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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
Prescription for Failure: Public Nuisance Claims Against the Opioid Industry
Opioids have been used both medicinally and recreationally since ancient times. While their recreational functions have long since been denounced, their medicinal value remains legitimate. Yet, since the pain management revolution began in the mid-1990s, many Americans have become opioid-dependent—fueling an illicit drug market and costing many lives. The tragedy that is today’s opioid epidemic has prompted robust federal and state legislative and regulatory interventions in both the legal and illicit opioid markets—albeit with mixed success. As these initiatives have been slow to quell the opioid crisis, public nuisance claims have taken center stage. After the Big Tobacco litigation invoked the common law doctrine and ultimately resulted in the historic Master Settlement Agreement, public nuisance captured the attention of state governmental entities in the firearm and lead paint industries. Those litigations produced varying results among the states. While some courts properly rejected the novel application of public nuisance to the manufacture, sale, and distribution of lawful products, others permitted claims to survive past the motion to dismiss stage, prompting product manufacturers, distributors, and retailers to agree to exorbitant settlements. Perhaps unsurprisingly then, the legal theory has gained popularity in claims against deep-pocketed opioid industry actors. However, like the tobacco, firearm, and lead paint industries, public nuisance does not fit within the historically recognized definition of public nuisance, which has long been understood as being limited to unlawful activities and real property contexts.
In addition to being, at best, unorthodox and novel, and at worst, legally deficient and unsupported by history and precedent, public nuisance is a poor vehicle to address a national, highly political problem—particularly in the legal prescription drug market, which touts many benefits and is already heavily regulated by the duly elected members of the legislative and executive branches of government
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
Restoring the Soul to Birthing in Miami: A Call for Justice for Obstetric Racism in Miami–Dade County
For far too many Black mothers and birthing people, U.S. hospitals are dangerous and fail to keep our Black mothers and birthing people and their babies safe, alive, and thriving during and after childbirth. The confluence of medical racism and obstetric violence—obstetric racism—leads to a disproportionate rate of predictable, preventable, and unfair death, sickness, and trauma for Black birthing people and babies in the afterlife of slavery. Obstetric racism, as defined by Davis, is both an analytic and phenomenon that describes mechanisms of subordination, control, and dominance to which Black mothers and birthing people are subjected by health systems and health professionals, that track along histories of anti–Black racism and eugenics.1 Obstetric racism defines values, and shapes beliefs, practices, behaviors, policies, procedures, processes, and programs imposed against Black mothers and birthing people that manifest in one of six ways: neglect, disrespect, and dismissiveness; diagnostic lapses; ceremonies of degradation; medical abuse; coercion; intentionally causing pain. In contrast to the profound psychospiritual birthing experience they desire and deserve, Black birthing people often face abuse, disrespect, and coercion during childbirth, with dire, long–lasting consequences for their entire families. Significantly, these health inequities exist regardless of advances in reproductive technology, implementation of traditional patient safety bundles, and their socioeconomic and educational status. After nearly dying giving birth in a Miami hospital, one Black mother shared: “I will never in my life give birth in Miami–Dade County agai