Face Liability Research Articles

Reconsidering the Reinsured’s Damages and Costs for Late Payment: A Comparative Analysis Between English and American Law

The reinsured (original insurer) would face liability by section 13A of the Insurance Act 2015 in the UK and incur the costs or expenses of investigating and defending against the insured’s valid claims, where the reinsured withholds or delays paying insurance proceeds to the insured. The reinsurer generally would not be held liable for the unreinsured contractual liability and costs unless special requirements are met. The critical points for the reinsured to recover the reimbursement of damages and expenses from the reinsurer are to confirm the reinsurer’s actual participation or intention in refusing to indemnify the original assured timeously or in defending against the insured’s valid claims by way of proving the reinsurer’s compulsion or identifying them as a joint enterprise. The follow-the-settlements clause cannot render the reinsurer liable for the unreinsured liability. It is more reasonable that the policy limits only restrict the sums reinsured but do not cap the unreinsured damages and costs. Reinsurance, contractual liability, late payment, joint enterprise, policy limits

THE PROSPECT OF INTERPLANETARY MISSION: ARE WE READY?

Mars exploration missions in the future will be focused on Mars Sample Return (MSR) and humans as space crew in late 2028 or early 2030 by NASA and other non-government entities, such as Space Exploration Technologies (Space X) and Blue Origin. MSR and sending humans to explore Mars raises environmental contamination issues, which are governed in law by Article IX of the Outer Space Treaty 1968 to “avoid harmful contamination.” Though there is no existing international law instrument to address this issue comprehensively, Article IX was not clear to explain harmful contamination. Thus, non-governmental entities involved in future missions to Mars face liability, especially in the case of an accident causing fatalities or adverse environmental impact for the Earth and Mars. This article examines related regulations in corpus iuris spatialis, including soft law and elaborating with astrobiological data to encourage new regulation, ensuring liability and environmental safety on future Mars missions.

Using experimental evidence to improve delegated enforcement

Digital content today is governed by online providers like Facebook or YouTube. Increasingly, these providers are expected to enforce the law by removing illegal content, such as copyright infringement or hate speech. Typically, once they are notified of its existence, they have to assess it and, if infringing, remove it. Otherwise, they face liability. This system of content moderation is a form of delegation of the state’s tasks to private parties. In literature, it is empirically established that some schemes of delegated enforcement can trigger substantial false positives, mostly due to over-compliance by providers and under-assertion of rights by affected content creators. This results in a phenomenon known as over-blocking: collateral removal of lawful content. We conduct a laboratory experiment to test a possible solution to this issue, as proposed by Husovec (2016). Our results show that an external dispute resolution mechanism subject to a particular fee structure can significantly reduce over-compliance by providers and improve the accuracy of their decisions, largely thanks to the content creators taking initiative. It does so by re-calibrating the typical asymmetry of incentives under the delegated enforcement schemes. The principles behind the solution have the potential to improve also other schemes of delegated enforcement where providers have weak incentives to properly execute delegated tasks in the public interest.

Clinician Maladaptive Anxious Avoidance in the Context of Implementation of Evidence-Based Interventions: A Commentary.

This paper posits that a clinician's own anxious reaction to delivering specific evidence-based interventions (EBIs) should be better accounted for within implementation science frameworks. A key next step for implementation science is to delineate the causal processes most likely to influence successful implementation of evidence-based interventions (EBIs). This is critical for being able to develop tailored implementation strategies that specifically target mechanisms by which implementation succeeds or fails. First, we review the literature on specific EBIs that may act as negatively valenced stimuli for clinicians, leading to a process of clinician maladaptive anxious avoidance that can negatively impact EBI delivery. In the following sections, we argue that there are certain EBIs that can cause emotional distress or discomfort in a clinician, related to either: (1) a clinicians' fear of the real or predicted short-term distress the EBI can cause patients, or (2) fears that the clinician will inadvertently cause the patient harm and/or face liability. This distress experienced by the clinician can perpetuate a cycle of maladaptive anxious avoidance by the clinician, contributing to lack of or suboptimal EBI implementation. We illustrate how this cycle of maladaptive anxious avoidance can influence implementation by providing several examples from leading EBIs in the psychosocial literature. To conclude, we discuss how leveraging decades of treatment literature aimed at mitigating maladaptive anxious avoidance can inform the design of more tailored and effective implementation strategies for EBIs that are negatively valenced.

Auditor liability and excess cash holdings: Evidence from audit fees of foreign incorporated firms

Auditors of foreign cross-listed firms face liability arising from the nature of the institutional monitoring framework of legal claims that can potentially be brought against the auditor in both the home country and the US. This paper is the first to document the relationship between auditor liability and auditor pricing of excess cash holdings for foreign firms cross-listed in the US. Our findings indicate that auditors demand a fee premium for foreign incorporated clients with greater excess cash holdings, consistent with auditors recognizing the potential for legal exposure to agency conflict arising from foreign listed US traded clients. Furthermore, we examine aspects of foreign capital market protections, such as disclosure requirements, the strength of legal enforcement, and the strength of shareholder rights to better understand auditor perception of the liability they incur due to the agency costs associated with excess cash holdings. We find that there is a significant positive association between audit fees and excess cash holdings for firms where the country of incorporation permits greater liability of auditors in criminal and civil litigation. In addition, auditors assign higher audit fees to firms holding greater excess cash incorporated in countries with greater required accounting disclosure, stronger legal enforcement and stronger shareholder rights.

Auditor Liability and Excess Cash Holdings: Evidence from Audit Fees of Foreign Incorporated Firms

Auditors of foreign cross listed firms face liability arising from the nature of the institutional monitoring framework of legal claims that can potentially be brought against the auditor in both the home country and the US. This paper is the first to document the relationship between auditor liability and auditor pricing of excess cash holdings for foreign firms cross-listed in the US. Our findings indicate that auditors demand a fee premium for foreign incorporated clients with greater excess cash holdings, consistent with auditors recognizing the potential for legal exposure to agency conflict arising from foreign listed US traded clients. Furthermore, we examine aspects of foreign capital market protections, such as disclosure requirements, the strength of legal enforcement, and the strength of shareholder rights to better understand auditor perception of the liability they incur due to the agency costs associated with excess cash holdings. We find that there is a significant positive association between audit fees and excess cash holdings for firms where the country of incorporation permits greater liability of auditors in criminal and civil litigation. In addition, auditors assign higher audit fees to firms holding greater excess cash incorporated in countries with greater required accounting disclosure, stronger legal enforcement and stronger shareholder rights.

Liability for the Fact of Autonomous Artificial Intelligence Agents. Things, Agencies and Legal Actors

Abstract European Union institutions are currently studying the regulatory intervention needed to face liability problems solicited by the use of autonomous artificial agents, whose unforeseeable actions may result in damage for their users or third parties. This paper intends to analyze some of the solutions proposed, by putting in relation – also from a historical perspective – the possibility of widening producers’ or users’ strict liability for actions by artificial agents even when they are not fully predictable and that of extending the status of legal actor to some of these artificial agents, so as to attribute the damaging fact directly to them.

Green Banking Practices of HDFC bank : A Case Study

Banking sector is one of the chief economic factors that effects industrial and economic growth of any country. As in the industrial sector, banking is one of the main stakeholders that can face credit risk and liability risk and its quality of assets and rate of return can be influenced by the environmental effects in the long run. In view of this, banks have to play a positive role to go green and inculcate the environmental and ecological factors in their policies. Green banking strategies mean promoting environment-friendly practices and reducing carbon footprint in the day to day banking activities. Some banks in India including the private bank HDFC have developed several green banking initiatives. By adopting these practices, the customers as well as the banks employees can contribute a lot towards the environment. This paper aims to highlight the green banking initiatives introduced by HDFC in Delhi which may help identify the possible gaps in the green initiatives in the banking sector in India. The collection of data was done through a structured questionnaire using SPSS technique. The study found that Green banking initiatives have direct and positive impact on the environment because doing these practices; customers can save energy, fuel, paper, water, time as well as money. The common people are yet to come forward to follow these practices due to lack of the awareness.

Cell Phone Searches by Employers

This Article presents a framework for analyzing searches of privately-owned and employer-owned cell phones by both public and private employers. For employee-owned cell phones, this Article argues that such devices are entitled to the greatest constitutional protection under relevant Fourth Amendment precedent, including Riley v. California, and are typically beyond the reach of the Fourth Amendment’s workplace exception, making them generally immune from search by public employers. Given the highly offensive nature of personal cell phone searches, this Article further argues that private employers would typically face liability in tort for most personal cell phone searches. Nevertheless, for both types of employers, this Article contends that limited searches of personal cell phones might be permissible if an employer has implemented a clear and narrow policy authorizing such searches, to which employees have voluntarily consented, that is itself justified by a legitimate business need to manage or review particular employment-related data contained within the phone. For employer-owned cell phones, this Article recognizes that employees often cannot expect privacy in such devices vis-a-vis their employers, particularly where an employer’s policy permits their inspection, making them more freely searchable by employers. Nevertheless, in cases where an employee could reasonably expect privacy in an employer-issued cell phone, as in certain instances where the employee is the exclusive user of the device, this Article argues that employers should conduct such searches in a reasonable manner. Accordingly, for either public or private employers, this Article argues that when an employer wishes to search an employer-issued device, the employer should ensure it has a strong business justification for the search, should limit its search to avoid accessing private information unrelated to the intrusion’s justifications, and should select the least intrusive means available for conducting the search. In the end, determining whether an employer may lawfully search or seize the contents of an employee’s cell phone must be done on a case-by-case basis. However, the principles identified in this Article will serve as helpful guides for employers and reviewing courts in specific cases.

Liability and Failure to Warn a Patient.

This medicolegal article examines a physician's liability when he or she has knowledge of adverse effects associated with a prescription medication and suggests ways to mitigate that liability risk. The article also discusses the circumstances under which pharmaceutical companies face liability for side effects such as tardive dyskinesia.

Manage your liability as a board member

Board members may face liability when they serve on a nonprofit board. That's because the board has legal responsibility for the nonprofit organization it governs. Here are six ways to minimize your risk.

Short-Changing Compliance

How can we ensure corporations play by the “rules of the game”—that is, laws encouraging firms to avoid socially harmful conduct? Corporate compliance programs play a central role in society’s current response. Prosecutors give firms incentives—through discounts to penalties—to implement compliance programs that guide and monitor employees’ behavior. However, focusing on the incentives of firms overlooks the perspective of managers, who decide how much firms invest in compliance. We show that stock-based pay, ubiquitous for corporate executives, creates systematic incentives to short-change compliance. Compliance is a long-term investment for firms, whereas managers’ time horizon is truncated to the date they expect to liquidate stock. Moreover, investors find it hard to value compliance programs because firms routinely disclose little or nothing about their compliance activities. We show that stock-compensated managers prefer not to disclose compliance because such disclosure can reveal private information about a firm’s propensity to misconduct. As a result, both managers and markets are likely myopic about compliance. How can this problem be resolved for the benefit of society and shareholders? Boards of directors are supposed to act as monitors to control managerial agency costs. We show that the increasing use of stock-based compensation for directors, justified as a means of encouraging more vigorous oversight of business decisions, also has a corrosive effect on boards’ monitoring incentives for compliance. Directors in theory face liability for compliance oversight failures, but only if so egregious as to amount to bad faith. We argue that this standard of liability, established in an era before ubiquitous stock-based compensation for both managers and directors, has now become too lax. We propose more assertive directors’ liability for compliance failures, limited in quantum to a proportionate clawback of stock-based pay. This would add power to the alignment of directors’ interests with those of shareholders— directors would stand to lose more than just a decrease in the value of their stock in the event of a compliance failure—but limiting liability in this way would avoid pushing boards to overinvest in compliance. We outline ways in which this proposal could be implemented either by shareholder proposals or judicial innovation.

Fighting for the Internet: Online Blackout Protests and Internet Legislation in the United States, 1996-2018

Fighting for the Internet: Online Blackout Protests and Internet Legislation in the United States, 1996-2018

Perfectly Irresistible: Developer Liability for Internet Addiction Disorders

Can companies who design software programs for public consumption be held liable to customers who develop internet addiction disorders? IAD exacts terrifying costs on its victims, and unfortunately, addicts cannot escape the internet without opting out of modern society. And yet, companies continue to add, intentionally, features that make their products addictive. While they build stronger magnets to attract more users, they pull vulnerable users even closer: in some cases, creating addiction. This Paper examines the question of whether companies should face liability for their ever-strengthening magnet, and if so, under what theory? The Working Paper draws on suits against casinos to estimate whether developers might be held liable for negligence.

The Limits of Gatekeeper Liability

Gatekeeper liability – the framework under which actors such as law firms, investment banks and accountants face liability for the wrongs committed by their corporate clients – is one of the most widely used strategies for controlling corporate wrongdoing. It nevertheless faces well-recognized flaws: gatekeepers often depend financially on the clients whose conduct they monitor; to carry out their gatekeeping function, gatekeepers rely on individuals – often their employees – whose interests diverge from their own; and major transactions typically involve multiple gatekeepers, each with specific areas of expertise and information, which produces both gaps and overlaps in the gatekeeping net. In this paper, I assess a recently proposed strategy intended to address the core challenges that afflict gatekeeper liability. Proposed by Professor Stavros Gadinis and Mr. Colby Mangels in Collaborative Gatekeepers, 73 Wash. & Lee L. Rev. 797 (2016), the strategy would require gatekeepers to report their suspicions of wrongdoing by their clients to regulators – a duty that is analogous to rules that have proven effective in anti-money laundering regulation. I assess the proposal’s likely effectiveness by, first, distinguishing it from conventional gatekeeping regimes. I argue in favor of the proposal but suggest that its success is likely to depend on the particular ways in which it interacts with conventional gatekeeper regimes – because the proposal would be overlaid on these existing regimes, rather than amending or replacing them. I also examine the basic difficulty in justifying any gatekeeper liability regime that stems from the need to establish its superiority over more direct forms of liability – namely, individual and enterprise liability – a task that hinges on the satisfaction of numerous complex conditions that cannot be established – easily, or at all (at least to the satisfaction of those inclined to oppose new liability regimes). Arguing that the Gadinis–Mangels proposal nevertheless holds strong promise, I suggest an extension designed to overcome defects associated with the fragmentation of the gatekeeping net that results from the presence of multiple gatekeepers in major business transactions.

Employer-Mandated Vaccination Policies: Different Employers, New Vaccines and Hidden Risks

The overwhelming weight of authority confirms that vaccines save lives. But vaccine opponents have been vocal and influential, and even some who work in healthcare facilities distrust vaccines. The tension between employees who distrust vaccines and employers who want to encourage or require vaccination has led many healthcare policy and legal scholars to explore the legal and ethical implications of compulsory vaccine policies. While many scholars have made important contributions to this discussion, most of the legal scholarship has focused on a single vaccine for a limited class of employees: the influenza (flu) vaccine for healthcare workers. Moreover, the focus of the literature is on healthcare employers’ potential liability if they require employees to get the flu vaccine. However, new diseases threaten our communities constantly, and as new vaccines are developed (such as the Zika and Ebola vaccines currently being developed and tested) healthcare and non-healthcare employers must reconsider imposing mandatory vaccination policies. This Article considers the factors those employers should consider when deciding whether to require employees to be vaccinated against diseases other than the flu. Similarly, most arguments in support of or in opposition to flu vaccination policies do not address whether healthcare or other employers may face liability if they fail to require employees to be vaccinated. The question is critically important because mandating vaccines is almost unheard-of outside of the healthcare context. Many lawyers and government agencies advise employers to encourage but not mandate employee vaccination, and the only risks identified are the risks of being sued for imposing a mandate in violation of anti-discrimination statutes. The unstated premise is that there is no liability if the employer chooses not to require vaccination. This Article considers the accuracy of that premise and concludes that employers whose employees are likely to transmit diseases to other employees, vulnerable clients, or patients may face liability if they do not to require their employees to be vaccinated.

Be ready for a lawsuit even if OCR finds no violation

Most students who believe they have been wrongfully denied an academic adjustment or reasonable accommodation complain to the Office for Civil Rights rather than sue under Section 504 of the Rehabilitation Act or the Americans with Disabilities Act. They file OCR complaints for two reasons: you don't need a lawyer or the associated costs to complain to OCR, and OCR is often thought to be more likely to be receptive to a complaint than is a federal judge. But even when OCR finds no violation, a student can still sue for damages under Section 504, and a school may still face liability despite the OCR finding.

Bowman v. Monsanto Co.: A Bellwether for the Emerging Issue of Patentable Self-Replicating Technologies and Inadvertent Infringement

The inherent tendency of patented seeds to self-replicate has led to fears that farmers might face liability for inadvertent patent infringement. To address the perceived problem, some have proposed severely limiting the availability of effective patent protection for self-replicating technologies. Typical examples include denying patent rights to second generation self-replicating products, and even broadly declaring such technologies ineligible for patent protection. The fact is, lawsuits against inadvertently infringing farmers remain of largely hypothetical concern. However, changes in the market could soon render such lawsuits a reality. In addressing the resulting policy concerns, Congress and the courts have at their disposal a variety of doctrinal tools that could effectively shield legitimately inadvertent infringers from liability without unduly weakening the ability of patents to incentivize investment in the development of self-replicating technologies. A failure to do so could have dramatic unintended consequences for a host of emerging self-replicating technologies in areas as diverse as synthetic biology, nanotechnology, computer software, and even space exploration. Congress and the courts have already addressed problems of inadvertent copyright infringement that have arisen with respect to software and other digitally encoded content, and some of the same fundamental principles could be recruited to address the emerging issue of inadvertent patent infringement caused by the increasing prevalence of patentable self-replicating technologies. At the same time, innovators in self-replicating technologies might need to seriously consider the implementation of technological restrictions on copying as a practical alternative to patent protection.

Request for an Advisory Opinion Submitted by the Sub-regional Fisheries Commission (SRFC)

On April 2, 2015, the International Tribunal for the Law of the Sea (ITLOS or Tribunal) rendered an advisory opinion on the rights and obligations of flag states and coastal states regarding illegal, unreported, and unregulated (IUU) fishing within the exclusive economic zone (EEZ). ITLOS confirmed that the full Tribunal—not just its Seabed Disputes Chamber—has jurisdiction to render advisory opinions, a matter of controversy that had previously been untested. The Tribunal also held that under the 1982 United Nations Convention on the Law of the Sea (UNCLOS or Convention), flag states have a “due diligence” obligation to ensure that vessels flying their flag do not engage in IUU fishing activities, and that the flag state may be held liable if that obligation of due diligence is breached. In addition, the Tribunal clarified that where fisheries competence has been transferred from a state to an international organization, it is the organization, not the flag state, that may face liability for a failure to have taken adequate measures to prevent IUU fishing. Finally, the Tribunal confirmed that coastal states have a duty to consult and cooperate with each other in the sustainable management of shared stocks and highly migratory species.

Do Contractors Face Liability for Providing Design Solutions?

Sophisticated contractors and subcontractors frequently propose design solutions, but they should be sure those solutions are examined by the owner’s design professionals to avoid blurring the lines of liability.