How Safe Is Safe Enough? Analyzing the Incentive Structure of the Products Liability Scheme on Commercial Aviation Manufacturers

How do aviation manufacturers work to prevent tragedy? After tragedy strikes, how does the legal system’s imposition of a remedy change the operations and decision-making of these manufacturers, if at all? This Note explores whether the current products liability framework effectively achieves the goals of tort law—including whether it deters unsafe innovation in the high-risk commercial aviation manufacturing industry. The Note explores these topics through the lens of the recent Boeing 737 Max disasters of 2018 and 2019, using such disasters to exemplify the skewed incentive structure that manufacturers face in the modern products liability tort system. This Note argues that the current tort system does not adequately deter manufacturers from innovating their products in a way that sacrifices safety for profit. It critiques the negligence standard as applied to aviation manufacturing, discussing whether the deterrent goal of tort law could be better served by a strict liability standard for manufacturers in design defect cases, and advocates for policy changes that could help to strike the right balance between progress and accountability in aviation technology

Pretrial Decision-Making in Brazil under Inter-American Human Rights Law

In recent decades, pretrial detention has been a key contributor to Brazil’s mass incarceration. This is true, despite domestic and international norms limiting pretrial detention to exceptional circumstances and mounting evidence linking it to worse outcomes for arrestees in their criminal proceedings and post-release life prospects. As a longitudinal multivariate pretrial research in Brazil, this Article investigates the key mechanisms and factors that explain pretrial detention in relation to inter-American human rights standards. This Article conducts a quantitative case study of the first one hundred days of detention for all 2,158 non-confidential flagrant arrests in the first eight months of 2016 reviewed by the state courts of Campo Grande, the capital city of the midwestern state of Mato Grosso do Sul. The findings offer a grim picture of a non-exceptional use of pretrial detention, mostly through orders issued by bail hearing judges denying release based on public order rationales (incapacitation and anticipated punishment). Additionally, these findings show consistently high judge-specific rates of denial of release. Reasons for the high number of pretrial detention also include outright illegal denials of release, the long duration of orders denying release, and instances where denial of release is disproportionate to a case’s ultimate outcome. Release by bail was found to be an insignificant pathway to pretrial detention. The increased severity of an arrestee’s offense and adult and juvenile records revealed a strong link to a worse pretrial status. The magnitude of these effects, combined with evidence that judges tend to rely on the latter factors to assess public order grounds for denial of release, reinforces concerns over abusive detention orders. Lastly, this Article makes proposals that target the Brazilian pretrial regulation, the culture of key judicial actors, and the structure underlying pretrial decision-making

The Form Knows Best

Law students learn that contracts are carefully negotiated, precisely drafted, and shaped by doctrine. But lawyers tell a different story. This article compares six pillars of contract law with what we heard in over 170 interviews with senior transactional lawyers across M&A, sovereign bonds, and leveraged loans. The result is a gap between the Official Story taught in classrooms and the Unofficial Story told by practitioners—where boilerplate dominates, case law is rarely consulted, and market custom often prevails over efficient design. We suggest that many contract provisions are better understood as historical artifacts: products of inherited forms and production pressure. Or, as one lawyer put it, more Mars Bar than masterpiece. That gap may matter, especially when courts often interpret form as if it reflects intent

Flaws in the Preemption Defense to Liability Claims Against Generic Drug Manufacturers

More than a dozen years have passed since the U.S. Supreme Court decided that federal preemption protects manufacturers of generic (but not brand-name) drugs from most types of products liability claims. This seemingly arbitrary distinction sprang from a peculiarity in the regulations of the U.S. Food and Drug Administration (FDA). That agency soon thereafter proposed to modify its rules in order to eliminate this asymmetry in how the implied preemption defense worked to bar inadequate warning claims, but its effort ultimately failed, while lower courts have confronted some creative efforts to circumvent the special protection enjoyed by generic drug manufacturers. In their rush to criticize the Court for its uneven application of the Supremacy Clause in these cases, commentators have failed to notice that the whole edifice sprang from basic misconceptions about the operation and interplay of tort doctrine and FDA rules. A proper appreciation of these details reveals just how flimsy a case exists for continuing to recognize this particular version of the federal preemption defense to strict products liability claims

Starstruck: The Superstar CEO Concept in Delaware Corporate Jurisprudence

The rise of the Superstar CEO—an individual who directors, investors, and markets believe makes a unique contribution to a company’s value—challenges traditional corporate governance norms by blurring the line between visionary leadership and unchecked power. This concept recently made its jurisprudential debut in Tornetta v. Musk, where the Delaware Court of Chancery found that the unique dynamics of Elon Musk’s influence over Tesla allowed him to exercise transaction-specific control over his compensation grant. This Article closely examines how the concept was used in Tornetta in an attempt to unveil how the Superstar CEO concept could be interpreted in future decisions as a common law doctrine. It proposes two possible interpretations, demonstrating the wide precedential impact the concept could have on Delaware’s controlling shareholder doctrine, standard for director independence, and corporate jurisprudence as a whole