Maritime Catastrophe Response — Civil and Criminal Counsel Investigation; Illustrative Recent Collision and Platform Case Law; Criminalization of Marine Negligence

To most people, nothing is more fascinating and newsworthy than a maritime disaster. A burning factory in Kentucky or a pipeline oil spill in Utah does not generate the same sense of drama and excitement as an equivalent amount of spilled oil from a burning ship or oil platform in Louisiana, Texas, or anywhere else. This Article partners a panel presentation at the 2011 Tulane Admiralty Law Institute. In this presentation, for illustrative purposes, the authors played back a United States Coast Guard Vessel Traffic Service (VTS) Automatic Identification System (AIS) Electronic Chart Display (ECDIS) for the M/T BOW FORTUNE--M/T STOLT ZULU collision at 81 Mile Point on the Mississippi River above New Orleans at about 0440 hours on May 19, 2006.

The Role of the P&I Clubs in Marine Pollution Incidents

The fire and explosion on the mobile offshore drilling unit Deepwater Horizon and the subsequent release of nearly five million barrels of crude oil into the Gulf of Mexico has been characterized as “the worst environmental disaster America has ever faced.” Although the oil spill occurred while the rig was operating as an offshore facility, among the many issues arising from the disaster is the adequacy of the current limits of liability applicable both to vessels and offshore oil exploration and production facilities under the U.S. Oil Pollution Act of 1990 (OPA 90), and the role of the marine insurance industry in meeting the costs of response and damages caused by such catastrophes. Pollution risks are borne primarily by the owner of the ship or facility concerned, who will normally insure against them, along with other marine liability risks, by separate liability cover. In the case of vessels, this is arranged most commonly by entering the vessel in one of the shipowners' mutual insurance associations, which specialize in providing cover of this kind, and which are more commonly known as Protection and Indemnity Associations, or P&I Clubs. This Article will discuss the law and practice of P&I insurance with particular emphasis on the liabilities arising from major marine pollution incidents.  

Could You? Should You? Florida v. J.L.: Danger Dicta, Drunken Bombs, and the Universe of Anonymity

Recently, the United States Supreme Court passed on a chance to consider the legitimacy of investigatory stops based on uncorroborated anonymous tips of drunk driving, preferring this issue continue to ferment in the lower courts. When facing this issue, some lower courts seize the opportunity to carve out a drunk-driving exception to the Fourth Amendment based on “danger dicta” found in Florida v. J.L. Other courts hold fast to the corroboration requirement for anonymous informants in Alabama v. White. This Comment considers whether both approaches fail to take full advantage of existing Fourth Amendment jurisprudence so that police can effectively manage the dangers posed by drunk drivers without further eroding Fourth Amendment protections. Rather than polarize informants as either known or anonymous, there is a third classification of informants that are just distinct enough to provide reasonable suspicion for investigatory stops. As Justice Kennedy's concurring opinion in J.L. argued, these quasi-known/quasi-anonymous informants “might be anonymous in some sense yet have certain other features, either supporting reliability or narrowing the likely class of informants, so that the tip does provide the lawful basis for some police action.”

Forum and Venue Selection Clauses in Seamen's Employment Contracts: Can Contractual Stipulations Be Used to Defeat a Seaman's Choice of Forum or Venue in a Jones Act Claim?

A split in authority has developed over the enforceability of forum and venue selection clauses in Jones Act claims. While some courts hold such restrictions of a seaman's choice of forum or venue invalid and unenforceable, others find forum and venue selection clauses presumptively valid. Confusing the issue further, several courts have held that while a seaman's choice of forum is protected, and cannot be limited by a forum selection clause, the seaman's choice of venue merits no such protection. This Comment suggests that the last of these approaches—under which a seaman's choice of forum is protected, but choice of venue can be limited by contract—best embodies the congressional intent behind the Jones Act.

Tracing the Origins of Fairly Traceable: The Black Hole of Private Climate Change Litigation

[O]ur emerging problems of the environment and ecological unbalance are worrisome problems indeed, and I am distressed that our law is so inflexible that we find ourselves helpless procedurally to meet these new problems.

-- Justice Harry Blackmun

Convergence in Contort: Landlord Liability for Defective Premises in Comparative Perspective

The relatively recent transformation of landlord-tenant law has imported into the common law landlord-tenant relationship a number of obligations that have been recognized in civil law leases for centuries.Thus the common law's embrace of an implied warranty of habitability closed a long-existing gulf between the two legal traditions' approaches to the obligations of residential landlords. In both traditions today, breach of the landlord's obligation to provide a safe and habitable dwelling gives rise to traditional contractual remedies, including termination of the lease and damages.However, the treatment of personal injuries, property damage, and nonpecuniary losses continues to differ across jurisdictional lines. While American tenants who suffer such losses are largely restricted to a tort theory of recovery, civil law tenants have both contractual and tort theories at their disposal. This Article turns to the civilian tradition to determine whether this concurrent approach to landlord liability better allocates the risk of harm between residential landlords and their tenants.  

A Uniform Framework for Patent Eligibility

There is a need to clarify patent law so as to advance resolution of its most fundamental question--delineating the categories of subject matter that are eligible for patent protection. Coupled with the active role the Supreme Court has taken in examining this precise issue, individuals and nonprofit organizations have galvanized a public discourse through constitutional challenges to the issuance of various biotechnology patents. Despite a statutory framework that has remained constant since 1793, courts have been unable to create a comprehensive test for determining patent-eligible subject matter that accurately embodies the foundational principles that underlie the federal grant of patents. I argue that the proximate cause of the lack of an appropriate framework is the failure of courts to clearly define the statutory categories and the absence of a technology-agnostic method of analyzing whether an invention claims ownership over a “product of nature.” This Article sets forth a uniform framework that addresses patent-eligible subject matter through the creation of a practical methodology that focuses on these two principles. The advantages of the proposed framework are highlighted through the application of the framework to traditional inventions and emerging biotechnologies.

"Sports Law": Implications for the Development of International, Comparative, and National Law and Global Dispute Resolution

In this Article, we observe that legal regulation of national and international sports competition has become extremely complex and has entered a new era, which provides fertile ground for the creation and evolution of broader legal jurisprudence with potentially widespread influence and application. Our principal aim is to draw these developments to the attention of legal scholars and attorneys not necessarily familiar with sports law. Specifically, the evolving law of sports is having a significant influence on the development of international and national laws, is establishing a body of substantive legal doctrine ripe for analysis from a comparative law perspective, and has important implications for global dispute resolution. For example, the global processes used to establish an international sports antidoping code and to resolve a broad range of Olympic and international sports disputes (which is rapidly creating a body of global private law) provide paradigms of international cooperation and global lawmaking. In addition, judicial resolution of sports-related cases may develop jurisprudence with new applications and influence. Our objective is to generate greater awareness of the importance of sports, not only as a worldwide cultural phenomenon and a significant part of the twenty-first-century global economy, but as a rich source of international and national public and private laws that provide models for establishing, implementing, and enforcing global legal norms.

The Rome II Regulation: A Comparative Perspective on Federalizing Choice of Law

This Article analyzes the Rome II Regulation, which entered into effect on January 11, 2009, and established uniform choice-of-law rules for noncontractual obligations in the European Union. Rome II is of particular interest to U.S. scholars because its federal and international character and nearly comprehensive scope make it a potential model for a new U.S. Restatement or federal statute. Beginning with its text, context, and legislative history, this Article examines Rome II in the comparative light of state-level codifications in the United States and the general theory of state-interest analysis developed during the American “conflicts revolution.” The Article tests the new EU regulation against the facts of influential conflicts cases of the New York Court of Appeals and argues that it performs well by an interest-analysis standard. An assessment of Rome II as a model for a U.S. codification concludes the Article.

Saving Civil Justice: Judging Civil Justice By Hazel Glenn

Asking the right question can be as important as giving the right answer. In her book Judging Civil Justice, Dame Hazel Genn forcefully argues that the right question about the civil justice system is not “[h]ow much justice can we afford” but “how much justice can we afford to forego.”Genn has spent her professional lifetime studying methods for resolving civil disputes. A pioneer in empirical legal studies, she has for thirty years interviewed litigants, lawyers, and judges and studied courts, tribunals, and ADR methods. Genn is a clear-eyed observer, deeply sympathetic to the plight of modern courts but unwilling to ignore the politics that underlie the rhetoric of court reform today.. . .