Abstract: THE RISE OF THE UNCORPORATION CHAPTER 1: INTRODUCTION WHY STUDY UNCORPORATIONS? UNCORPORATIONS IN THE ECONOMY DO BUSINESS ASSOCIATIONS MATTER? THEORIES OF THE UNCORPORATION COMPETITION AND BUSINESS FORMS THE US AND AROUND THE WORLD THE PLOT OF THE BOOK CHAPTER 2: THEORETICAL CONSIDERATIONS WHY FIRMS? GOVERNING FIRMS WHY BUSINESS ASSOCIATIONS? WHY BUSINESS ASSOCIATION LAW WHY DIFFERENT BUSINESS ASSOCIATIONS? THE ARCHITECTURE OF BUSINESS ASSOCIATION STATUTES THE EVOLUTION OF BUSINESS ASSOCIATIONS THE CORPORATION AND UNCORPORATION CHAPTER 3: PARTNERSHIP EARLY HISTORY THE NATURE OF PARTNERSHIP OF PARTNERSHIP: ENTITY OR AGGREGATE? VICARIOUS LIABILITY OWNERS' FINANCIAL RIGHTS MANAGEMENT FIDUCIARY DUTIES AND REMEDIES TRANSFERRING RIGHTS EXIT FORMATION LIMITED PARTNERSHIPS JOINT STOCK COMPANIES AND LIMITED PARTNERSHIP ASSOCIATIONS CHAPTER 4: THE RISE OF THE CORPORATION CORPORATE FEATURES AND LARGE FIRMS COULD PARTNERSHIPS HAVE ADOPTED CORPORATE FEATURES? LIMITED LIABILITY WITHOUT INCORPORATION THE CORPORATION AND THE REGULATION OF GOVERNANCE INTERNATIONAL COMPARISONS CHAPTER 5: THE PROBLEMS OF THE CLOSE CORPORATION LIMITED LIABILITY AND THE CLOSELY HELD FIRM LOCK-IN OTHER CORPORATE RULES THE CORPORATE TAX: THE PRICE OF LIMITED LIABILITY OTHER ROADBLOCKS TO PARTNERSHIPS WITH LIMITED LIABILITY THE CLOSE CORPORATION AS EVOLUTIONARY DEAD END DENIAL JUDICIAL ACCEPTANCE TAX ACCOMMODATION OF THE CLOSELY HELD CORPORATION FULL STATUTORY AUTHORIZATION OF CLOSE CORPORATIONS FAILURE CHAPTER 6: THE EVOLUTION OF THE MODERN UNCORPORATION THE LLC REVOLUTION THE UNCORPORATION DEVELOPS THE IMPORTANCE OF NON-ORGANIZATION LAW THE REST OF THE UNCORPORATION MENAGERIE THE EVOLVING LLC EUROPEAN DEVELOPMENTS CHAPTER 7: THE MODERN UNCORPORATION MEMBER SHIELDING: LIMITED LIABILITY MANAGEMENT MEMBERS' FINANCIAL RIGHTS FIDUCIARY DUTIES: GENERAL PRINCIPLES FIDUCIARY DUTIES IN SPECIFIC BUSINESS ASSOCIATIONS DISSOCIATION AND DISSOLUTION TRANSFERRING INTERESTS TAXES, REGULATION AND BUSINESS ASSOCIATION DESIGN CHAPTER 8: UNCORPORATING THE LARGE FIRM THE TROUBLES WITH CORPORATE GOVERNANCE INCENTIVES AND DISCIPLINE IN THE LARGE UNCORPORATION UNCORPORATE UNGOVERNANCE EXAMPLES OF UNCORPORATE GOVERNANCE OF LARGE FIRMS WHY UNCORPORATE NOW? THE FUTURE OF THE LARGE UNCORPORATION CHAPTER 9: NEW DIRECTIONS CONVERGENCE OR DIVERGENCE OF BUSINESS FORMS THE LONG-TERM FUTURE OF THE UNCORPORATION THE UNCORPORATION AND MANDATORY RULES TOWARD THE DISAPPEARANCE OF THE CLOSE CORPORATION? THE FUTURE OF THE BUSINESS ASSOCIATION WHY THE UNCORPORATION MATTERS

Abstract: The intervention of an insurer to criminal proceedings concerns the insurer of the victim, of the defendant or of the civilement responsable (i.e. the person legally responsible for the defendant’s deeds under vicarious liability). The insurer intervenes as a person who may guarantee compensation of the losses arising from the offence. Then the insurer takes part to the civil action (action civile, i.e. the claim for compensation brought before the criminal court, who is competent regarding this action in France), rather than to criminal proceedings which is first about criminal prosecutions (action publique) and also possibly about civil action. The issue of intervention of insurer to criminal proceedings is strongly related to the issue of the civil action brought before a criminal court. Under French law, principle is that insurers are not allowed to intervene to criminal proceedings, according to a case law established on the basis of provisions of French Criminal Proceedings Code (especially Article 2). However, the Law of 8th July 1983 inserted in the said Code provisions allowing insurer’s intervention, in a limited way regarding the scope of the intervention as well as its aim and effects. This system reveals the conception of civil action prevailing in France. As a matter of fact, these solutions deserve a critical examination. A critical analysis of intervention of insurer to criminal proceedings shall be operated through a renewal of the analysis of civil action. This way we may consider successively the principle of the participation of insurer to the debates before criminal court and the rules of the intervention of insurer to the civil action, in order to find more simple and more efficient solutions.

Abstract: In 1998, Congress added Section 512 to the US Copyright Act, creating a set of safe harbors that protect online service providers (OSPs), under certain conditions, from liability for copyright infringement that might occur in the course of specified online activities Some commentators have viewed two of these safe harbors, sections 512(c) and 512(d), as departing from the ordinary copyright regime by protecting OSPs from claims of direct infringement by the OSP itself, but following the ordinary copyright regime by allowing secondary liability claims against an OSP for infringements committed by users of the OSP’s services This Article suggests that this view is not entirely accurate Part I suggests that the safe harbors’ statutory protection for OSPs against direct infringement claims may not be particularly significant, because ongoing judicial development applying copyright law to conduct unprotected by the safe harbors suggests that an OSP’s potential direct infringement liability for its routine functions may not be particularly great Part II compares the elements of common law copyright claims for contributory infringement and vicarious liability with the provisions of sections 512(c) and 512(d) that disqualify an OSP from a safe harbor based either on its level of knowledge about, or control over, a user’s infringing activity Although the conditions that an OSP must meet to qualify for these safe harbors closely parallel the elements of the common law secondary liability claims, they differ in subtle but important ways As a result, in some instances the safe harbors will insulate an OSP from secondary liability claims that would, in the absence of section 512, succeed The Article therefore concludes that the section 512 safe harbors may be more valuable to OSPs facing secondary liability claims than they initially appear, and less valuable to those facing direct infringement claims

Abstract: Due to the historical arrangement between Church and State, the Irish State has always discharged its duty to provide for free primary education exclusively through the provision of funding to privately owned and managed schools. Consequently, in O'Keeffe v. Hickey, where a woman sued the State in respect of sex abuse she suffered when in school, the Supreme Court held that on ordinary tort law principles of vicarious liability, primary school teachers are employed by the individual school and not by the State. Consequently, the State bears no liability for torts committed by teachers in the course of their employment. Moreover, the court expressed doubt as to whether such abuse could be considered to occur within the course of employment for the purposes of vicarious liability. This article examines this case from the perspective of the obligations of the State under the Irish Constitution and the European Convention on Human Rights. It argues that viewed globally, these obligations do not allow the Stat...

Abstract: I. INTRODUCTION II. GAAP AND MATERIALITY A. Financial Statements and GAAP B. Materiality. The Shift from a Quantitative to Qualitative Standard C. Mapping the Liability Framework 1. Liability Under a Quantitative Standard 2. Liability Under a Qualitative Standard 3. Effect on Pre-Trial Motions 4. Summary III. VALUING FINANCIAL MISSTATEMENTS A. Valuation Methods 1. Market Price 2. Fundamental Analysis B. The Case for Assessing Financial Misstatements Using Fundamental Analysis IV. PERSISTENCE A. Illustration Using Fundamental Analysis 1. Persistent Misstatements a. Earnings Inflation b. Hiding Earnings Decline c. One-Time Charge to Earnings 2. Isolated Misstatements a. Earnings Smoothing b. One-Time Misstatement B. Objections 1. Market Psychology and Isolated Misstatements 2. Managerial Abuse C. Persistence as a Presumption in Assessing the Materiality of Financial Misstatements V. TARGETED VICARIOUS LIABILITY FOR FINANCIAL MISSTATEMENTS A. Distinguishing Types of Accounting Fraud 1. Large Scale Accounting Fraud 2. Small Scale Accounting Fraud B. The Vicarious Liability Debate 1. Criticisms of Vicarious Liability 2. Defending Vicarious Liability for Financial Misstatements C. A Refined Vicarious Liability Standard 1. Companies a. Quantitatively Large Misstatements b. Quantitatively Small Misstatements 2. Individual Managers 3. Benefits VI. IMPLEMENTATION VII. CONCLUSION I. INTRODUCTION The regulation of financial reporting by public companies is principally shaped by two considerations: accuracy and cost. If financial reports are inaccurate, stock prices may not reflect the underlying economic value of companies. But because of the complexity of public companies, as well as the ambiguity of the generally accepted accounting principles (GAAP) with which financial statements must conform, it is expensive to ensure that the accounting for every transaction is appropriate. The law attempts to balance such concerns by making securities fraud liability contingent on a showing of materiality. (1) A financial misstatement can only trigger liability if it is material, or important to a reasonable investor. (2) The materiality standard should thus play a crucial role in screening out trivial from substantial financial misstatements, making the potential liability companies face for inaccuracies in their financial statements manageable. (3) But there is little consensus as to what a reasonable investor would consider important with respect to financial misstatements. The current approach, which has been described as qualitative, considers a wide range of factors and has been criticized as nebulous. (4) On February 8, 2008, a Securities and Exchange Commission (SEC) Commissioner pointed out the need to "clear up [the issue of materiality] with the full input of the investor, legal, accounting, academic, and business communities." (5) While numerous proposals for reforming securities class actions have recently been made, none has focused on clarifying the materiality standard. (6) This Article attempts to provide a clearer and more rational basis for assessing materiality with respect to financial misstatements. (7) At the outset, it is important to distinguish between financial misstatements, which are the focus of this Article, and nonfinancial misstatements. This Article's analysis is limited to financial misstatements, or misstatements in a company's financial reports. Though financial and nonfinancial misstatements are generally governed by the same reasonable investor standard, financial misstatements are more susceptible to scrutiny through quantitative benchmarks than nonfinancial misstatements. For a time, materiality with respect to financial misstatements was arguably defined by a rule-like quantitative standard. …

Abstract: Scienter is an essential element of a securities-fraud action brought by the Securities and Exchange Commission (“SEC”) or private plaintiffs. Scienter generally refers to intent or knowledge of wrongdoing. Establishing scienter in a case against an individual is accomplished by pleading and proving the requisite mental state of the individual at the time he or she committed the wrongful act, usually a material misstatement or omission. Establishing scienter for a corporation, however, is more complex. A corporation is a legal artifice that does not think and cannot act on its own, although it has a legal status distinct from its shareholders and agents. A corporation acts solely through its agents. As a result, doctrines such as respondeat superior have evolved to impute the knowledge of an agent-wrongdoer to the corporation in order to hold a corporation liable for securities fraud. Courts agree that a corporate defendant acted with scienter if the authorized corporate agent making a false statement acted with scienter. The more difficult question is whether a corporation can be held liable for securities fraud when the person responsible for the misstatement was not aware of the truth but some other corporate employee was aware, or when no single corporate employee knew the truth, but the collective knowledge of several employees would have exposed the truth. For example, if a corporate officer makes a statement and only an entry-level employee knows the statement is false, has the corporation acted with fraudulent intent? Furthermore, if a corporate officer makes a statement and no individual knows the statement is false, but by piecing together the collective knowledge of employees it becomes apparent that the statement is false, has the corporation acted with fraudulent intent? In recent years, some private plaintiffs have resorted to a theory known as “collective scienter” to attach corporate liability on the basis of the collective knowledge of the corporation’s employees, regardless of whether those employees had any role in making the alleged false statements. While most courts have rejected the collective scienter theory, a handful of courts have permitted some derivation of collective scienter. All of the judicial decisions in the area of collective scienter involve private securities litigation. Because it is extremely rare for a corporation to litigate with the SEC, the question of whether the SEC can and should utilize the theory of collective scienter in its enforcement actions against public companies remains unanswered. Although the SEC has never explicitly asserted a collective scienter theory, some commentators have opined that the theory may have been contemplated, if not utilized, by the agency in one SEC enforcement action. This Article initially describes the development of the concept of corporate liability from the theory of respondent superior to collective scienter, and explains the various views espoused by courts. The Article then examines SEC enforcement actions that implicitly may have used collective scienter in reaching a settlement with a company. Finally, the Article highlights some legal and policy considerations associated with utilizing the concept of collective scienter in SEC enforcement actions. As discussed below, the SEC should avoid resorting to collective scienter in its enforcement actions because collective scienter would impose a negligence standard in conflict with other laws, chill corporations from voluntarily disclosing information, create inefficient deterrence and misplaced incentives, and would not provide sufficient notice and predictability to corporations regarding charges or penalties.

Abstract: Third-party copyright liability raises specific First Amendment problems that remain relatively unexplored. Among other things, such liability separates the danger of liability from the benefits of speaking, making key actors prone to careless censorship of speech. This Article applies the First Amendment to third-party copyright liability by drawing lessons from the famous cases of New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc. It concludes that vicarious liability should be sharply curtailed, and that the application of presumed damages is constitutionally problematic in many contributory liability cases.

Abstract: In Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., the Supreme Court clearly expressed its understanding that the common law of tort provides the foundation for third party copyright liability. Grokster did not, however, offer a complete account of how tort law defines guides the application of third party copyright liability. Accordingly, lower courts now face the challenges of filling in the details that Grokster left out. This Article examines two recent, closely followed opinions that apply tort law to the problem of third party copyright liability, Perfect 10 v. Amazon and Perfect 10 v. Visa. It makes sense to study Amazon and Visa because they involved large, high profile businesses whose primary services simultaneously supported infringing and noninfringing behavior. In Amazon, the plaintiff Perfect 10 (copyright holder in a number of photographic images) sued Google because Google's search engine helped Internet users find and view infringing copies of the plaintiff's photographs. In Visa, Perfect 10 sued credit card companies for processing credit card payments on behalf of websites that charged users to view infringing images. Claims like these are both plausible and problematic. The scope of copyright infringement on the Internet is significant. It is arguably wrong for businesses to profit from assistance provided to illegal activities. Furthermore, if Google and Visa withdrew that assistance, the incidence of copyright infringement would presumably decrease. At the same time, however, it is perhaps unfair to hold a business liable for supporting the infringement of others when the business did not act with the specific purpose of supporting infringement. Moreover, it may be socially undesirable to impose liability on these businesses for two reasons. First, attempts to stop infringement may be very costly and ineffective. Second, while liability may force entities like Google and Visa to withdraw their services from those who have committed infringement, liability might also result in withdrawing services from those who have not infringed. Society must therefore balance the potential benefits of third party copyright liability against its associated costs. Amazon and Visa try to integrate third party copyright liability and tort law, but with only modest success. Two problems share the blame. First, the doctrinal formulations of third party copyright liability do not map cleanly onto tort law. Accordingly, those formulations can easily distract courts from the considerations most relevant to tort. Second, although both opinions acknowledge the importance of tort law to the construction of third party copyright liability, they pay insufficient attention to the overall structure of tort, distinctions between basic types of tort actions, and the reasons for those distinctions. This robs Amazon and Visa of truly cogent explanations for their results. This Article proceeds in four parts. Part I describes the general problem of third party copyright liability and applies tort law to it without regard to existing copyright doctrine. Part II lays out the present doctrinal formulations of third party copyright liability, namely inducement, contributory liability, and vicarious liability. Part II then explains how these formulations correspond to the overall structure of tort and describes areas of possible confusion. Part III uses Parts I and II to analyze Amazon and Visa. It shows how those opinions struggle to make sense of third party copyright liability's doctrinal formulations in light of tort and how more attention to the overall structure of tort could have improved the opinions. Part IV concludes by arguing that future decisions will more effectively apply tort to third party copyright liability if courts must significantly rework third party copyright liability's doctrinal formulations or their interpretation.

Abstract: I. Loss Prevention The Objective for Security and Safety Disaster Defined Loss Prevention: Safety and Security Defined The Role of the Loss-Prevention Manager The Necessary Attributes of a Loss-Prevention Manager The Emergency Procedure Plan Emergency Planning The Emergency Response Team Protective and Emergency Equipment In Summary II. Specific Threats and Emergencies Threat Assessment Critical Business Threats That Cause Emergency Situations Terrorism Terrorism Defined Public Awareness Combating Terrorism Assessment Types of Terrorist Incidents Targets of the Terrorist Weapons of Mass Destruction of the First Class Threat of an ABC Attack Atomic (Nuclear and Radiological) Attack Biological Attack Chemical Attack Weapons of Mass Destruction of the Second Class Bombs, Bomb Types, and Their Effectiveness Public Awareness Assessment Bombs and Bomb Threats The Warning Building Explosion Threat Analysis Suspicious Packages and Mailings Evacuations Claimed Responsibility for the Detonation of the Device Other Serious Emergencies That Can Become a Disaster Sabotage Industrial Espionage Computer Theft and Sabotage Emergence of Cyber Terrorism Cyber Criminal and Terrorist Activity The Protection of Proprietary Information IT Security Intellectual Property - Intrusion and Safety Precautions: Patents, Trademarks, Copyright, and Trade Secrets Protection from Loss The Four Deadly Security Sins III. Natural, Accidental, and Intentional Occurrences Man-Made Disasters and Catastrophes Haphazard and Unplanned Disasters Natural and Common Environmental Occurrences Pandemic Earthquakes and Volcanic Eruption Tornadoes Hurricanes Excessive Rain, Snow, and Blizzards Coastal Flooding Global Warming Accidental, Intentional, or Unintentional Acts Wildfire Fire: Natural, Accidental, and Arson Gas Leaks Chemical Spills Human Events Public Events Accidental Occurrences and Medical Emergencies Infectious and Health Hazards Bloodborne Pathogens Hazards in the Workplace Hazardous Materials Chemical and Toxic Spills Prevention Fire Science and Fire Classification Fire Science and Classification Defined Fire Emergency The Effect of Fire upon People The Fire Command Station Fire Extinguishers and Hardware Fire Strategy and Training Fire Safety Procedures and Guidelines The Fire Safety Director Assignment and Responsibilities of Safety Personnel IV. The Disaster Management Process Introduction Business Disruption Command Structure Operational Objectives Disaster Preparedness Considerations Pre-Incident Planning and Assignment of Responsibility Disaster Management of the Incident Identification and Evaluation Outline for Risk Determination and Evaluation Training Assessment Drills and Inspections Response and Control of the Incident The Response Process The Stabilization Process Considerations and Post Planning Recovery and Restoration of Services The ANSIR Program National Security Threat List Larceny and Liability Concerns during Emergencies The Media: Cautions and Controls V. Terrorism and Violence Control and Prevention Violence in the Workplace Workplace Violence Defined OSHA Categories of Violence Workplace Violence: A Perspective Specific Acts of Violence Effect of Violence on the Workplace Causes of Violence Characteristics of Persons Who Commit Acts of Violence in the Workplace Abnormal Behavior Evaluating the Threat Increasing the Level of Safety in the Workplace Legal Pitfalls and Responsibilities Policies and Procedures The Documentation of Poor Performance or Abnormal Behavior The Responsibility of the Loss-Prevention Department Investigation, Evaluation, and Documentation Records and Reports Strikes Defined Picket Actions: Lawful and Unlawful Accepted Business Practices Civil Disturbances Building Security and Access Control Prevention Strategies VI. Familiarization with Criminal and Civil Litigation Introduction Awareness The Application of Criminal or Civil Law Criminal Law Criminal Liability Liability of Corporations Civil Law The Question of Foreseeability Civil Liability Basis for the Lawsuit Liability Contemplated Criminal and Civil Liability and its Effect on Loss-Prevention Personnel Premises Liability The Question of Security Negligence The Invitee The Licensee The Trespasser Vicarious Liability Defined Defense by a Company in a Lawsuit Product Liability Product Liability Defined Contractual Liability Contract Law The Criminal and Civil Litigation Process Pre-Litigation Litigation Privacy Rights and Civil Rights Violations Violation of Civil Rights The Civil Rights Act of 1964 The "Color of State Law" Sexual Harassment The Americans with Disability Act (ADA) The Invasion of Privacy and Defamation The Right to Privacy Covert Surveillance Wiretaps and Telephone Recordings Defamation: Libel and Slander Lawful Search of the Person Employee Searches Incident Investigation Control of the Scene Accident Investigation and Insurance Fraud Appendix A Emergency Procedures - Summarized Basics of Disaster Management Civil Disorder Procedures Workplace Violence - Mediation and Conflict Resolution Evaluation of Bomb Threat Credibility Bomb Threat Procedures and Search Techniques The Fire Safety Plan - Summarized Atomic, Biological, and Chemical Weapons Defined Environmental Effects Considered Appendix B Training in Security and Safety The Safety Committee The Bloodborne Pathogen Act, Hazard Communication Act, and Hepatitis Clarified Glossary Bibliography Endnotes Epilogue Homeland Security The Homeland Security Advisory System Web Sites

Abstract: With reference to the liability of public employees, Spanish Law seems a troubling puzzle. Under State basic law, Public Administrations are exclusively and vicariously liable for torts committed by their agents whitin the scope of their employment. Under Criminal Code, on the contrary, victims of crimes committed by public agents have the right to directly demand damages from those offenders, bringing their tort claims within the criminal procedure. Under State basic law, Spanish Public Administrations may —and even have to— require compensation from their employees who negligently injured the aforementioned Administrations or caused damages, thus giving rise to vicarious liability, but in fact they have almost never required that compensation. These Administrations, on the contrary, usually demand damages when their agents have violated certain statutes regulating public finances. After analyzing the social costs and benefits of the considered alternatives, the author expresses the opinion that only Public Administrations may be held liable for torts committed by their agents while acting within the scope of their employment. This liability must be thus always vicarious and exclusive. The author examines also whether, why and when the injured or vicariously liable Administrations may require compensation from their employees who have caused the injuries.

Abstract: ISPs’ indirect copyright liability permits regulation where traditional legislation fails to meet requirements of copyright protection in a new digital environment, and makes a third party possibly to prevent or decrease the risk of copyright infringement at low cost. However, though it has been hailed as a forceful tool for governing ISPs’ liability for fierce copyright infringement committed by their users over the Internet in most of the jurisdictions, the strength of this liability regime is still being challenged. Some argued that imposing indirect liability on the ISPs may lead to ISPs’ over-zealous censorship and thereby decrease or limit free access to copyright materials. Meanwhile, the ISPs also argued that it is unfair for them to bear the full social costs generated by their users’ unlawful activities, merely because they are providing facilities and services. So far, dozens of studies have been produced to criticise those arguments and justify ISPs’ indirect copyright liability from legal point of view; however, less attention has been paid to the economic implication of ISPs’ indirect copyright liability and the significance it achieves at the confluence of law and economics. Utilizing an evaluation criterion: economic efficiency-Hicks-Kaldor criterion and a simple economic model: cost-benefit analysis, both are drawn from the theory of economics, this paper examines economic strength of indirect liability regime in the context of ISPs’ liability for online copyright infringement. It employs a string of relevant cases against those who allegedly facilitate copyright infringements to compare the costs and benefits of ISPs’ indirect copyright liability and also three applications of it including vicarious liability, contributory liability and inducement liability. The paper finally concludes that only ISPs’ indirect copyright liability regime shaped by the technology through the development of the Internet is the most efficient liability regime to tackle extensive online copyright infringements and bring long term social welfare to the society. This paper was presented at the 23rd BILETA Annual Conference 2008 on March, 2008, and it has been published in the conference proceeding of the 23rd BILETA Annual Conference 2008.

Abstract: It is a well-settled principle of international law that international organisations are subjects of international law and capable of possessing international rights and duties and of enforcing such rights by bringing international claims for breach of an international obligation against the organisation. At least theoretically, the reverse situation enjoys equal recognition, namely that international organisations may be held responsible for their wrongful acts as a logical consequence of the powers and duties bestowed upon them in terms of their constitutive instruments. In the latter instance there is, amongst others, the rather sensitive issue of the vicarious liability borne by member states of the international organisation and / or by a regional organisation in the case of shared mandates and responsibilities. Recently, the underlying issues involved in such a scenario were well-illustrated by the Behrami and Al-Jedda judgments which feature later in this contribution.

Abstract: Contents Introduction 1 PART ONE: Principles and policy of negligence 1. An action for damages in perspective 1 The Bradford football fire 2 Points for discussion 3 Civil Justice Reforms and Funding of Civil Actions 2. The duty of care 1 General Principles 2 Pure Omissions 3 Proximity and Failure to Prevent Harm 3. Duty of care: special problems 1 Liability of Public Authorities 2 Psychiatric Harm 3 Wrongful Conception, Wrongful Birth, and the Unborn Child 4. Pure economic loss 1 The Origins of the Rule against the Recovery of Negligently Caused Economic Loss 2 What Is Pure Economic Loss? 3 The Hedley Byrne Exception 4 The Basis and Development of the Hedley Byrne Exception 5 The Measure of Damages under Hedley Byrne: The 'Scope' of the Duty 5. Breach of duty 1 The Reasonable Person 2 Application of the Standard of Care 3 Aids in Discharging the Burden of Proof 6. Causation and Remoteness of Damage 1 Factual Causation 2 Selection among Operative Factual Causes 3 Foreseeability of the Kind of Damage 4 Development of The Wagon Mound Doctrine 7. Defences : contributory negligence , volenti non fit injuria , exclusion of liability, and illegality and public policy 1 Contributory Negligence 2 Volenti non fit injuria 3 Exclusion of Liability 4 Illegality and Public Policy 8. Assessment of damages 1 The Aims of an Award of Damages 2 Personal Injuries 3 Property Damage PART TWO: SPECIFIC DU TIES AND INTERESTS 9. LIABILITY FOR DEFECTIVE PREMISES 1 Occupiers' Liability 2 Non-occupiers' Liability for Premises 10. Product Liability 1 Negligence 2 Statutory Liability 11. Liability for animals 12. Breach of Statutory Duty 1 Express Creation of New Torts 2 Express Exclusion of Civil Remedy 3 Creation of New Torts by Judicial Interpretation of Statutes 4 The Scope of Protection 5 The 'Eurotort' 6 A Note on Health and Safety Legislation 13. Intentional Interference with the Person 1 Trespass, Intention, and Negligence 2 Assault and Battery 3 False Imprisonment 4 The 'Tort in Wilkinson v Downton' and Harassment 5 Defences 14. Interference with Land 1 Trespass to Land 2 Public Nuisance 3 Private Nuisance 4 Escape of Dangerous Things from Land 5 Fire 15. Intentional economic torts 1 Conspiracy 2 Inducing Breach of Contract 3 Causing Loss by Unlawful Means-the 'Unlawful Means Tort' 4 The Tort of Deceit 16. Interests in Reputation -Defamation 1 Defamation and Freedom of Expression 2 Who Can Sue? 975 3 Words or Matter Defamatory of the Claimant 4 The Distinction between Defamation and Malicious Falsehoods 5 Publication 6 Defences 7 Remedies 8 The Distinction between Libel and Slander 17. Invasion of Privacy PART THREE: Loss Distribution 18. Vicarious Liability 1 Justification for Vicarious Liability 2 Relationship of Employer and Employee 3 Relationships beyond Employment 4 Connection between the Relationship of the Tortfeasor and the Defendant and the Act of the Tortfeasor 5 Liability for Independent Contractors 6 Employer's Liability to Employees 19. Joint Liability 1 Joint Tortfeasance 2 Contribution between Tortfeasors 20. Insurance and Compensation 1 The Relationship between Insurance and Tort Liability 2 Compulsory Insurance Provisions 3 Motor Insurers' Bureau 4 The Settlement Process 5 Other Compensation Systems 6 The Future of Compensation Further Reading

Abstract: Franchisors in Britain face a difficult problem. If they use the techniques of reputation risk management to protect their corporate brands (which is usually their most valuable assets), they may inadvertently increase their exposure to third party tort claims. This paper explains why this may occur and how the franchisor could try to do to deal with this problem. It shall be suggested that a form of reputation risk management should be adopted by franchisors, even where the tort risk remains. This is because the franchisor has much to gain from having an efficient method of protecting the corporate brand where appropriate legal and organisational arrangements can be made to further this goal.

Abstract: If ranchers surrounded their fields with fences that were two feet high and then demanded that the law prevent their horses from escaping, or insisted that there was a general social obligation to return any horses that had managed to escape, their request would be met with undying laughter. Yet that is precisely what the copyright industries are doing rather successfully, and they have managed this feat in part under the theories of contributory infringement and vicarious liability. The legal system has dealt solemnly with these secondary liability concepts of infringement without fully considering their significance, with the unhappy result that they may seem like commonplace and unobjectionable legal principles. As they have become more prominent, they have assumed a significance that threatens to take us far from the traditional contours of copyright via the imposition of a widespread social obligation to protect the rights of copyright holders.The emergence of secondary liability as a matter of real social and legal concern signals a battle to redefine social relations in light of the growing instability of intellectual property, and although I focus on copyright, the issue has arisen in patent and trademark law as well. The extension of secondary liability represents just one part of a much broader tendency toward the imposition of a general social duty to preserve the property of the content industries and to give them control of the means of distribution present and future, real and hypothetical. Further, the full significance of secondary liability cannot be understood unless it is considered alongside other manifestations of this tendency. The Essay contends that secondary liability takes on a much greater meaning when it is seen as closely related to other efforts in extending responsibility for protecting copyrights: in the Digital Millennium Copyright Act, in various measures intended to increase the government's responsibility for copyright enforcement, in attempts to make universities accountable to the content industries, and in the inconsistency in the operation of copyright law. The Essay continues by noting that one very serious defect that is emerging in the secondary liability jurisprudence is a tendency not to consider the role of the downstream user, who is too easily imagined to be the direct infringer necessary to support the secondary liability theories, in any careful way. The Essay argues that copyright law needs to recognize the character of downstream use by adopting an overbreadth doctrine similar to that found in First Amendment overbreadth jurisprudence. It concludes by observing that intellectual property is inherently unstable and is becoming more so, and that the extension of secondary liability is a predictable and dangerous outcome of a misplaced desire to protect what is increasingly difficult to protect.

Abstract: Most modern statutes and the Model Penal Code dispense with the distinctions between principals and accessories, and hold persons legally accountable if they commit the act, solicit the commission of offense, aid in commission, or, in some instances, fail to take proper efforts to prevent it. In order for a person to be convicted of a crime, the prosecution must show that the person charged committed a prohibited act or failed to act when he or she had the legal obligation to do so. This principle, referred to as actus reus, may involve an actual physical movement or may consist of verbal acts. However, one cannot be punished for evil intent without an act, nor for a violation of a statute that makes status alone a violation. Although in the usual case an affirmative act is required to support a conviction, in some instances, liability can rest upon the failure to act if there was a legal responsibility to do so.

Abstract: In response to massive oil spills that damaged America's waters, devastated local economies, killed wildlife, and cost taxpayers millions in clean-up costs, Congress passed the Oil Pollution Act of 1990. The Act amended the Federal Water Pollution Control Act to allow for criminal prosecution of negligent oil discharges. This Comment argues that although the plain language of the Federal Water Pollution Control Act's negligent discharge provision is silent regarding corporate vicarious criminal liability, courts should give full effect to Congress's intent-to protect the health and safety of the public and the environment and to stop corporations from accepting oils spills as just another cost of doing business-and construe the negligent discharge provision to allow for vicarious liability. Doing so will not violate the due process rights of corporations because they are on notice of the stringent regulations surrounding oil pollution. Moreover, corporations are in the best position to prevent and deter negligent employee behavior that leads to oils spills in the first place. INTRODUCTION A thick layer of fog covered the San Francisco Bay area1 on November 7, 2007(2) when a bay pilot, Captain John Cota, boarded the Cosco Busan, a container ship operated by Fleet Management, Limited (Fleet).3 Cota and Fleet allegedly failed to prepare and review a passage plan prior to departure4 and guided the vessel out of the bay in visibility of less than a quarter mile.5 According to the third superseding indictment, the ship proceeded too quickly, and Cota and Fleet, in addition to making other navigational errors, failed to use the vessel's radar and electronic chart system properly.6 As a result, they "failed to navigate an allision free course,"7 and the vessel allided with a tower of the San Francisco-Oakland Bay Bridge,8 splitting open fuel tanks and spilling more than 50,000 gallons of diesel fuel and oil into the bay.9 The spill killed thousands of birds10 and left forty miles of beaches and shore contaminated. ' ' The National Transportation Safety Board estimated the cost of clean up at $70 million, ship repairs at $2.1 million and bridge repairs at $1.5 million.12 As a result of the spill, both Cota and Fleet were charged with negligent discharge of oil into navigable waters of the United States under the Federal Water Pollution Control Act, commonly known as the Clean Water Act (CWA).13 In prosecuting Fleet, the U.S. Government has relied on the civil negligence standard - failure to take due care applicable under the CWA negligent discharge provision in order to incorporate the agency principle of negligent supervision.14 Trial is scheduled for September 2009. 15 Fleet originally faced a maximum $200,000 fine for its CWA violations or twice the gross gain or loss caused by the violations under the Alternative Fines Act.16 Now, after a third superseding indictment alleging "approximately $20 million in pecuniary losses," Fleet faces a $40 million fine.17 Although the Government proceeded under a direct liability theory against Fleet, courts should also recognize a respondeat superior theory, which would hold corporations vicariously criminally liable for negligent oil discharges by their employees. The negligent discharge provision does not explicitly call for vicarious liability. However, the legislative intent behind the Oil Pollution Act of 1990 (OPA 9O),18 which amended the CWA, and the public welfare nature of the legislation support such an interpretation.19 Allowing prosecution under vicarious criminal liability would mean that when employees, such as crew members, are found guilty of negligent discharge of oil under the CWA, corporations, such as ship management corporations, vessel owners, and demise charterers, could also be subject to liability.20 Part I of this Comment briefly describes the CWA negligent discharge provision and examines the legislative history of the provision, as amended by OPA 90, including its public welfare nature and Congress's interest in holding corporations liable for oil spills. …

Abstract: Modern health care is delivered by large teams of highly trained individuals in a complex web of interaction that demands coordination and oversight. For this reason, the traditional model of malpractice liability, in which the individual caregiver is liable, is outmoded: medical errors often are the result of system failures, and systemic changes best address these problems. For this reason, a robust regime of hospital vicarious liability has more potential than any other malpractice reform to realign the deterrent power of tort law with the goal of patient safety.

Abstract: According to the Finnish Penal Code a corporation may be sentenced to a corporate fine if a person who is part of its statutory organ or other management or who exercises actual decision-making authority therein 1) has been an accomplice in an offence or allowed the commission of the offence, or 2) if the care and diligence necessary for the prevention of the offence has not been observed in the operations of the corporation. Criminal liability of legal persons is based on the intentional or negligent acts of individuals who are in a certain relationship with the corporation. The Finnish legal doctrine clearly rejects the identification theory according to which an individual is considered as acting not for a company but as a company. According to Finnish scholarly writings, the acts of an individual offender could be attributed to the legal person under certain conditions not as acts of the legal person but as acts of the individual for the company. Nonetheless, Finnish law does not abandon the fault requirement. In this respect, Finnish law differs from the traditional common law theory of vicarious liability.

Abstract: Third-party copyright liability raises specific First Amendment problems that remain relatively unexplored. Among other things, such liability separates the danger of liability from the benefits of speaking, making key actors prone to careless censorship of speech. This Article applies the First Amendment to third-party copyright liability by drawing lessons from the famous cases of New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc. It concludes that vicarious liability should be sharply curtailed, and that the application of presumed damages is constitutionally problematic in many contributory liability cases.

Abstract: As a consequence of requests from clients or prospective clients, lawyers are often placed in a position of giving referrals, especially in situations of cross-specialty referrals (such as an estate planning attorney whose longtime client has become a party in a personal injury lawsuit) or cross-jurisdictional referrals (such as an attorney in Michigan who is contacted by a prospective client who must respond to a lawsuit that was filed in Ohio). But if the lawyer who receives the referral commits malpractice in handling the case, can the lawyer who made the referral be held liable for the client's loss? This paper argues that plaintiffs can draw analogies to doctrines of undue influence and breach of fiduciary duty, while defendants can invoke an analogy to the business judgment rule.