University of Southern California

Volume 79, Number 2 (January, 2006)

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    Abusing “Duty”
    Article by Dilan A. Esper & Gregory C. Keating

    “Duty” occupies an odd place in contemporary negligence law. On the one hand, it is hornbook law that duty – along with breach, actual and proximate cause, and injury – is one of the elements of a plaintiff’s prima facie case. As the first element of a plaintiff’s case – and the only element whose existence is a matter of law for the court – duty seems to stand out even among the elements of the prima facie case. If a plaintiff cannot establish that the defendant was under a duty to exercise at...

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    Shielding Duty: How Attending to Assumption of Risk, Attractive Nuisance, and Other “Quaint” Doctrines Can Improve Decisionmaking in Negligence Cases
    Article by John C.P. Goldberg & Benjamin C. Zipursky

    From 1950 to 1980 the California Supreme Court set as one of its main tasks the project of modernizing negligence law. This program had two main facets. With respect to substantive doctrine, the court sought to purge what it regarded as vestiges of politically regressive common law, particularly limited-duty or “no duty” rules that governed premises liability claims, nonphysical harm claims, and claims alleging nonfeasance. In terms of method, the court adopted and advocated an antiformalist, re...

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    When Churches Fail: The Diocesan Debtor Dilemmas
    Article by Jonathan C. Lipson

    The road from defendant to debtor is often short, and the cases of the Catholic dioceses would appear to be no exceptions. Facing hundreds of millions of dollars in liability for priests’ sexual misconduct, dioceses in Washington, Arizona, and Oregon recently filed cases under Chapter 11 of the U.S. Bankruptcy Code. Other dioceses may soon follow suit. Like the Dow Corning Corporation, the A.H. Robins Company, countless asbestos manufacturers, and other tortfeasors of recent memory, the dioceses...

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    Social Ties in the Boardroom: Changing the Definition of Director Independence to Eliminate “Rubber-Stamping” Board
    Note by Rachel A. Fink

    The new millennium ushered in a parade of corporate scandals. The succession of scandals, which began with the collapse of Enron, revealed a deep-seated pattern of disregard for shareholders’ interests. In response to these events and the widespread public outcry that ensued, Congress examined corporate board structure and senior management and passed the Sarbanes-Oxley Act (“SOX”) in 2002 to try to remedy problems of accountability. Even after SOX was passed, corporate governance experts contin...

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    Partial Preemption Under the Health Insurance Portability and Accountability Act
    Note by Grace Ko

    The landmark Health Insurance Portability and Accountability Act (“HIPAA”), which President Bill Clinton signed into law on August 21, 1996, was enacted in response to advances in information technology and their dramatic impact on the health care industry. Until recently, most medical records were paper-based, but technological developments have made it increasingly efficient to collect, retain, transmit, and exchange health care data. Title II of HIPAA includes the Administrative Simplificatio...

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