Table of Contents

Proving Damages for Lost Profits: The Before-and-After Method

Robert M. Lloyd, University of Tennessee College of Law

Agency Coordination in Consumer Protection

Catherine M. Sharkey, New York University School of Law

Online Harassment, Defamation, and Hateful Speech: A Primer of the Legal Landscape

Alice E. Marwick, Fordham University, Communication and Media Studies, McGannon Center
Ross W. Miller, Fordham University School of Law

Waves of Change Towards a More Unified Approach: Equitable Tolling and the Federal Tort Claims Act

Jacob Damrill, University of Tulsa College of Law

Holding Corporate Officers Strictly Liable Under Patent and Copyright Law

Lynda J. Oswald, University of Michigan, Stephen M. Ross School of Business

Liability for Online Anonymous Speech: Comparative and Economic Analyses

Ronen Perry, University of Haifa - Faculty of Law
Tal Zarsky, University of Haifa - Faculty of Law


TORTS & PRODUCTS LIABILITY LAW eJOURNAL

"Proving Damages for Lost Profits: The Before-and-After Method" Free Download
University of Tennessee Legal Studies Research Paper No. 243

ROBERT M. LLOYD, University of Tennessee College of Law
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The before-and-after method is the most reliable method of proving damages for lost profits. The analyst compares the plaintiff’s performance during two periods, one (the “benchmark period?) in which the plaintiff’s performance is not affected by the defendant’s conduct, and another (the “loss period?) in which it was. To reliably use the before-and-after method to calculate lost profits, the analyst must choose the proper benchmark period and correct the data for any factors other than the defendant’s conduct that may have contributed to the differences in performance between the benchmark period and the loss period.

"Agency Coordination in Consumer Protection" Free Download
2013 University of Chicago Legal Forum 329
NYU School of Law, Public Law Research Paper No. 14-23

CATHERINE M. SHARKEY, New York University School of Law
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The federalization of consumer protection has created thorny issues of agency coordination. When multiple federal agencies interpret and enforce the same statute, should a single agency’s interpretation be accorded Chevron deference? Should it matter whether it is in synch, or at odds, with its fellow agencies? This Article explores two agency coordination strategies that point in opposite directions. The first, a balkanization strategy, attempts to overcome the overlapping agency jurisdiction problem by urging agencies to create separate, non-overlapping spheres of authority to thereby regain Chevron deference due the agency that reigns supreme. We can expect “agency self-help measures? that stake out respective turfs to emerge from this strategy. Courts have accepted the balkanization approach — carving out discrete fiefdoms from spheres of overlapping agency jurisdiction — and may accept it more readily as the jurisprudence after City of Arlington develops with regard to agency interpretations of jurisdiction.

The second (and more novel) strategy, a model of judicial review as agency coordinator, exploits (rather than constrains) overlapping agency jurisdiction. Under this model, when faced with an interpretation by an agency that operates in shared regulatory space, courts would solicit input from the other relevant agencies. And, to the extent that there is agreement among the different agencies, Chevron deference would be especially warranted (regardless of whether all of those agencies were parties before the court), in sharp contrast to certain courts’ blanket stance that Chevron deference is inappropriate when multiple agencies interpret the same statute.

"Online Harassment, Defamation, and Hateful Speech: A Primer of the Legal Landscape" Free Download
Fordham Center on Law and Information Policy Report No. 2

ALICE E. MARWICK, Fordham University, Communication and Media Studies, McGannon Center
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ROSS W. MILLER, Fordham University School of Law
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This interdisciplinary project focused on online speech directed at women and seeks to provide a primer on (i) what legal remedies, if any, are available for victims of sexist, misogynist, or harassing online speech, and (ii) if such legal remedies and procedures exist, whether practical hurdles stand in the way of victims’ abilities to stop harassing or defamatory behavior and to obtain legal relief. The study concluded that while online harassment and hateful speech is a significant problem, there are few legal remedies for victims. This is partly due to issues of jurisdiction and anonymity, partly due to the protection of internet speech under the First Amendment, and partly due to the lack of expertise and resources on online speech at various levels of law enforcement. Given this landscape, the problem of online harassment and hateful speech is unlikely to be solved solely by victims using existing laws; law should be utilized in combination with other practical solutions.

The objective of the project is to provide a resource that may be used by the general public, and in particular, researchers, legal practitioners, Internet community moderators, and victims of harassment and hateful speech online.

"Waves of Change Towards a More Unified Approach: Equitable Tolling and the Federal Tort Claims Act" Free Download
Tulsa Law Review, Vol. 50, Forthcoming

JACOB DAMRILL, University of Tulsa College of Law
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The Supreme Court’s landmark decision in Irwin v. Department of Veteran’s Affairs sparked a shift in sovereign immunity jurisprudence. As a result, the canon of strict construction is no longer the preeminent tool for restricting the scope of sovereign immunity waivers. In a contemporaneous development, the Court began to approach procedural rules associated with waivers of sovereign immunity as less absolute, instead applying them similarly to those against private individuals. This juxtaposition suggests the need for a reexamination of certain statutes. Prior to these two developments, appellate courts and commentators rejected the argument that the Federal Tort Claims Act’s (“FTCA?) statute of limitation was subject to equitable tolling. The Ninth Circuit’s recent decision in Kwai Fun Wong v. Beebe embraced the Supreme Court’s new jurisdictional framework and rejected those earlier positions. Concurring and dissenting opinions refused to accept the Supreme Court’s sovereign immunity and procedural limitations zeitgeist. The discord suggests that these con-current shifts have yet to achieve an entire gestalt. This article aims to navigate the waters. Standing on the shoulders of the majority’s opinion while also placing the crux of the court’s argument in the context of the Supreme Court’s modern precedents, it attempts to shed light on the superiority of the argument that equitable tolling is entirely compatible with the FTCA. In so doing, it primarily extrapolates from the statute’s text meanwhile questioning the notion that the FTCA’s legislative and statutory history indicates a contrary intent.

"Holding Corporate Officers Strictly Liable Under Patent and Copyright Law" Free Download

LYNDA J. OSWALD, University of Michigan, Stephen M. Ross School of Business
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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 sound doctrinal grounds by looking explicitly at intent-based liability rules.

"Liability for Online Anonymous Speech: Comparative and Economic Analyses" Free Download
Journal of European Tort Law, Vol. 5, 2014

RONEN PERRY, University of Haifa - Faculty of Law
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TAL ZARSKY, University of Haifa - Faculty of Law
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This is a pre-edited draft of of an article presented in the special session of the Annual Conference on European Tort Law. The article examines various models for handling the problem of online anonymous defamation from comparative and economic perspectives. The comparative analysis reveals four main paradigms. The US model bars content providers’ indirect liability, but facilitates identification of the speaker. The Israeli model recognises content providers’ fault-based liability but does not provide procedural tools for identifying the speaker. The EU framework enables the victim to request identification of the speaker, and at the same time bring an action against the content provider. Although there is variance among Member States, this model seems to comply with the relevant Directives and European court decisions. The recently-adopted English model (‘residual indirect liability’) enables the victim to pursue a claim against the speaker and, if the speaker is unavailable, imposes liability on the content provider.

From an economic perspective, the main problem with exclusively direct liability is the special effort in identifying and pursuing the anonymous speaker. Additional, yet probably less serious, problems are the high likelihood of judgment-proof defendants and high transaction costs which prevent a contractual transfer of the burden to the content provider when it is the cheapest cost avoider. The drawbacks of exclusively indirect liability are the relatively high cost of precautions, the fact that content providers do not capture the full social benefit of their activity, and the asymmetric legal response to errors with respect to ‘defamatoriness.’ Concurrent liability of the speaker and the content provider overcomes the high cost of identifying and pursuing anonymous speakers, and the problem of judgment-proof defendants. It also induces content providers to facilitate identification of anonymous speakers, increasing the likelihood of internalisation by primary wrongdoers. But concurrent liability has potentially conflicting effects on deterrence, and may result in an aggregation of the implementation costs of both direct and indirect liability. The residual indirect liability regime eliminates (or at least reduces significantly) the need for monitoring, and prevents over-deterrence associated with unaccounted benefits and asymmetric response to errors. It also incentivises content providers to reduce the cost of identifying anonymous wrongdoers, and does not raise the characteristic problems of multiple-defendants. This model may raise some difficulties but they seem either insignificant or solvable, making the English model (with some modifications) the most efficient.

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Torts & Products Liability Law eJournal

ANITA BERNSTEIN
Anita and Stuart Subotnick Professor of Law, Brooklyn Law School

RICHARD A. EPSTEIN
Laurence A. Tisch Professor of Law , New York University School of Law, Stanford University - Hoover Institution on War, Revolution and Peace, James Parker Hall Distinguished Service Professor of Law Emeritus, University of Chicago - Law School

MARK GEISTFELD
Sheila Lubetsky Birnbaum Professor of Civil Litigation, New York University School of Law

MARK F. GRADY
Professor of Law, University of California, Los Angeles (UCLA) - School of Law

SAUL LEVMORE
William B. Graham Professor of Law, University of Chicago Law School

ROBERT L. RABIN
A. Calder Mackay Professor of Law, Stanford Law School

W. KIP VISCUSI
University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Law School, Research Associate, National Bureau of Economic Research (NBER), University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Department of Economics, University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Owen Graduate School of Management, Vanderbilt University - Strategy and Business Economics

RICHARD W. WRIGHT
Professor of Law, Illinois Institute of Technology - Chicago-Kent College of Law