Volume 65 Preview — Book 1
Steven J. Willis
Professor of Law
University of Florida Levin College of Law
Beginning in 2013, the federal government mandates that general business corporations include contraceptive and early abortion coverage in employee health plans. Section 4980D of the Internal Revenue Code imposes a substantial excise tax on health plans violating the mandate. Indeed, for one company – Hobby Lobby – the expected annual tax is nearly one-half billion dollars. Dozens of “for profit” businesses have challenged the mandate on free exercise grounds, asserting claims under the First Amendment as well as under the Religious Freedom Restoration Act.
So far, courts have been reluctant to hold corporations have religious rights; as a result, standing of a corporation to assert the religious beliefs and rights of owners has become the primary issue in the twenty-six separate cases moving through the courts. Courts are splits on whether to grant standing; however, a large majority has used a variation of relational or associational standing to grant preliminary injunctions against enforcement of the tax.
This article discusses the relationship of morality and religion to general business corporations. It concludes that over the past few decades, movements for social justice and corporate social responsibility have intertwined business corporations and moral issues, blurring the line between religion and commerce. It also concludes that courts should permit associational standing for closely-held corporations – particularly those electing S status for tax purposes – if the owners have unanimous (or near-unanimous) beliefs.
S. Alan Medlin
David W. Robinson Professor of Law
University of South Carolina School of Law
The Disorderly Conduct of Words: Civil Liability for Injuries Caused by the Dissemination of False or Inaccurate Information
Richard C. Ausness
Everett H. Metcalf, Jr. Professor of Law
University of Kentucky College of Law
This Article is concerned with the potential liability of those who disseminate false or inaccurate information which causes physical injury or property damage to those who rely upon it. It will not address the question of whether those who advocate or depict violence or other antisocial activities should also be subject to liability. For the most part, such publications are considered to be a form of constitutionally protected speech even when they directly cause physical harm to others. Although the issue of liability for the publication of factually inaccurate information is narrower in scope that that of liability for the publication of “bad” ideas, there is a surprising amount of variation in how courts treat those who publish such information. Liability may be based on whether the information relates to the sale of a product, whether it is embodied in a product; or whether it is disseminated electronically or in some kind of tangible form. This Article will try to determine whether any of these distinctions is relevant to the type of liability rule that is applicable to those who publish inaccurate information.
The Article begins by examining the existing state of the law in this area. Part I focuses on liability for information associated with the marketing or sale of a product. In such cases, liability for product sellers may arise from product descriptions in advertising or express warranties, as well as mistakes in instructions and warnings. Potential liability theories include negligence, misrepresentation, breach of warranty and strict liability in tort. Part II examines liability for inaccurate information published in books, magazines and other tangible media. Although plaintiffs have invoked a variety of theories, such as negligence and strict liability in tort, in general, courts have refused to impose liability, either on doctrinal grounds or because of concerns about the chilling effect of tort liability on the free exchange of ideas.
Part III ventures into the largely unexplored area of liability for “information” that is embodied in computer programs as well as the more conventional forms of information that are disseminated over the internet. Because there are no reported cases on the subject, it is difficult to predict what sort of liability rule would be applied to those who sell computer programs. In theory, stand-alone computer programs could be considered to be “goods” and, therefore, subject to U.C.C. sales warranties; however, it is less certain that courts will also treat them as “products” for purposes of applying strict principles. On the other hand, consumers may be able to recover against product sellers when defective computer programs embedded in a product cause it to malfunction. Part III also considers what liability rules currently apply to inaccurate information that is made available to the public over the internet. What little case law there is suggests that courts will impose liability of some sort when the information provider is trying to sell a product, but not otherwise.
Finally, Part IV considers a bifurcated liability standard that distinguishes between information that is “commercial” in nature and information that is noncommercial. Part IV also concludes that a negligence standard is appropriate for those who disseminate information of a commercial nature. However, publishers of noncommercial information should be subject to tort liability only if they breach an express warranty or engage in fraudulent misrepresentation.
Bainbridge-Mims Professor of Law
University of Alabama School of Law
This article addresses the question: why isn’t RICO used much? RICO, the Racketeer Influenced and Corrupt Organizations Act, both a crime and a civil cause of action, was passed in 1970 with much fanfare. The fanfare was deserved. RICO was an imaginative criminal justice initiative aimed at complex, systemic crime. RICO’s civil cause of action was viewed as a robust tool for plaintiffs and a vital supplement to strained law enforcement resources.
After conducting an in-depth analysis of RICO opinions, reported and unreported, rendered by the federal appellate courts during the seven year time period from 2005-2011, this article has an answer to the question. Criminal RICO’s time has come and gone, but civil RICO’s potential has not yet been realized. This article focuses on recent developments in case law that make civil RICO with regard to class actions, and in the pharmaceutical fraud area, newly viable.
The data analyzed in this article suggests that criminal RICO is anachronistic. Simpler, more streamlined statutes are now available to achieve, far more easily than RICO, the benefits RICO used to uniquely bestow: providing context for isolated acts, linking far-flung actors, penetrating organizations to reach key players, stiff sentences, obtaining forfeiture of property used to commit crime and reaped from crime. Civil RICO, on the other hand, is an untapped resource. Used properly, civil RICO is an optimal private attorney general tool and a boon for plaintiffs. This is true for two reasons. First, RICO mandates treble damages at a time when, because of court rulings and legislative actions, many plaintiffs are limited to little more than single damages. Second, in light of recent court rulings in RICO cases, RICO’s elements dovetail with class action requirements of commonality and predominance, making RICO class actions newly viable.
This article proceeds in eight parts. Part I provides an overview of the RICO statute. Part II explains the methodology used to gather the data in this study. Part III discusses quantitative measurements from the data including how many RICO cases are decided each year and where they are brought. Part IV describes the types of RICO cases brought under both criminal and civil RICO provisions. Part V examines the issues that have dominated RICO court decisions from 2005-2011. Part V discusses how recent court decisions on issues of “enterprise,” proximate causation and “pattern” make civil RICO cases easier than ever to plead and prove. Part VI analyzes the outcome in RICO cases including who wins, who loses, and which circuits favor which side. Part VII focuses on RICO class actions discussing past and future trends, successes, and failures. Part VIII focuses on pharmaceutical fraud cases, noting why they are especially ripe for use of civil RICO.
Distinguished Professor Emeritus of Law
University of South Carolina School of Law