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In its 2006 report on 'Judicial Hellholes',' the American Tort Reform Association ('ATRA') identified the plaintiff bar's aggressive use of public nuisance theories in product liability litigation as one of the key 'rising flames' that is threatening traditional judicial protections for defendants in the country's most plaintiff-friendly jurisdictions. As ATRA explained, 'personal injury lawyers and some attorneys general have been trying to move public nuisance theory far beyond its traditional boundaries in order to avoid the well-defined strictures of products liability law.' American Tort Reform Association, <i>Judicial Hellholes 2006</i>, at 9. In so doing, they seek to tilt the playing field dramatically in their favor by writing out of the common law a plaintiff's obligation of establishing actual causation, proximate causation, and control.
News about lawyers and law firms in the commercial leasing industry.
Highlights of the latest commercial leasing cases from around the country.
Features
Last month's installment discussed how a real estate attorney should create a checklist to bring a transaction from concept to fruition. Part Two of this series addresses compliance issues, dissemination of information, and the level of detail of the checklist.
Features
Some commercial landlords consider indemnification clauses in leases to constitute mere 'legal boilerplate' that do not merit attention from a business perspective. Some lawyers, feeling pressure to minimize the length of lease documents, may seize upon this clause as an opportunity to save space. As a result, it is not uncommon to encounter abbreviated indemnification clauses. At first glance, the language appears suitable. However, when put to the test, these 'lite' clauses often leave landlords unsatisfied. This article demonstrates the value of 'kicking it up a notch' by including ingredients called for in the recipe but often left out of the mix.
Tenants are beginning to address green issues in leases for many reasons, including reduced operating costs over the term of the lease and increased productivity among employees. In addition to corporate green policies or shareholder green initiatives, cities and localities such as Washington, DC; Montgomery County, MD; and Boston have passed green legislation of various kinds. Other cities such as Kansas City, MO are considering similar legislation. Many public entities such as the state of California and the city of Chicago have required compliance with green standards for their public buildings and offices for some time. The difference today with the new green legislation being passed in Washington, DC; Montgomery County, MD; and Boston is that the private sector both for commercial and residential projects of a certain scale, not just the public sector, will be required to comply with green standards. This will be especially true if a private development is receiving taxpayer funds. It is very likely that lawyers, real estate brokers, contractors, and other real estate professionals may need to address green issues when looking at space options, reviewing a lease, and constructing leasehold improvements ' not only for a client but also for their own office space.
Features
Highlights of the latest insurance cases from around the country.
Coverage litigation in the case of <i>Congoleum Corp. v. ACE American Ins. Co.</i> (<i>'Congoleum'</i>), Dkt. No. MID-L-8908-01 (N.J. Super. Ct. May 18, 2007), provides a cautionary tale for insureds tempted to attempt a strategy to foist financial responsibility for asbestos or other mass tort liabilities upon their insurers.
On Aug. 29, 2005, at approximately 6:00 a.m., Hurricane Katrina struck New Orleans. Only two hours later, the levees in New Orleans gave way. As the third-strongest hurricane to make landfall in the United States, Hurricane Katrina was responsible for taking more than 1836 lives and causing more than $81.2 billion in damages ' making it the most expensive natural disaster in U.S. history. The hurricane displaced 500,000 families and destroyed 275,000 homes. James A. Knox, Jr., <i>Causation, The Flood Exclusion, and Katrina,</i> 41 Tort Trial & Ins. Prac. L.J. 901, 902 (2006). The insurance industry has paid more than $40 billion in connection with Hurricane Katrina claims. David Dankwa, <i>New Orleans Port Trumpets Insurance Dispute at RIMS</i>, A.M. Best: BestWire, May 2, 2007. The Insurance Services Office estimates 1.6 million claims will be made ' including residential property, commercial property, vehicle, and vessel claims. <i>See</i> Knox, <i>Causation</i>, at 905.
This article continues the theme of an article I wrote in late 2004 concerning <i>U.S. v. Martignon</i>, 346 F. Supp. 2d 413 (S.D.N.Y. 2004), in which the district court for the Southern District of New York found that 18 U.S.C. §2319A (the 'anti-bootleg statute') was unconstitutional on the ground that Congress had exceeded its delegated power to legislate copyright law when it enacted the statute. My previous article observed that <i>Martignon</i> implicated several important and fundamental public policies in reaching its decision, among which are the protection of intellectual property, constitutional limits on congressional power to enact laws, freedom of expression as protected by the First Amendment, and the necessity of laws threatening a citizen's liberty to be definite and within a legitimate ambit of congressional authority to act.
