Volume 79, Number 2 (January 2006)
“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 least some care to ensure that its actions did not impose an unreasonable risk of injury on the plaintiff, then we need not ask if the defendant breached its duty of care and if that breach was the actual and “proximate” cause of the plaintiff’s injury. Duty, in short, seems important.
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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, reductively instrumentalist approach to judicial decisionmaking.
These efforts were thought to be complementary. The view was that nineteenth century negligence doctrine, including duty doctrines, as well as the defenses of assumption of risk and contributory negligence, systematically accorded undue protection to landowners and firms, either out of medieval notions of privilege (in the case of the former) or a pro-entrepreneur, every-man-for-himself ideology (in the case of the latter). Seizing on these doctrines, late nineteenth century judges had been all too prone to issue matter-of-law rulings that, for a given class of negligence claims, either assigned responsibility for victims’ injuries to the fault or choices of victims, or wrote them off as harms not traceable to anyone’s wrong. Antiformalism permitted judges to undermine this deep bias in the law by redefining the question being posed to judges in negligence cases. Thus, nominally legal questions that seemed rather obviously to raise issues of responsibility – questions of duty, fault, assumption of risk, etc. – were “revealed” instead to be open-ended policy questions about appropriate levels of liability: whether it would serve the cause of justice or the common good to leave it open to juries to award damages in the class of cases represented by a given case.
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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 seek to discharge – to reduce or eliminate – the claims against them.
As with most mass tort bankruptcies, these cases present a struggle between two sets of comparatively innocent parties: tort claimants (the victims of the sexual abuse) and other creditors, on the one hand, versus the parishioners, or church members, on the other. Unlike most bankruptcies, however, these cases present two dilemmas: one doctrinal and the other constitutional.
The doctrinal dilemma will force bankruptcy courts to choose between the bankruptcy rules that would ordinarily apply in a Chapter 11 case and exceptions imposed by religious liberty principles. The choice will be difficult, for at least three reasons. First, if a diocese were effectively shut down (because all assets were sold) over the objection of the diocese and parishioners, those parishioners, and perhaps the bishop, may credibly claim that this use of the Bankruptcy Code “substantially burdens” their exercise of religion under both the Religion Clauses of the First Amendment and statutory protections for religious actors. Second, for a variety of complex reasons, the internal rules of the churches themselves (that is, canon law) may displace or modify state law rules on property and governance that would ordinarily apply in bankruptcy. Third, use of some of the more intrusive powers ordinarily available in bankruptcy cases, such as appointment of a Chapter 11 trustee, might violate the Establishment Clause by “entangling” state actors in church affairs.
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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 continued to study the role of a board of directors and how that role may be modified in order to prevent future scandals and to protect shareholders adequately. They have analyzed many aspects of the board, ranging from the size, to whether the chief executive officer (“CEO”) should be the chairman, to the importance of truly independent directors.
True director independence is the critical inquiry. An independent director is a type of gatekeeper, providing a check on the CEO’s power, evaluating and criticizing business decisions, and ultimately protecting shareholders’ interests. All of the companies involved in the recent corporate scandals shared one characteristic – they had directors who were not truly independent.
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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 Simplification provisions, which mandate the promulgation and adoption of national standards for electronic transactions, thereby encouraging the use of electronic data systems.
Electronic data transmission has sped the delivery of care and the processing of claims, improved systems for identifying and treating those at risk for disease, facilitated medical research, and helped to detect fraud and abuse. But at the same time, by reducing the logistical obstacles to dissemination that had previously helped to preserve the confidentiality of hard-copy records, shifting from paper-based to electronic information systems has increased the risk that sensitive information may become vulnerable to inappropriate uses and disclosures.
Consequently, with the shift to electronic data management, there has been a concomitant increase in concerns about the confidentiality and privacy of medical information. These concerns have been compounded by changes in the health care delivery system, including the rise in integrated and managed-care networks, which have resulted in more entities maintaining and exchanging information. Increasing numbers of individuals and organizations, including some not even affiliated with physicians or health plans, now have access to medical records
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