this Article concludes that the study of outlaw texts has broader implications for the study of law and legal education than its potential impacts on certain specialized fields. Outlaw texts bring into sharp focus the omissions of certain views, arguments, and experiences from traditional legal texts; they also illuminate the ways in which legal outsiders have produced, contested, and transformed law and legal meanings. Keywords: Law and Literature, Feminism

A Religious View of the Foundations of International Law

Over the last ten years there has been something of a crisis in American confidence in, and support for, international law. As the idea of order and justice in the international realm is considered and rationalized from various perspectives, it seems appropriate to consider also how it might be regarded from the viewpoint of the world’s leading religions. These lectures were delivered in late March 2011 as the Charles E. Test Lectures in the James Madison Program at Princeton University. Lecture 1 begins the task of considering law beyond the state from a specifically Christian point of view, though it also addresses the difficulties of sustaining a viewpoint of this kind in a multi-faith and indeed increasingly secular world. Lecture 2 considers nationhood, sovereignty, and the basis for the division of the world into separate political communities. Clearly a religious approach to order in the international realm will endorse the position of most modern international jurists that sovereign independence is not to be made into an idol or a fetish, and that the tasks of order and peace in the world are not to be conceived as optional, which sovereigns may or may not support at their pleasure. At the same time, sovereigns have their own mission, ordering particular communities of men and women; and this task, too, should not be slighted. Finally Lecture 3 will consider the rival claims of natural law and positivism in regard to the sources of international law Natural law is no doubt important in any Christian jurisprudence. But the most telling part of natural law jurisprudence from Aquinas to Finnis has always been its insistence on the specific human need for positive law. This holds true in the international realm as much as in any realm of human order - perhaps more so, because in the international realm law has to do its work unsupported by the overwhelming power of a particular state. So this final lecture will address, from a religious point of view, the sources of law in the international realm: treaty, convention, custom, precedent, and jurisprudence. It will focus particularly on the sanctification of treaties.

Storing Sperm in Scotland: A Risky Business?

Abstract: In 2009, the English Court of Appeal upheld a claim, brought by a number of men, in tort and under the law of bailment for damage caused by the negligent destruction of stored sperm, an event that had caused them psychiatric injury or mental distress. Under both causes of action, the success of the claim in Common Law was based on recognition of the sperm as the property of the claimants rather than any personal injury. As highlighted in the case, 'Future claims may be not only in respect of stored sperm but also products of a living human body intended for use by the persons whose bodies have generated them'. The significance of the decision may, therefore, have wider repercussions not only in England and Wale but other Common Law systems. This article considers whether similar facts would give rise to similar or different outcomes were they to arise in Scotland, which has a mixed legal system with elements of Civil Law. In concluding this comparison, this article considers whether there is common ground that could provide a border-neutral solution.

The Liability of Credit Rating Agencies to Investors: A Review of the Current Liability Regime and Recent SEC Proposals

The article attempts to provide a comprehensive review of the current common law and statutory liability of credit rating agencies to investors. In the course of this analysis the authors discuss potential causes of action against credit rating agencies by investors, considering contract law (third-party beneficiary claims), tort law (negligent misrepresentation, product liability. and tortious interference), as well as securities law claims for fraud (Rule 10b-5 under the Securities Exchange Act) and negligence (including potential claims against rating agencies as underwriters and experts engaged in the public offering process of securities). While credit rating agencies before the global financial crisis of 2008 regularly avoided being held liable for their ratings—seeking protection from negligence claims under the First Amendment—growing criticism over the consistency and reliability of their ratings and the independence of credit rating agencies has led to a shift in evaluation of their role as gatekeepers in the securities markets. As a result, in 2009 the SEC proposed to abolish Rule 436(g) under the Securities Act and thereby reclassified credit rating agencies as experts under Section 11 of the Securities Act. Congress, in an attempt to overhaul major parts of the financial system, in 2010 passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, which repealed Rule 436(g) as well as lowered the pleading requirements in securities law actions for fraud under Rule 10b-5 against credit rating agencies. This article reviews these changes while rethinking the current liability scheme. Due to the inherent complexity of a review of credit ratings under the different negligence standards of tort law or the liability instruments of the securities laws, finding an answer to the question of what standard of due care should apply will be decisive for the rating agencies’ daily business practices. Even though, in the authors’ view, the creation of a consistent liability system for rating agencies could be an achievable goal in the near future, the debate on this controversial subject is likely to continue. <b>TOPICS:</b>Information providers/credit ratings, credit risk management

Remarks by Lucinda Low

I would like to speak about the public international law claims and remedies that have been invoked in this case, in particular the second claim filed by Chevron and Texaco under the U.S.-Ecuador Bilateral Investment Treaty (BIT), and the now withdrawn request for precautionary measures filed by the Lago Agrio plaintiffs against Ecuador before the Inter-American Commission on Human Rights (IACHR), and their interaction with the domestic law claims in the case. I am not personally involved in the case. My law firm represents Chevron in other contexts, but I am not speaking on Chevron's behalf or on my firm's behalf, but in my personal capacity, based on extensive legal experience with the extractive industries. Before doing so, however, I want to focus on some of the factual aspects of the case that previous speakers have not highlighted. The theme of this Annual Meeting is complexity, and one of the dimensions of this case that is important to the issue of legal responsibility is factual complexity. In reviewing the voluminous history of this dispute, three aspects struck me as having received insufficient attention: (1) The empty chair at the table. The concession at issue in this case dates back to 1964. It is thus a very old concession, likely differing in significant respects from contracts or concessions for resource extraction that would be given today. During the entire time that Texaco, through its Ecuadorian subsidiary Texaco Petroleum Corporation (referred to herein for convenience as Texaco), was involved in Ecuador, it held a minority interest in a consortium that held the concession. From 1976, the concession was majority-owned by the state of Ecuador through its state-owned enterprise (SOE) PetroEcuador. Although Texaco was operator of the concession from 1974 to the time of its departure from Ecuador in 1990, decisions regarding the activities of the consortium would have been taken or approved by the consortium as a whole. Moreover, after Texaco left Ecuador in 1990, PetroEcuador took over as operator of the project and has since held 100% ownership. PetroEcuador has operated the project for more than two decades now. PetroEcuador is reported to have caused hundreds of spills during its tenure as operator. Yet the plaintiffs have targeted only the foreign investor, not the SOE. The judgment of the Ecuadorian courts makes no effort to determine or allocate responsibility, either among consortium members during the period Texaco was involved, or during the period after Texaco departed Ecuador and PetroEcuador was the sole owner and operator. (2) Remediation. After Texaco exited Ecuador in 1990, while Aguinda was still pending in the United States, agreements were reached between Texaco, the Ecuadorian government, and PetroEcuador allocating responsibilities for remedial work in the project area among them. It appears Texaco performed the work it contractually undertook to do, and was formally released by the state and PetroEcuador in 1998 (although Ecuador in 2008 sought to criminally impeach the lawyers for the company who signed certifications regarding the completion of remedial work which triggered the release). Texaco also sought and obtained releases from several municipalities in the project area. I have looked at these releases; they do not appear to cover anything but claims of the parties thereto; nor is there any right of indemnity. With 20/20 hindsight regarding what has since transpired (including the adoption of the legislation described below), Texaco might today draft the release somewhat differently than it did in 1995, but it probably thought at the time it had protected itself fairly well. (3) Environmental standards. It also appears that the basis of the Lago Agrio claim is legislation that was adopted in 1999, years after Texaco exited the country, and after it was released from liability by the state, creating for the first time a private right of action for environmental damage. …

Strain fluctuations from DIC technique applied on paper under fatigue or creep

We study the evolution of deformation on a quasi 2D paper sample during fatigue and creep experiments. Paper is a fibrous material, sensitive to various parameters (humidity, temperature, history effect). As for many materials, the lifetime varies a lot. Basquin's law claims that the number of cycles at break in fracture tests has a power-law dependence on the external load amplitude; Monkman-Grant relationship predicts that lifetime is proportional to the minimum strain rate during creep. The main question is therefore: is it possible to predict the time-dependent rupture? We perform creep and cyclic tests on paper samples. The main tools of investigation are acoustic emission (AE) -based analysis and digital image correlation (DIC). Via the AE, one can follow the damage evolution in samples, like microcrack formation that releases elastic energy. The DIC instead works well as a tool to measure at great accuracy both global and local deformation fields. From these, local strain rates can be derived, which then can be used to understand the microscopic dynamics that lie behind a certain rheology or sample response. The issue is to predict the break by looking at the sample-to-sample variation and by comparing experiments.

Low Carbon Economy and the Priority of Environmental Tort liability in Bankrupt Enterprises

Abstract As the important subject of developing low carbon economy, enterprises should implement the development idea of low carbon economy in the normal operations or at the stage of bankruptcy liquidation. The arrangement of repaying order of environmental claims in China's Enterprise Bankruptcy Law is not conductive to protect environmental creditor's interests and also doesn’t meet the target of low carbon economy. Environmental claims is mostly related to people's life and health, properties security and social benefit, so giving priority claim to environmental tort liability is not only the inherent need to realize the fair distribution of bankruptcy property, but also the inevitable choice to develop low carbon economy.

Tort Law and Human Rights: Brothers in Arms On the Role of Tort Law in the Area of Business and Human Rights

Over the past decades, transnational corporations (TNCs) have come under increasing public scrutiny for their involvement in human rights violations, particularly in developing countries. One may think of child and slave labour in the supply chain, cooperation with violent or corrupt regimes, and grand scale environmental pollution. Legal protection for victims of human rights violations against TNCs is poor. Public international law protects the freedom of trade but does not regulate the way companies use this freedom. Moreover, it is disputed whether international human rights law can impose obligations on companies. This has triggered the question what role national tort laws can play to fill this protection gap. This article first paints the factual background and the lack of international rules protecting victims of human rights violations (Section I). Section II lists the practical and legal problems victims face if they want to hold a TNC to account (such as fact-finding, forum, and applicable law). Section III provides an overview of tort law claims filed against TNCs in the United States and Europe. Finally, Section IV analyses the standard of care in tort law for a TNC to prevent its involvement in human rights violations, particularly through its subsidiaries and suppliers.