Reputational Injury Without a Reputational Attack: Addressing Negligence Claims for Pure Reputational Harm

This Note examines the unsettled relationship between defamation and negligence. The law of defamation, through the torts of libel and slander, constitutes a well-developed and complex body of state common law and constitutional considerations. However, some claims for reputational harm may fall outside of this framework, as the law of defamation does not account for all of the ways that an individual’s reputation may be injured. Thus, plaintiffs sometimes bring negligence claims to seek redress for damage to reputation. When a plaintiff brings a negligence claim for pure reputational harm, the court is faced with a variety of options for handling the claim. This Note argues that courts should adopt a multistep approach to handling such claims. The court should first determine whether the claim is communication-based or not. If it is a noncommunicative claim, it should be allowed to stand as a simple negligence claim. If, however, the claim is communication-based, it should be presumptively displaced by the torts of libel and slander

Out of the Troubles and into Rights: Protection For Gays, Lesbians, and Bisexuals in Northern Ireland Through Equality Legislation in the Belfast Agreement

Part I of this Note explores the history of LGB rights in Northern Ireland, focusing on the development of domestic equality legislation stemming from the recent peace process. Part II examines the statutory framework of this legislation, concentrating on what protections and rights it provides for sexual minorities in Northern Ireland. Part II also looks at a recent European Directive prohibiting discrimination against LGB persons in employment. Part III argues that for truly effective change to occur, LGB individuals need both policy-based and rights-based legislation encompassing the human rights principles of equality and non-discrimination. Part III further argues that the political divisions in the region ultimately hinder the drafting, passing, and effectiveness of such legislation

Patients\u27 Rights to Access their Medical Records: An Argument for Uniform Recognition of a Right of Access in the United States and Australia

This Note addresses the issue of a patient\u27s right to access her own medical records in the United States and Australia. Part I discusses the background of a right of patient access to medical records through case law in the United States. Part I gives a historical perspective on US and Australian legislation regarding access to medical records. Part II reviews commentary both for and against access in the United States and in Australia. Part II focuses on legal arguments from the recent decision concerning patient access to medical records by the Australian courts in Breen v. Williams. Further, Part II also briefly examines jurisprudence with respect to access rights in Canada and the United Kingdom. Part III argues that the United States and Australia should follow the international trend and grant access to medical records through legislation. Finally, this Note concludes that a right of access would not only be fairer to patients and improve the physician-patient relationship, but also would facilitate transnational legal actions where medical records are required but the countries\u27 laws differ on the right of access. Australia and the United States, either on the federal level or uniformly on the state level, should adopt legislation providing for a right of patient access to medical records

It Is Emphatically the Province and Duty of State Courts to Say What Tort Law Is

Following the U.S. Supreme Court’s 2011 decision in PLIVA, Inc. v. Mensing, consumers of generic prescription drugs suffering from unwarnedof side effects largely remain without an avenue of legal recourse due to their inability to sue their own manufacturers. But in the pursuit for legal redress, some generic plaintiffs have pursued a narrow window of liability by bringing failure-to-warn claims, sounding in negligence, against the manufacturer responsible for producing the brand-name equivalent of the generic drug. Such claims rest on the rationale that the sui generis federal regulatory scheme governing the prescription drug industry furnishes an inextricable nexus between the brand-name manufacturer and generic-drug user such that it generates a negligence duty of care between them. The case law on this duty question remains fractured. Until late 2017, the majority of courts confronting the duty issue ruled for the brand-name defendant and held no duty as a matter of law. However, beginning in December of 2017, two landmark decisions by the California and Massachusetts supreme courts, in support of duty, have called for a reexamination of settled case law and, accordingly, given new hope to the generic-drug user’s pursuit of legal remedy. In light of these recent developments, this Note seeks to equip future courts confronting the duty question with a functional understanding of the considerations that lie on both sides of the duty inquiry. In addition, this Note proposes a remedial position that incorporates both the policy concerns cutting against duty and the doctrinal considerations undergirding it. At its core, this Note argues that doctrine demands a duty be recognized and, further, that courts have the core institutional competence to craft tort law in ways that will avert ruinous public policy consequences. In making this argument, this Note conveys a fighting message to courts: where tort doctrine says a duty of care exists, courts should endeavor to give effect to that duty

Building on Custom: Land Tenure Policy and Economic Development in Ghana

This Note addresses the intersection of customary and statutory land law in the land tenure policy of Ghana. It argues that improving the current land tenure policy demands integration of customary land law and customary authorities into the statutory system. After describing why and how customary property practices are central to the economic viability of any property system, the Note gives a brief overview of Ghana’s customary and statutory land law. The Note concludes with specific policy suggestions about how Ghana could better draw on the strength of its customary land sector

From New London to Norwood: A Year in the Life of Eminent Domain

A little more than a year after the U.S. Supreme Court\u27s decision in Kelo v. City of New London upheld the use of eminent domain for economic development, the Ohio Supreme Court became the first state supreme court to address a factual situation raising the same issues. In City of Norwood v. Horney, the Ohio court repudiated the Kelo rationale and rejected Norwood\u27s proposed takings. Property rights advocates quickly hailed Norwood as a model for other state courts to follow in defending individual land owners from eminent domain abuse. This Note argues that Norwood\u27s holding is incoherent and does nothing to resolve the language-based quagmire that inflames the eminent domain debate. This Note instead contends that the Connecticut Supreme Court\u27s more nuanced Kelo v. City of New London opinion is a superior state court model, which better captures the necessary balance between individual property rights and urban revitalization plans involving eminent domain

A Regulatory Retreat: Energy Market Exemption from Private Anti-Manipulation Actions Under the Commodity Exchange Act

In order to facilitate greater reform in energy markets, Dodd-Frank granted the CFTC wide-ranging powers as part of the greater mandate given to the CFTC in relation to OTC-swaps and the daily derivatives trading activity in commodities futures and options markets. As a result, Dodd-Frank subjected electricity market transactions—which traditionally occur under the oversight of the Federal Energy Regulatory Commission in markets organized around independent system operators and regional transmission organizations—to the anti-manipulation prohibitions of the Commodity Exchange Act. Thus, differently from FERC’s regime, the post-Dodd-Frank statutory framework opened the way for enforcement of market discipline in electricity markets through a private right of action under Section 22 of the CEA. This development drew strong opposition from the industry, and also caused a conflict between courts and the CFTC in the interpretation of the relevant law. In October of 2016, the CFTC stepped back by issuing a final exemptive order to the participants of seven national energy markets, which constitute almost the entire U.S. wholesale electricity market. The withdrawal of the private right of action conflicts with the position previously advocated by the CFTC itself. It also raises questions about the CFTC’s use of its exemptive powers, as the removal of a statutory right through agency rulemaking may potentially be in conflict with the text and statutory purpose of the CEA as amended by Dodd-Frank. The exemption not only removes an important tool in enforcing market discipline, but also has the potential to undermine the reform efforts in the transition of U.S. energy markets to a smart grid. This Note will provide a history of the developments that have unfolded since the enactment of Dodd-Frank in relation to the availability of a private right of action under the CEA in energy markets. The Note also analyzes commonly raised arguments against the availability of a private right of action and presents the various counter-arguments

An Investigation of Interviewer Note Taking in the Field

Although a key component of a structured interview is note taking, relatively few studies have investigated the effects of note taking. To address this lack of research, we conducted a study that examined the effects of note taking in a work setting. As predicted, we found that the total number of notes taken by interviewers and the level of detail of these notes were positively related to the ratings these interviewers gave to job applicants, that interviewer ratings of applicants who were hired were predictive of their job performance ratings, and that interviewer ratings mediated the relationships between note taking and performance ratings (i.e., the number of notes and their level of detail did not have a direct effect on performance ratings). We also showed that, if uncontrolled, interviewer nesting can result in misleading conclusions about the value of taking detailed notes

Sexual Assault on College Campuses: Seeking the Appropriate Balance Between Due Process and Victim Protection

Peer sexual assault is a significant problem on American college and university campuses. On April 4, 2011, the Office for Civil Rights of the Department of Education sought to address this problem by issuing a new Dear Colleague Letter that provided enhanced guidance on how educational institutions should adjudicate such incidents. The letter has the perverse effect of complicating matters further by blurring the already fine line between victim protection and due process for the accused, and it exposes a potential liability trap for educational institutions. This Note explains why the law surrounding victim protection and due process is difficult for institutions to apply and argues that the Department of Education should produce a model judicial policy so that institutions, victims, and accused students will have more certainty in this complicated arena. In furtherance of such a policy, this Note offers specific due-process protections f or accused students that should be embraced by educational institutions and the Department of Education alike