The willful blindness doctrine at criminal law is well-established and generally fits with moral intuitions of guilt. It also stands in direct tension with the first principle of American criminal law: legality. This Article argues that courts could largely preserve the doctrine and entirely avoid the legality problem with a simple shift: willful blindness ought to be re-conceptualized as a form of evidence.
The balance between free speech and access to courts in defamation tort actions is fraught with public policy concerns. On one hand, plaintiffs should have unencumbered access to the justice system to remedy real harms brought upon them by defamatory statements. However, defamation suits should not be wielded to suppress the constitutionally protected free speech rights of news organizations and of concerned citizens that are vital for well-functioning democracies. This Article argues for a new type of remedy, namely enhanced Rule 11 attorney sanctions, such as suspension or debarment, that should be available to defendants of defamation suits brought by repeat players that use “cookie cutter” complaints. This Article specifically proposes a novel four-part test implicating use of attorney sanctions as a remedy for filing niche types of frivolous lawsuits. Per this test, a court should weigh the following factors to determine if such sanctions are warranted: (1) if the plaintiff habitually files and loses defamation-type suits to prevent protected free speech; (2) the nature of the defendant, especially if the defendant is a news organization; (3) the proportionality of the damages requested, and; (4) if a countersuit is at issue. In this Article, we examine a case study in the form of a decades’ long frivolous litigation pattern exhibited by Murray Energy and Robert-Murray-as-CEO. Murray Energy has been characterized as the single largest privately owned coal corporation in the United States, and thus constitutes a prominent actor well-suited for assessing the potential strengths and weaknesses of developing this new remedy. We ultimately conclude that enhanced Rule 11 attorney sanctions, as weighed and levied vis-a-vis the proffered test, could constitute a potentially potent deterrent to frivolous lawsuits designed to inhibit the free speech of the press and of concerned citizens—which indeed occupy a crucial watchdog role in healthy democracies.
Large beer manufacturers, known colloquially as “Big Beer,” have been steadily losing market share to small, independent craft breweries. Big Beer wants its market share back, and in some cases will go to great lengths to try to defend its dominance—even anticompetitive conduct. Below-cost pricing is one avenue that presents a risk to independent craft breweries. This article examines how Big Beer can manipulate the beer market in its favor by engaging in predatory pricing. Further, this article proposes a solution that could be implemented on a nation-wide scale to curtail Big Beer’s anticompetitive activities with respect to pricing.
Judges regularly espouse dicta. Traditional obiter dicta, remarks that are clearly asides and not about issues considered in the case, can be easily ignored by subsequent courts. But one particular form of dicta is particularly problematic because it is more difficult to ignore. Judicial efficiency dicta are statements in judicial opinions about issues involved in the case and likely to present themselves again, but not necessary for the outcome of the case. While those statements are often about issues actually considered and may contribute to judicial efficiency by saving courts time when reconsidering issues already litigated, just like obiter dicta, judicial efficiency dicta exceeds courts’ authority and is more likely than actual case holdings to be incorrect. Unlike obiter dicta, however, judicial efficiency dicta is difficult to identify. And most significantly, this particular form of dicta is more likely to be followed by subsequent courts, essentially being elevated to the position of holdings. Because it is more likely to become binding and cut off the natural development of the law, this “preemptive dicta” presents a significant concern.
Goodridge v. Department of Public Health was the first state supreme court decision to legalize same-sex marriage in the United States. This Article draws upon social movement theory in the field of communication to examine how the Massachusetts Supreme Judicial Court played a leading role from within the establishment in furthering the social movement for same-sex marriage in the United States. The Article looks at the various opinions in Goodridge v. Department of Public Health, as well as those in Opinions of the Justices to the Senate, the Court’s responses to the Massachusetts Senate’s request for an advisory opinion on providing civil unions but not marriage to sexual minorities, to see how the members of the Court, closely divided four votes to three in both sets of opinions, constructed or refrained from constructing marriage as a right that should be available to sexual minorities. The Article proceeds by offering a brief note on social movement theory in communication; examining the various opinions in Goodridge, including the controlling opinion, a concurring opinion, and three dissenting opinions; and reviewing the ensuing advisory opinions, including the majority opinion and the two dissenting opinions. This discussion should contribute toward a greater understanding of state supreme court rhetoric of social change and also offer some refinement of social movement theory, particularly regarding how a faction within a fractured establishment can further a social movement.
In "Consentability," Nancy Kim tackles an important and current topic—in an age of increasing options about how to live, die, and procreate, what limits, if any, should the law place on those choices? "Consentability" is a valuable resource for scholars and policymakers alike, summarizing the arguments for and against government intrusion on the choices of consenting adults with encyclopedic thoroughness. After weighing the arguments, Kim proposes that “bodily integrity exchanges” be permitted, subject to limitations. Although we agree with the general conclusion that bodily integrity exchanges should be permitted, we disagree with the specific limitations that treat the decisions of the poor as suspect, proposing instead methods of structuring payments and the consent process that would enhance the decision-making quality and reduce the possibility of impulsive decisions for all donors— not just those meeting an arbitrary definition of poverty. In any event, when it comes to a life-saving transaction like kidney donation, it is ethically important to consider the welfare of the recipient as well as the donor.
This symposium discussion of the Loyola of Los Angeles Law Review focuses on the newly enacted California Consumer Privacy Act (CPPA), a statute signed into state law by then-Governor Jerry Brown on June 28, 2018 and effective as of January 1, 2020. The panel was held on February 20, 2020. The panelists discuss how businesses are responding to the new law and obstacles for consumers to make effective use of the law’s protections and rights. Most importantly, the panelists grapple with questions courts are likely to have to address, including the definition of personal information under the CCPA, the application of the CCPA to different types of internet service providers and companies, and compatibility between First Amendment concerns and the privacy protections offered by the CCPA.
From movements for civil rights in the 1960s and protection in the 1970s, the movement emerged in the 1980s and 1990s to highlight the disparate impacts of pollution, principally upon people of color and low-income communities. Over time, the scope of expanded to address concerns for other dimensions of diversity. New and continuing challenges tell us that we need to reframe our understanding of to ensure better protection for people going forward. One way to reframe this understanding may be to apply the heuristic of vulnerability analysis as proposed by legal theorist Martha Fineman and subsequent scholars. Starting from recognition that vulnerability is inherent in the human condition, vulnerability theory has already been explored in a variety of contexts but has yet to be fully investigated as a means for reframing for future application. This article urges further consideration of vulnerability theory in the context. It specifically proposes a new definition of environmental justice to incorporate vulnerability theory in order to assist policymakers and community advocates with identifying the people most at risk from hazards and most in need of attention to protect their health and safety.
