“Trade in Force”: The Need for Effective Regulation of Private Military and Security Companies – Note by Stephanie M. Hurst

From Volume 84, Number 2 (January 2011)
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On September 16, 2007, allegedly without any provocation or justification, personnel from the security firm formerly known as Blackwater Worldwide1 fired into Baghdad’s crowded Nisoor Square and killed seventeen Iraqi civilians. To date, neither the firm nor its employees have been held accountable for this incident. Moreover, a report issued by a U.S. House of Representatives oversight panel in October 2007 indicated that “Blackwater employees had been involved in at least 196 firefights in Iraq since 2005, an average of 1.4 shootings per week.” The report also stated that in 84 percent of these incidents, Blackwater personnel were the first to fire even though, by contract, they were allowed to fire only in self-defense.

Unfortunately, Blackwater is neither the first nor the only security firm to commit human rights abuses. In the late 1990s, personnel from another security firm, DynCorp International, allegedly bought women and girls as sex slaves while deployed in Bosnia. The only punishment rendered on the personnel responsible for these human rights abuses was the termination of their employment contracts. Moreover, despite these allegations, the firm later received a contract in Iraq worth $250 million.

 

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Taking the Fight Back to Title VII: A Case for Redefining “Because of Sex” to Include Gender Stereotypes, Sexual Orientation, and Gender Identity – Note by William C. Sung

From Volume 84, Number 2 (January 2011)
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Michael P. Carney was a good cop. Since graduating from the police academy in 1982, he received numerous commendations for his outstanding work as a police officer and contributions to the community. He had been recognized for saving a man who had jumped from a bridge into the Connecticut River in a suicide attempt, apprehending a bank robber, and cofounding a youth mentorship program. He had worked as a police academy instructor, an aide to the chief of police, and a detective in the youth assessment center, the narcotics division, and the uniform division. But behind closed doors, he was tormented by the need to keep a secret for many years—Carney was gay.

For years Carney stayed in the closet out of fear of reprisal and being ostracized. He went to work every day afraid to talk about his personal life, including a date from the night before, his weekend, or his family. He went into every domestic or gun call thinking if he were gunned down, who would notify his life partner? Would his life partner learn of his death on the eleven o’clock news? How would his colleagues treat his life partner at his funeral? This fear led to years of isolation and heavy drinking, which took their toll; in 1989, beaten and defeated, Carney resigned from his post.

 

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Volume 84, Number 1 (November 2010)

Volume 84, Number 1 (November 2010)

Empty Promises – Article by Oren Bar-Gill & Kevin Davis

From Volume 84, Number 1 (November 2010)
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Consumer contracts are pervasive. Yet, the promises that make up these contracts are becoming increasingly empty, as sellers reserve the power to modify their contracts unilaterally. While some modifications benefit both sellers and consumers, others increase seller profits at the consumer’s expense. The law’s goal should be to facilitate good modifications, while preventing bad ones. Currently this goal is not met. The problem is twofold. First, consumers fail to appreciate the risk of unilateral modification and thus fail to demand a commitment by sellers to avoid inefficient modifications. Second, and more important, even if consumers demand a commitment to make only mutually beneficial modifications, existing commitment mechanisms—consumer assent to modifications, judicial review of modifications, and seller reputation—are inadequate. We propose a novel commitment mechanism: adding Change Approval Boards (“CABs”) as parties to consumer contracts. These CABs would selectively assent to, or withhold assent from, contractual changes that sellers wish to make, according to each CAB’s modification policy. We envision a market for CABs—multiple CABs, each striking a different balance between flexibility and security, offering a range of modification policies from which consumers can choose. The market-based CAB system promises to deter abusive term changes while retaining the flexibility to change consumer contracts when change is justified.

 

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Oversight Liability for Risk-Management Failures at Financial Firms – Article by Robert T. Miller

From Volume 84, Number 1 (November 2010)
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Many people believe that excessive risk taking at large financial firms was an important cause of the financial crisis of 2007–2008 and that preventing another crisis requires improving risk-management systems at such institutions. One way to do this would be to use board oversight liability to hold directors personally liable for failing to properly monitor the risks that their firms are running. The purpose of this Article is to determine what role director oversight liability can efficiently play in improving risk-management practices at large financial firms.

A key contention of this Article is that previous treatments of this problem have largely failed to appreciate what risk managers at large financial firms actually do, and so the Article begins by explaining some of the financial models that risk managers typically use to measure the market risk and credit risk on portfolios of assets. A realistic appreciation of these models shows that the measurements of risk that they yield must necessarily incorporate paradigmatic business judgments, most importantly because these models aim to predict future results on the basis of historical data. In other words, the predictive ability of the models is founded on the business judgment that the future will resemble the past in relevant respects. Risk-management decisions are therefore always business decisions.

 

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Resolving the Dilemma of Nonjusticiable Causation in Failure-to-Warn Litigation – Article by Aaron D. Twerski & Neil B. Cohen

From Volume 84, Number 1 (November 2010)
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Failure-to-warn cases represent a significant portion of product liability law, yet the core concepts of this body of law are poorly developed. In particular, the standard tort requirement that the injured party demonstrate a causal connection between the defendant’s violation of duty and the injury simply does not work in the vast majority of failure-to-warn cases. A substantial body of social science literature demonstrates that, in all but extreme cases, it is impossible for an injured party to demonstrate by a preponderance of the evidence—and thus for a court credibly to conclude—that the party would have acted differently had a warning been provided. Thus, a rigorous application of the causation requirement would result in defeat for most injured parties. Yet, some injuries certainly could be prevented by effective warnings, even if those beneficiaries cannot be easily identified. A legal system that denies recovery to virtually all injured parties because it cannot ascertain which parties’ injuries would have been prevented undercompensates victims and underdeters dangerous practices by product manufacturers and distributors, and thus does not fulfill the goals of the tort system. Some courts and commentators have recognized this problem and have put forth a variety of mechanisms to resolve it. Those mechanisms—such as “heeding presumptions” and enterprise liability—suffer from the opposite problem: they compensate injured parties without regard for whether there is a causal connection between the lack of a warning and the injuries. The result is overcompensation of plaintiffs, overdeterrence of manufacturers, and underdeterrence of risky consumer conduct. This too fails to fulfill the goals of tort law. In this Article, the authors propose eliminating causation as an independent requirement in most failure-to-warn cases and instead determining an injured party’s recovery by allowing proportional recovery, taking into account both the severity of the manufacturer’s fault in failing to warn of the dangers associated with its product and the likelihood that the plaintiff’s injuries would have been prevented by a warning. Such a system would recognize that some failures to warn are more egregious than others and would generate a closer match between aggregate compensation and aggregate injuries caused by a failure to warn.

 

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Behavioral Addictions and the Law – Note by Brent S. Colasurdo

From Volume 84, Number 1 (November 2010)
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The doctrine of free will underlies much of the legal system in the United States. The criminal law, for instance, does not punish a person unless that individual made a choice to commit a wrongful act or otherwise had some sort of control over the wrongful behavior. This principle often arises in the context of individuals with diseases or disorders. Given that a person does not typically choose to be afflicted with a disease, and often cannot control the effects of the disease, the law cannot rightfully hold the person responsible for those effects. For instance, a criminal defendant who committed a wrongful act as a result of suffering from schizophrenia, a mental illness over which the defendant has no control, will likely be punished less severely than a non-mentally ill defendant, or not at all. Similarly, a civil defendant who crashed a car due to a sudden unforeseeable heart attack will likely not be liable for the resulting damage. Implicit in this concept is the idea that any person in the same circumstances would have done the same thing.

A legal system such as ours, built around the concept of free will, is contorted by the concept of addiction. Addicts, by definition, are unable to control their substance use. Implicit in this concept is the idea that any person who is given an addictive substance for a certain amount of time can become addicted to that substance. The law has wrestled with fitting the concept of drug addiction into the many doctrinal areas founded on the concept of free will.

 

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Taming the Paparazzi in the “Wild West”: A Look at California’s 2009 Amendment to the Anti-Paparazzi Act and a Call for Increased Privacy Protections for Celebrity Children – Note by Lauren N. Follett

From Volume 84, Number 1 (November 2010)
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With our culture’s celebrity obsession intensifying each year, it is not surprising that recent media attention has concentrated on the children of these famous faces. Unfortunately, there are currently no adequate federal or state laws in place to protect these children from being hounded by paparazzi and exploited by entertainment magazines and Web sites worldwide. This Note examines the evolution of antipaparazzi legislation and analyzes the inadequacies of current and proposed legal protections. Further, it recommends strengthening existing safeguards by creating paparazzi-free buffer zones around family-oriented areas and following international approaches to maintaining an adequate level of privacy, and consequently safety, for celebrity children. 
 

 

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