Categories
Number 1 January 2016
Number 2 March 2016
Number 3 May 2016
Number 4 July 2016
Number 5 September 2016
Number 6 November 2016
Ediberto Roman
The Tortious Second Amendment: A Response to Andrew McClurg’s The Right to Be Negligent
Response to Andrew Jay McClurg, The Second Amendment Right to Be Negligent
In his recent provocative article addressing gun violence and the negligence of gun owners and gun sellers, Professor Andrew McClurg asserts the failure of courts and legislatures to invoke traditional tort principles to gun ownership has created what he calls “[t]he Second Amendment right to be negligent.” Professor McClurg’s claim is eye opening in that it can be characterized as anti-private gun ownership, or at the very least his article is advocating for a far more regulated right of ownership, during a time where the U.S. Supreme Court in District of Columbia v. Heller, specifically endorsed an arguable unregulated private right of ownership. Moreover, Professor McClurg takes on this issue when it is rare for any politician to dare question the Second Amendment, let alone assert it promotes negligent conduct.However, the tragic events of February 14, 2018, where a teenage former student gunman killed 17 and injured 17 others at Marjory Stoneman Douglas High School in Parkland, Florida, may have changed the political will of the public to address regulation concerning the arguable third rail of politics—the Second Amendment’s right to own guns.
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Brannon P. Denning
Is There a “Second Amendment Right to Be Negligent”?
Response to Andrew Jay McClurg, The Second Amendment Right to Be Negligent
Professor McClurg’s thesis is that courts and Congress have either ignored, misapplied, or overridden general tort principles of duty and proximate cause to insulate from civil liability those who negligently store firearms despite what he sees as the eminently foreseeable harm that occurs if those firearms are stolen and later used in crimes. He argues that this “irrational . . . choice” not to hold those gun owners liable is driven by an “unwarranted deference to expansive views of the Second Amendment” and is tantamount to the recognition of a “right to be negligent.” Only the First Amendment confers on private citizens a similar right in certain cases. In this brief commentary, I want to push back on his explicit premises, namely, that the Second Amendment is in the driver’s seat here, and that—assuming the Second Amendment is exerting some kind of gravitational pull on tort law—the unwillingness to hold gun owners liable for the criminal acts of others is irrational. Rather than framing the issue as one of judges and legislators willfully ignoring generally-accepted principles of civil liability, I would argue that courts and legislators have merely created an exception reflecting societal judgments about the value of private gun ownership and the possible consequences to gun owners were tort law permitted indirectly to do what the Second Amendment bars government from doing directly: make it difficult, if not impossible, for individuals to own guns for self-defense.
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Richard C. Ausness
Gun Control Through Tort Law
Response to Andrew Jay McClurg, The Second Amendment Right to Be Negligent
I have been asked to respond to an article by Professor Andrew Jay McClurg that recently appeared in the Florida Law Review. In this article, the author, a longtime advocate of firearms regulation, argues that owners and commercial sellers of firearms who negligently fail to secure them against theft should be held liable when persons are killed or injured by firearms used in the commission of a crime. Professor McClurg’s liability proposal is more traditional and narrowly focused than other theories. In the first place, because it is based on negligence, this liability theory requires that the defendant be at fault in some way. Second, it does not affect gun manufacturers at all, but instead imposes liability on gun owners and sellers when they fail to secure their weapons properly and when this failure enables criminals to steal guns and injure third parties while committing violent crimes. However, I am skeptical about whether the imposition of tort liability is the best solution to the problem of gun violence.
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Patrick R. Goold
Intent in Patent Infringement
Response to Saurabh Vishnubhakat, An Intentional Tort Theory of Patents
In An Intentional Tort Theory of Patents, Professor Vishnubhakat makes two arguments. First, that liability for patent infringement should only be imposed upon defendants who intentionally make, use, or sell, patented inventions. And second, that if patent infringement includes such an intent requirement, it would no longer be a strict liability tort. This response agrees with the first thesis: patent infringement should require intentional conduct of a certain sort. However, the response disagrees with the second thesis: even if patent infringement requires such intent, liability would, in my view, still be “strict.”
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Stephen G. Gilles & Nelson Lund
A Second Amendment Right to Be Negligent?
Response to Andrew Jay McClurg, The Second Amendment Right to Be Negligent
Professor Andrew Jay McClurg maintains that the Second Amendment has created a right to store firearms negligently. It is conceivable that some such thing could happen, just as the Supreme Court has used the First Amendment to require plaintiffs who are public figures to prove more than negligence in defamation actions. But Professor McClurg presents no evidence to support his claim. He criticizes many decisions in which courts declined to find liability when a gun stolen from the defendant was used to injure an innocent person. But he cites no case in which a court invoked the Second Amendment as the ground for its decision. To accept Professor McClurg’s claim that the Second Amendment has caused courts to distort the application of standard tort principles, we have to believe that they have done it secretly and that they undertook this insidious project before they believed there was a legal basis for what they were doing. Although the title of Professor McClurg’s article appears to be a marketing gimmick, he does make two somewhat more serious claims. First, he maintains that courts have misapplied well-established tort principles in refusing to hold the victims of gun thefts liable for injuries subsequently inflicted with the stolen weapons. Second, he contends that legislatures have irresponsibly failed to impose objectively reasonable safe-storage duties on gun owners. Both claims are mistaken.
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D. Daniel Sokol
Responding to Antitrust and Information
Response to Herbert Hovenkamp, Antitrust and Information Technology
In his recent article, Antitrust and Information Technology, Professor Hovenkamp addresses some of the most important issues involving antitrust. In particular, he addresses the issues of market power, consumer choice in the context of Google, the Apple e-books case, net neutrality and antitrust issues involving FRAND commitments and patent pooling. In doing so, Professor Hovenkamp offers an intellectual tour du force of most of the important issues in this interface of antitrust, intellectual property and high tech. Further, Professor Hovenkamp offers a policy roadmap for courts and antitrust authorities. This response provides an overview of the article and offers some suggestions of further implications of Professor Hovenkamp’s work.
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Grayson M.P. McCouch
Another Perspective on Testamentary Arbitration
Response to E. Gary Spitko, The Will As An Implied Unilateral Arbitration Contract
The American law of succession is remarkable both for its expansive concept of testamentary freedom and for its antiquated and cumbersome probate system. In principle, a testator enjoys virtually unlimited freedom to dispose by will of property owned at death, but enforcement of the testator’s directions generally requires a proceeding in a probate court to prove the will and appoint an executor to administer the estate. To avoid the expense and delay of court proceedings, transferors routinely use revocable trusts and other devices that replicate the effects of a will but operate outside the probate system. Moreover, some transferors seek to prevent their wills and trusts from becoming embroiled in litigation by requiring that disputes be resolved by private arbitration. The twin phenomena of probate avoidance and mandatory arbitration clauses stem from a common desire on the part of transferors to control the process as well as the substantive terms governing the disposition of their accumulated wealth. While transferors are generally free to dispose of property during life or at death without unnecessary court involvement, mandatory arbitration clauses raise controversial questions of enforceability and procedural fairness.
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Michael Kagan
Shrinking the Post-Plenary Power Problem
Response to Matthew J. Lindsay, Disaggregating “Immigration Law”
Professor Matthew J. Lindsay’s excellent article Disaggregating “Immigration Law” arrives at a pivotal moment in the evolution of American immigration law. My understanding of this moment is thus: A majority of Supreme Court justices appear to be at least occasionally uneasy with the plenary power doctrine that has shaped immigration law since the Chinese Exclusion Case, but they are not all sure how to live without it either. So long as this remains the case, the Court’s immigration jurisprudence is likely to be incrementally favorable to immigrants on the whole, but tentative, inconsistent, and incoherent in some important ways. In my view, the importance of Professor Lindsay’s intervention is that it helps point a way to find clarity in this transitional period.
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Glenn Harlan Reynolds
Permissible Negligence and Campaigns to Suppress Rights
Response to Andrew Jay McClurg, The Second Amendment Right to Be Negligent
Professor Andrew McClurg has written interestingly about what he calls the “Second Amendment right to be negligent,” under which, he says, gun owners, sellers, and manufacturers escape liability for guns that, through theft and other means, fall into the hands of criminals, chiefly thanks to a federal statute, the Protection of Lawful Commerce in Arms Act. In passing, Professor McClurg notes that only one other item in the Bill of Rights, press freedom under the Supreme Court’s decision in New York Times v. Sullivan, enjoys a similar “right to be negligent.” He is right that other Bill of Rights provisions enjoy no such additional protection (though one might argue that under the Fourth and Fifth Amendments the government enjoys a “right to be negligent” via the doctrine of good-faith immunity). But Professor McClurg’s article understandably does not digress into the interesting question of why, exactly, the First and Second Amendments provide protection against tort claims in a way that other constitutional rights have not. In this brief response, I will look at that question, and will also touch, briefly, on the to-me interesting aspect that the protection enjoyed by publishers under the First Amendment was created by judicial action, while that enjoyed under the Second Amendment was instead the product of legislation.
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David Hemenway
Gun Exceptionalism
Response to Andrew Jay McClurg, The Second Amendment Right to Be Negligent
Gun violence is a major American public health problem. In the most recent decade for which there are good data (2005-2014), on an average day in the United States, over 290 people were shot, and more than eighty-five died. More American civilians were killed by guns in that decade than American military personnel were killed in battle during World War II. In the United States, virtually every gun starts out as a legal gun, manufactured legally and initially sold by a federally licensed retailer that, at least since 1994, is required to conduct a federal background check on the purchaser. Yet each year hundreds of thousands of guns “leak” into the secondary gun market where individuals who could not pass the federal background check can obtain firearms. Guns get into hands of those who cannot pass a background check in a variety of ways. These ways include the sale of used guns without a background check (e.g., at gun shows, flea markets and over the internet), straw purchases, and gun theft. It is estimated that hundreds of thousands of guns are stolen each year. Professor Andrew McClurg makes the case that U.S. negligence laws, with respect to firearm storage, are instrumental in allowing this huge level of gun theft.
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Kevin R. Johnson
Immigration “Disaggregation” and the Mainstreaming of Immigration Law
Response to Matthew J. Lindsay, Disaggregating “Immigration Law”
Professor Matthew Lindsay, in his latest article on immigration law, adds meaningfully to the existing body of scholarship. He analyzes a fundamental question that immigration law scholars have long prodded the courts to answer definitively: In a nation bound by a national constitution, what role, if any, does the U.S. Constitution play in the review of the immigration laws? Over the last two centuries, the Supreme Court has failed to decisively answer that all-important question. At the same time, the Court on a case-by-case basis has inched toward increasingly “normal” judicial review of most immigration decisions.
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Mary F. Radford
Response to Professor Spitko’s The Will As An Implied Unilateral Arbitration Contract And An Alternative Approach
Response to E. Gary Spitko, The Will As An Implied Unilateral Arbitration Contract
I read Professor Gary Spitko’s article entitled The Will As an Implied Unilateral Arbitration Contract with great interest. Professor Spitko’s proposal to characterize a will as an implied unilateral contract between the individual donor (testator) and the state is both novel and far-reaching. By way of background, I have for years advocated strongly in favor of the use of mediation to resolve will challenges and other disputes relating to fiduciary law. I am also a relatively recently-converted proponent of the enforcement of mandatory arbitration clauses in will and trusts disputes. As such, I applaud Professor Spitko for his theory and would fervently like for courts to see the wisdom of his approach. However, the pragmatic and albeit cynical aspect of my intellectual temperament leads me to play devil’s advocate. The arguments I present here against Professor Spitko’s approach are admittedly simplistic, but they have forced me to attempt to come up with an alternative approach that may serve as a back-up in the event that courts do not see the wisdom of Professor Spitko’s theory.
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Allen Rostron
Guns, Speech, and Breathing Space
Response to Andrew Jay McClurg, The Second Amendment Right to Be Negligent
In The Second Amendment Right to Be Negligent, Professor Andrew McClurg astutely observes that current law provides the constitutional right to be negligent in two important realms. He first notes that the Supreme Court has construed the freedom of expression protected by the First Amendment as including a right to be negligent in speaking about public officials, public figures, and issues of public interest. Professor McClurg then argues that a constitutional right to be negligent has emerged under the Second Amendment as well, with courts and legislatures essentially creating a right to be negligent in the sale and storage of firearms. Professor McClurg’s focus is squarely on the Second Amendment right to be negligent, so his Article briefly mentions the parallel First Amendment right but does not discuss it in great detail. In this response to the Article, I will explore the relationship between the rights a bit further and offer a few thoughts on the relative merits of the First Amendment right to be negligent and its Second Amendment cousin.
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David Horton
The Limits of Testamentary Arbitration
Response to E. Gary Spitko, The Will As An Implied Unilateral Arbitration Contract
In The Will As An Implied Unilateral Arbitration Contract, Professor E. Gary Spitko argues that there is an implied unilateral contract between the government and individual property owners. He claims that the state promises to distribute a person’s assets at death according to their wishes (including their desire to compel arbitration of any claim relating to their estate) in return for the person generating wealth during their life. He therefore concludes that even people who are not mentioned in the will are either equitably estopped from challenging the arbitration provision or bound as third party beneficiaries of this “donative freedom contract.” In this invited reply to the Florida Law Review Forum, I explain why I respectfully disagree with Professor Spitko. I argue that the Federal Arbitration Act and its state analogues do not cover claims brought by non-consenting parties. In addition, I contend that this exclusion is necessary to prevent opportunists from using testamentary arbitration to insulate their conduct from judicial review.
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S.I. Strong
International Implications of the Will As An Implied Unilateral Arbitration Contract
Response to E. Gary Spitko, The Will As An Implied Unilateral Arbitration Contract
In his article, The Will As An Implied Unilateral Arbitration Contract, Professor Gary Spitko offers an intriguing and innovative argument about how arbitration provisions in wills can be enforced even over the objection of a beneficiary and even in cases where the beneficiary seeks to set aside the will in its entirety. While I do not agree with all of the assertions in that Article (for example, the conclusion that “a consensus is developing that a testator may not compel arbitration of contests to her will” appears somewhat premature, given a number of probate cases not discussed by Professor Spitko and recent developments in the arbitration of internal trust disputes), the basic premise of the discussion—that arbitration provisions in wills can and should be considered to be contractual in nature and thus enforceable—is sound as a matter of U.S. probate and arbitration law.
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