Holding Corporate Officers Strictly Liable Under Patent and Corporate Law

Corporate officer liability doctrines under both the Patent Act and the Copyright Act diverge markedly from traditional corporate, agency, and tort law doctrines. This paper argues that current case law reflects an instinctive rejection by the courts of application of strict liability to individuals. The courts' subconscious attempts to reach liability standards and outcomes that are fault-based, rather than strict, for corporate officers have caused the courts to create sui generis liability rules that are at odds with traditional doctrine. The courts could reach similar outcomes on doctrinally sound grounds by looking explicitly at intent-based liability rules.http://deepblue.lib.umich.edu/bitstream/2027.42/107402/1/1238_Oswald.pd

The Strict Liability of Direct Patent Infringement

In 1995, the Federal Circuit summarily attached the label of strict liability to direct patent infringement, even though that term does not appear in any US Patent Act enacted in the past two centuries. The catechism of strict direct patent infringement liability is now so well engrained in patent doctrine that it is easy to lose sight of how recent the advent of this terminology is in the case law, and how troublesome application of this standard has proven, even to the Federal Circuit, which created it. The first Patent Act (1790) preceded the emergence of tort law as a distinct field of US common law (mid-1800s) by a half-century or more, and the products liability explosion of the mid-twentieth century radically altered our understanding of strict liability. The implications of this forgotten timeline are profound. Strict liability, particularly in its modern formulation, is not a neutral, descriptive term. Rather, the term evokes social policy choices and balancing considerations that may be appropriate within the case law context of products liability or abnormally dangerous activities, but which are incongruous and in apposite in the statutory context of patent law. Deeming direct patent infringement to be strict liability leads to two unanticipated and unwelcome effects. First, the adoption of the strict liability label for direct patent infringement liability improperly inflates the courts\u27 role in setting direct patent infringement liability standards and suggests--incorrectly--that patent liability is a case law construct, when in fact it is a statutory construct. Second, the strict liability label improperly shifts the focus of the patent infringement inquiry from the Patent Act\u27s protection of the plaintiff\u27s exclusive property interest in its patent right toward a value-laden examination of the social utility of the defendant\u27s conduct vis-a-vis the injury to the patent holder. Jettisoning the strict liability label for direct patent infringement would reframe the analysis and debate, moving direct patent infringement liability out of a policy framework and back toward its proper statutory setting

Scary Stories and the Limited Liability Polluter in Chapter 11

A recent high-profile bankruptcy filing by Asarco has generated numerous demands among legal commentators, policy-makers, and the media for reform of bankruptcy law, environmental law, corporate law, or perhaps all three. The concern is that the current structures of these three areas of the law permit firms to strategically use bankruptcy to inappropriately displace hundreds of millions of dollars of environmental liability onto taxpayers. However, these demands for reform are occurring in a complete absence of data about whether and to what extent inappropriate strategic use of bankruptcy in this manner actually occurs. We conducted an empirical analysis of Chapter 11 bankruptcies filed in 2004 and closed by mid-2006 to try to determine the extent to which environmental liabilities drive bankruptcy filings, with an eye to examining several questions regarding the relationship between the firm’s bankruptcy filing and its liability for environmental matters. Our findings suggest that Asarco is an atypical case and that the strategic use of chapter 11 to avoid environmental obligations is an uncommon phenomenon. We conclude with suggestions about how to improve the reporting of environmental issues in bankruptcy, and also with a cautionary note about reforming bankruptcy, environmental, or corporate law based on anecdotal, rather than empirical, evidence.http://deepblue.lib.umich.edu/bitstream/2027.42/55744/1/1097_Oswald.pd

Cornering the Quark: Investment-Backed Expectations and Economically Viable Uses in Takings Analysis

Although stressing the ad hoc, factual nature of regulatory takings analysis, the United States Supreme Court has, over time, elevated the prominence of two economic tests in its analysis. In this Article, the author criticizes the importance placed on the tests and argues that the validity of a regulation must be determined based on the legitimacy of the governmental objective and the relationship between that objective and the challenged regulation, and not on the economic impact of the regulation on the property owner. The author rejects the notion that exercises of the eminent domain power and valid exercises of the police power anchor separate ends of a single continuum. Rather, the author asserts that a valid exercise of the police power may deprive a property owner of all economic use of his or her property, and an exercise of the eminent domain power requiring compensation may leave a property owner with significant enjoyment of the rights of an owner. Accordingly, the Article urges a resurrection of police power theories in regulatory takings analysis and a refocusing on the nature of the governmental power being exercised (police or eminent domain) and the validity of that exercise

The Role of the Harm/Benefit and Average Reciprocity of Advantage Rules in a Comprehensive Takings Analysis

A regulatory taking occurs when the government does not formally exercise its power of eminent domain, but enacts a law or undertakes an action that results in a de facto taking of property for which compensation is constitutionally mandated., The United States Supreme Court has struggled for decades to determine when a land use regulation is a valid exercise of the police power (and thus not subject to the compensation requirement of the Fifth Amendment to the United States Constitution) and when such a regulation goes too far and becomes a regulatory taking. The Supreme Court has developed a number of tools to assist courts and legislatures in determining when a regulation crosses the critical line to become a compensable taking. The Court has carved out two categories of per se takings: those involving permanent physical occupation by the government and those involving deprivation of all economically productive or beneficial uses of land, pro- vided the regulated use is not a nuisance-like activity prohibited or constrained at common law. Per se takings cases are relatively rare, however, and the Court has relied primarily upon ad hoc determinations, guided by notions of justice and fairness. To aid in this complicated task of ad hoc decision making, the Court has created two tests or sets of factors to be considered. When considering as applied challenges to regulations, courts are to be guided by the three- factor test articulated in Penn Central Transportation Co. v. New York City, which examines [t]he economic impact of the regulation on the claimant..., the extent to which the regulation has interfered with distinct investment-backed expectations, [and] the character of the governmental action. Facial challenges, on the other hand, are to be decided under the two-factor analysis laid out in Agins v. Tiburon, which maintains that a regulation results in a taking if the regulation fails to advance substantially a legitimate state interest or if it denies a property owner economically viable use of the property

Secondary Liability for Intellectual Property Law Infringement in the International Arena: Framing the Dialogue

International agreements do not generally address issues of secondary liability for infringement of intellectual property law rights, and there is little international consensus on this topic, even among the major industrialized nations. National laws tend to vary considerably regarding the scope and extent of secondary liability, with U.S. tending to be more liberal with the imposition of such liability than most of its major trading partners. This lack of uniformity in secondary liability rules in the international arena makes the evaluation of infringement liability in that setting uncertain and makes it difficult for business to effectively plan international intellectual property strategies. Given the global nature of modern business activity, the time has come to open serious dialogue on the advisability of creating uniform international standards for secondary liability for infringement of intellectual property rights. Unfortunately, instead of focusing on the full panoply of situations in which secondary liability for intellectual property can occur, and the range of considerations that might affect imposition of such liability, such as notions of respondeat superior, intent, authorization, and control, the current debate has settled on the imposition of secondary liability in the peer-to-peer file-swapping arena. This narrow focus may well make it more difficult, if not impossible, to reach consensus on this important issue. By stepping back and reframing the issue in more general terms of secondary liability outside the digital environment, we can more easily contemplate important questions such as the pros and cons of imposing such liability, the situations in which such liability makes sense, and the manner in which we balance the rights of the public and goals of free trade and markets against the need to encourage innovation by protecting the rights of the innovators.http://deepblue.lib.umich.edu/bitstream/2027.42/55398/1/1094-Oswald.pd

Bifurcation of the Owner and Operator Analysis Under CERCLA: Finding Order in the Chaos of Pervasive Control

This Article focuses primarily on the liability of parent corporations under CERCLA, in part because the cases involving parent corporations raise typical types of issues in relatively uncomplicated factual circumstances. In addition, the cases involving parent corporations are plentiful enough to provide a good sample for evaluation, but limited enough to be manageable

Extended Voluntary Departure: Limiting the Attorney General\u27s Discretion in Immigration Matters

Fifteen times in the past quarter-century, the Attorney General has decreed that aliens of certain nationalities could temporarily remain in the United States regardless of their visa status. Government officials have characterized these grants of blanket extended voluntary departure (EVD) as a means of protecting aliens from life-threatening conditions in their homelands. The Attorney General\u27s actions were apparently undertaken for humanitarian reasons and went largely unnoticed by the public. Part I of this Note defines EVD and distinguishes it from related forms of deportation relief. Part II describes the Employees Union court\u27s holding. The evolution of American perceptions of immigration law is laid out in Part III and the concept of communitarianism is explored. Part IV investigates the source of EVD and concludes that EVD arises not from the discretionary enforcement of the immigration laws, but from the voluntary departure provisions of the Immigration and Nationality Act of 1952 (INA). Thus, Part V finds that EVD determinations should be subject to narrow judicial review for abuse of discretion under the Administrative Procedure Act (APA) and urges that a reasons requirement be imposed on the Attorney General. Part VI concludes by integrating EVD into the communitarian model