Every year, in cities and towns across the country, tens of thousands of property owners attempt to destroy their homes, offices, or other buildings that they own. Whether to clear space for new construction or to rid themselves of unwanted maintenance and expense, property owners often seek to take the proverbial wrecking ball to their property. Yet despite Blackstone’s exhortation that a property owner has “sole and despotic dominion . . . over the external things of the world,” an owner seeking to demolish a building will face numerous legal obstacles.
A wide range of common law and statutory rules—ranging from arson laws and the doctrine of waste, to historic preservation regulations and zoning ordinances, to private contractual agreements such as deed restrictions—operate to limit an owner’s right to destroy her property. These limitations reflect both an assumption that owners will rarely want to destroy something they own, since it presumably has value, as well as a utilitarian judgment that owners should not waste resources valuable to society. The right to destroy is thus a disfavored right compared to the others accorded to owners, such as the rights to use, exclude, transfer, and dispose. As noted by Professor Strahilevitz, Black’s Law Dictionary has even dropped the reference to the right to destroy from its definition of “owner.”
However, the right to destroy remains largely unconstrained for one particular type of property owner: the government.
Under the Federal Employers’ Liability Act (“FELA”), lawyers win and everyone else loses. Essentially, FELA fails on two accounts: time and money. FELA is the exclusive remedy for claims by railroad employees against employers for injuries suffered on the job; it supersedes all state laws. While one study showed that almost 99% of FELA cases are settled and 85% are settled without the help of an attorney, if not settled, FELA cases take an average of five-and-a-half years to be resolved. Moreover, when Congress reviewed FELA in 1988 for possible repeal, the administrator of the Federal Railroad Administration testified that almost a quarter of all employees who went to trial with claims of $500,000 or more actually received no compensation. Of those employees who did receive a judgment, between 25 and 31% of their judgments went to attorney’s fees.
Because of these shortcomings, many scholars and politicians have been calling for reform or repeal of FELA practically since its inception. However, proponents of FELA argue that the criticisms are unfounded. Proponents claim that because FELA is based on the tort liability system, it provides a deterrent effect. Additionally, FELA is less expensive than workers’ compensation schemes, and compensation under FELA is more individualized. Despite this debate and the constant critiques of FELA, Congress has failed to reform FELA in the over 100 years it has been law or even address the two main problems with FELA: time and money.
This article discusses how shortcomings of FELA—the enormous costs to both sides and the great amount of time that claims take to be resolved—cause FELA’s failure to serve the interests of both the injured employees seeking compensation and the railroads that employ them.
Kerry Lynn Macintosh
Imagine a scientist friend invites you to visit her research laboratory. She directs you to a cage. You see a small, furry creature with round ears and a long tail crouched in one corner of the cage. Based on these visual cues you assume the creature is a mouse. You quickly draw some basic inferences: the mouse is fond of cheese, afraid of cats, and none too bright.
Then your friend surprises you. She informs you that she engrafted the mouse with human brain stem cells; as a result, all the neurons in its tiny brain are of human origin. She made the mouse so she could study the function of human neurons in a living model. You ask whether the mouse thinks like a human. Your friend laughs and explains that its brain is too small for that.
You glance at the mouse again. Despite what your friend has said, the mouse’s glittering black eyes now seem to hold a spark of human intelligence. You shudder in revulsion.
This article takes a new approach to evaluating regulation of tobacco in general and the regulatory impact of the tobacco litigation in particular. Rather than viewing the tobacco litigation in isolation, regulation-through-litigation as an institutional response should be compared with potential alternative institutional responses such as regulation via administrative agency or the operation of market forces. Because courts have been better at generating technocratic information and at the same time can avoid the barriers to regulation that other institutions face, courts have been and will continue to be the preferred institution for regulating the social-costs externalities of tobacco consumption. In combination with an appreciation of the main regulatory problems that tobacco presents, this conclusion suggests a reevaluation of regulatory devices such as taxation, administrative compensation systems, and liability that could address these problems. This article concludes that a court-based enterprise-liability scheme would be the most effective tool for correcting the social-cost externalities created by tobacco consumption.
Megan M. La Belle
Congress, the Executive, and the Judiciary have all had “patent litigation abuse” on their minds recently. The concern is that too many frivolous patent suits are being filed and used to extract unwarranted settlements. The story is that bad actors—patent assertion entities (PAEs) or, more pejoratively, “patent trolls”—are suing small companies and end users for patent infringement even though PAEs make no patented products themselves. Over the past two years, Congress proposed nearly a dozen bills aimed at curbing patent litigation abuse, the Executive took various anti-troll measures, and the Supreme Court decided a pair of cases that make it easier to shift fees based on patent litigation misconduct.
In the meantime, federal district courts have been addressing the patent litigation situation for years through procedural reform. Beginning in 2000, districts started adopting local patent rules to manage patent litigation. Today, thirty district courts in twenty different states have comprehensive local patent rules, and many more individual judges have adopted “local-local” rules or standing orders that apply to patent cases in their courts. While commentators have generally lauded the efforts of district courts to manage patent litigation, the consequence is highly divergent patent practice from one federal district court to the next.
This Article is the first academic treatment of local patent rules to consider their effect both on patent policy and our federal system of civil procedure. It argues that the local patent rules movement undermines policies germane to patent law, particularly uniformity, and transgresses the trans-territorial and trans-substantive ideals of the Federal Rules of Civil Procedure. Yet, specialized procedural rules appear not only to be the current reality in patent litigation, but the inevitable future as well. The Article therefore proposes the promulgation of a national set of procedural rules to govern patent litigation—the Federal Rules of Patent Procedure—which will borrow from and be shaped by the local patent rules experiment.
Innovation in the European Union (“E.U.”) has been lagging behind innovation in the United States for many years. Many European business leaders have cited the cost of obtaining a patent, the complexity of navigating the patent process, and the lack of uniform patent enforcement as causes of the slow growth of European innovation. The European Patent Office (“EPO”)—the E.U.’s governing patent body—recently announced significant changes to make patenting in the E.U. less expensive and less complex.
On December 17, 2012, twenty-five E.U. member states—which counts for most, but not all of the E.U. member states—banded together to enact two regulations for the purposes of creating a unitary patent and agreeing on the languages required to obtain a unitary patent. Approximately two months later, most of the same countries adopted a third provision establishing a Unified Patent Court. This paper discusses specific provisions within the three agreements, and some of the broader effects these agreements will likely have throughout the E.U.
Christopher N.J. Roberts
The Supreme Court is likely to hear another contentious Second Amendment gun case in the near future. This Article argues that focusing exclusively on rights—the dominant mode of legal analysis in such cases—is, ironically, not the appropriate foundational starting point. By pitting competing personal interests and incompatible rights claims against one another, this legal issue is likely to devolve into a dispute over politics and ideologies rather than law. If we are to prevent the next Second Amendment Supreme Court case from drifting away from its legal moorings into another ideological contest, this Article suggests that the appropriate starting point begins with recognition of one of the most basic, yet widely overlooked legal propositions: For every right there is a correlative duty. Interestingly, although every legal right must be associated with a legal duty, this analysis of the recent District of Columbia v. Heller gun case shows that the subject of duties is almost entirely absent from consideration. This analysis shows that without duties, legal rights are reduced to mere politics—one-way paths directed toward individual interests, political purposes, and ideological ends. The analytic framework outlined in this Article not only offers a nuanced and precise rendering of how our Constitutional rights operate in context, it also provides the theoretical and conceptual scaffolding necessary for the empirical study of these rights.
A new arena inviting collaboration between the law and sciences has emerged in criminal justice. The nation’s economic struggles and its record-breaking rate of incarceration have encouraged policymakers to embrace a new penology which seeks to simultaneously curb prison populations, reduce recidivism, and improve public safety. The new penology draws upon the behavioral sciences for techniques to identify and classify individuals based on their potential future risk and for current best evidence to inform decisions on how to manage offender populations accordingly. Empirically driven practices have been utilized in many criminal justice contexts for years, yet have historically remained “a largely untapped resource” in sentencing decisions. One reason is that sentencing law in America has for some time been largely driven by retributive theories.The new penology clearly incorporates utilitarian goals and welcomes an interdisciplinary approach to meet them.
This article helps lay the foundation for a new field of international law—International Law and Technology—and opens novel avenues of inquiry in law and technology and intellectual property more broadly. It analyzes as a starting point why some technologies generate global conflicts while others do not. Technologies that face international resistance can ...
Social media has entered the mainstream as a go-to source for personal information about others, and many litigators have taken notice. Yet, despite the increased use of social media in informal civil discovery, little guidance exists as to the ethical duties—and limitations—that govern social media snooping. Even further, the peculiar challenges created ...
Carrie A. Laliberte
This Comment examines the relationship between the National Oceanic and Atmospheric Administration’s (NOAA) newly proposed shark finning rule and existing state shark finning legislation. Specifically, the analysis concludes that the NOAA rule should not be adopted as proposed because it would effectively weaken existing state laws, which are essential to protect ...