Volume 78, Number 6 (September 2005)
Adrienne had just turned thirteen. Late one autumn night, after her siblings and parents had fallen asleep, she crawled out of bed, walked downstairs to the basement, unlocked and opened the sliding glass door, and slipped outside.
It was Mike’s idea. He was a varsity basketball player from a nearby high school. Mike proposed they both sneak out and meet on the street halfway between their houses. Wanting Mike to like her, Adrienne agreed.
Mike never showed.
At that hour, the suburban streets were still. Adrienne walked three miles to Mike’s house, where she found him waiting in his front yard. He signaled for her to come into the house. “Don’t make any noise because my parents are asleep,” he said. “They’d kill me if they found us in here.” So throughout the night, Adrienne remained silent.
Mike led her downstairs into the family room. Now that she was inside his house, a deep fear set in, and Adrienne panicked. In her words, “I just completely left my body.” She does not know how her clothes came off. All she remembers is coming back to the intense pain of Mike ramming inside her. He was ripping her apart. She blacked out.
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Over the last quarter-century, the definition of the American family has transformed from a clearly defined image of mother, father, and natural offspring to a kaleidoscopic vision of adoptive families, extended families, gay and lesbian families, stepparent families, and single-parent families. Although a vast body of law limits the state’s ability to impinge on the parental decisionmaking of intact, biological families, nontraditional families are finding that their legal right to select the persons with whom their children associate is far less protected and even subject to state court review.
The family, which was once a standardized structure, has diversified substantially because of liberal no-fault divorce rules, social acceptance of nonmarital sexuality and cohabitation, and tolerance of same-sex relationships. Detractors assert that America is in the midst of a social breakdown; however, the structure of the American family, rather than disintegrating, is merely evolving into something new.
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Dana Hill is currently serving fifteen years to life in a California prison, and for the past few years, she has struggled to convince the Board of Prison Terms (“Board”) and the Governor that she is suitable for parole and ready to reenter society. Dana is but one victim of modern parole, a draconian system used as a mechanism of enforcing retributive principles. Modern parole falls far short of achieving the goals of rehabilitation and reintegration for which it was created.
When Dana was a child, her stepfather was physically abusive, and for her own safety, she left her family’s home at the age of fifteen. She served a two-year stint in the Navy, beginning at age seventeen. Shortly after being discharged, she befriended her codefendant, Keith Chandler, who introduced her to cocaine. Addicted to cocaine and in need of money, Dana met a man named Marion Canter, who had “both money and a preference for young women.” Shortly after they met, Canter began to pay Dana’s expenses and to allow her to live with him, rent-free, until they had a disagreement and he abruptly evicted her. In need of money, Dana, along with Chandler and another person, devised a plan to rob Canter. During the robbery, Dana’s codefendants insisted that she hit Canter over the head to subdue him, but the one blow that Dana inflicted was insufficient to render Canter unconscious. After Dana struck Canter, her codefendants wrestled him to the bed and proceeded to strangle him with an electrical cord. Frightened by her codefendants’ actions, Dana left the room, and when she returned five to ten minutes later, her codefendants were in the final stages of strangling Canter. About two weeks later, Dana turned herself over to the police department and cooperated in the investigation. In 1984, Dana pleaded guilty to second-degree felony murder for her involvement in Canter’s death.
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Environmental toxic tort cases often pose difficult problems of proof A substance’s toxicity may be unknown or uncertain. A combination of factors may cause a plaintiffs injury, and the injury may arise many years after a plaintiff’s exposure to a toxic substance. On the one hand, some plaintiffs, particularly those with “signature” illnesses or whose illnesses occur as a cluster of cases, may be able to gather sufficient evidence to support a tort action. On the other hand, it is likely that many environmental injury victims simply fail to recognize their illnesses as tortious injuries and never receive compensation. Cancer and various respiratory ailments, for instance, can resultfrom exposure to commonly found and commonly released pollutants. Because of the difficulty of identifying potential defendants and proving causation, such cases simply fall outside of the tort system. This leaves social costs externalized and victims uncompensated.
In response to this problem, this Article proposes a risk-based administrative system of liability and compensation for exposure to environmental pollutants. At the time pollutants are released, major pollution emitters would pay levies. The levies would be based on the amount of pollutants discharged, the likely exposure of persons to those pollutants, the risk of harmfrom that exposure, and the expected costs of that harm to the victims. Individuals would receive compensation according to the health risk borne by each person as a result of their exposure to the pollution. This compensation-for-risk approach avoids troublesome case-by-case determinations of specific causation. This approach also provides compensation prior to illness, which may facilitate preventive measures. Although the scientific information necessary to support such a system is not yet available, advances in toxic ogenomics, biomonitoring, and environmental monitoring will permit implementation of such a system in the not-too-distantfuture.
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