Category: Issue 4
Article
An Essay on the Quieting of Products Liability Law
Aaron D. Twerski, Irwin & Jill Cohen Professor of Law, Brooklyn Law School
For several decades, courts and commentators have disagreed as to whether the standard for liability in product design defect cases should be based on risk-utility tradeoffs or disappointed consumer expectations. Although a strong majority opt for risk-utility a significant minority of courts adopt the consumer expectations test. This Essay contends that as a practical matter…
May 2020
Article
The Paradoxical Impact of Scalia’s Campaign Against Legislative History
Stuart Minor Benjamin, Douglas B. Maggs Professor of Law, Duke Law School
Kristen M. Renberg, Ph.D. Candidate, Department of Political Science, Duke University & J.D. student, Duke Law School
Beginning in 1985, Judge and then Justice Antonin Scalia advocated forcefully against the use of legislative history in statutory interpretation. Justice Scalia’s position, in line with his textualism, was that legislative history was irrelevant and judges should avoid invoking it. Reactions to his attacks among Justices and prominent circuit judges had an ideological quality, with…
May 2020
Article
Torts as Private Administration
Nathaniel Donahue, JD/Ph.D. candidate, Yale University, nathaniel.donahue@yale.edu
John Fabian Witt, Allen H. Duffy Class of 1960 Professor of Law, Professor of History, and Head of Davenport College, Yale University, john.witt@yale.edu
What does tort law do? This Article develops an account of the law of torts for the age of settlement. A century ago, leading torts jurists proposed that tort doctrine’s main function was to allocate authority between judge and jury. In the era of the disappearing trial, we propose that tort law’s hidden function is…
May 2020
Article
The Corporate Privacy Proxy
Shaakirrah R. Sanders, Professor of Law, University of Idaho College of Law. J.D., Loyola University New Orleans College of Law (2001)
This Article contributes to the First Amendment corporate privacy debate by identifying the relevance of agriculture security legislation, or ag-gag laws. Ag-gag laws restrict methods used to gather and disseminate information about commercial food cultivation, production, and distribution—potentially creating a “right” to control or privatize nonproprietary information about animal and agribusinesses. Yet, corporate privacy rights…
May 2020
Note
Closing the Racial Gap in Financial Services: Balancing Algorithmic Opportunity with Legal Limitations
Julia F. Hollreiser
This Note will explore the potential for financial institutions to use fintech to address race-based financial inequality while also being attentive to the possibility that seemingly innocuous technologies can generate biased banking practices against minority communities. Part I of this Note will discuss the history of the inequitable distribution of wealth in the United States and race-based gaps in access to financial services and products. Part II will then identify various techniques that financial institutions have used to target minority consumers. It will discuss the legality of those techniques under existing regulations, statutes, and case law. Part III of this Note will describe the role that algorithms, big data, and artificial intelligence have come to play in credit assessment and lending decisions, focusing on the risks inherent in algorithmic decision-making and the potential for these decisions to generate racially discriminate results. Part IV will then explore the opportunity for algorithmic lending in fintech to close the racial gap in financial services while still operating within the broader legal landscape.
May 2020
Note
Executive Privilege—With A Catch: How a Crime-Fraud Exception to Executive Privilege Would Facilitate Congressional Oversight of Executive Branch Malfeasance in Accordance with the Constitution’s Separation of Powers
Anthony W. Wassef
Part I of this Note will provide a brief history of executive privilege via an analysis of the key case law underlying the doctrine and discuss the core tenets of the privilege that dictate its use. Part II will describe the origins of Congress’s power to investigate and the current rules for overcoming executive privilege in that context. Part III will discuss how, in playing the three critical functions mentioned above, a crime-fraud exception would balance Congress’s interest in performing its oversight duties with the executive branch’s interest in confidentiality while simultaneously reducing instances of criminal or fraudulent conduct by the executive branch.
May 2020
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