Thursday, January 31, 2008
1) One may find these clauses everywhere, especially in terms of service contracts on the internet, in employment, and other types of contracts.
2) Many of these contracts are contracts of adhesion. Discussed here. The UCC Section 2-302 deems a contract of adhesion to have procedural unconscionability.
3) The UCC Section 2-302 finds these hold harmless clauses to have substantive unconscionability if the parties are uneven.
4) The clauses are really limitless insurance policies, to the last button of the offeree.
5) The offeror has made the offeree violate the law by providing unlicensed, unregulated insurance. These contracts may be void for illegality, by inducing unapproved, unregulated insurance coverage.
6) These insurance policies have a value, as business liability insurance granted to the offeror. Let's say, one may buy a liability policy for $1 covering $1000 in liability. Let's say the offeree has assets worth $1 million. To buy a business liability policy for $1 million in coverage by the full assets of the offeree, the offeror would have to pay an insurance company $1000 a year in an insurance premium.
7) The offeror has thus been unjustly enriched by the hold harmless clause, for $1000 a year for the ten years of the contract. The offeree should be able to make the offeror disgorge these unjust profits for the period in which the contract was in effect, $10,000.
What alternative best serves justice? Each party should agree to take financial responsibility for its own mistakes, and to get regular insurance coverage if the risk warrants it.
Wednesday, January 30, 2008
Monday, January 21, 2008
For example, a person uploads an MP3 song. One hundred people download it. Of those, ten like it so much, they buy the CD. If the value of the ten bought CD's is not subtracted from the claim settlement, then the record company has been unjustly enriched. The same is true for the cost of the advertising it would have taken to get ninety people to sample it.
I want to, but I cannot buy Judge Posner's book because of his hypocrisy.
Saturday, January 19, 2008
The physician has superior knowledge from experience in other patients of unreported, new adverse events from a treatment.
If an adverse effect has been listed in the package insert, the patient's knowledge is superior. If he does not know a medical term, medical dictionaries are available on line, for free. The patient not only knows the bad effect from the internet. He has a minute by minute knowledge of its effect on him, all day, every day. This knowledge also relates to a duty to mitigate harm.
The family's knowledge of the adverse effect and their failure to act is an intervening unforeseen cause that increases risk, with a superiority laying between the knowledge of the patient and of the doctor. If the plaintiff is a child, then the family has a statutory duty to protect the plaintiff. They have an affirmative duty to mitigate harm to a minor child.
The doctor sees him a few minutes, every so often, and has the least real world knowledge of any party.
Saturday, January 12, 2008
"The black murder victim has as much value as anyone else. The murderer of the black murder victim should be stopped."
Why do lawyers choke on the V word? Even crusading prosecutors have the criminal as a source of employment. The crime victim does nothing for the lawyer. If the murderer had assets, I have no doubt the lawyer would be quite dramatic about the V word, but in the civil suit.
I am not in a rush. Take a week to use the V word, if you need to.
Getting back to executions.
On a curve of suffering, take the central majority, that within a standard deviation on a rating of suffering.
If the same suffering were inflicted by prison authorities, how many patients' deaths would violate the Eighth Amendment prohibition of cruel and unusual punishment?
The original intent was to prevent outright torture, suffered at the hands of the British. If done to a person by another, how many deaths would qualify as torture?
The death penalty was deemed that in the 1970's and banned because of bias against minorities. Not because of its manner of death. As these inequities were removed by the states, the death penalty was permitted again.
As a soft guide to a definition, any procedure that "shocks the conscience" may be cruel and unusual.
Suffering in death seems universal, and not unusual. The average person's death is quite cruel, and if inflicted intentionally by another would shock my conscience.
If the average person has benefit of medical care at the time of death, does depriving the condemned of medically trained executioners, and medical supervision, does the deprivation violate the Eighth Amendment, and the Equal Protection clauses of the Fifth and Fourteenth Amendments?
And the AMA prohibition of medical participation violates those.