“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.
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.
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.
Twenty-five years ago, federal courts opened the door to the biotechnology revolution by granting patents on genetic inventions. Since that time, decisions across five disparate doctrines reflect confusion over the question of whether the definition of a biotechnology invention should include things beyond the state of the art at the time of the invention. Reaching beyond the state of the art may make sense for mechanical inventions, but it is wreaking havoc in doctrines related to biotechnology.
This Article argues that in uncertain arts such as biotechnology, the definition of an invention should be limited to the state of the art at the time of the invention. Granting rights beyond knowledge at the time of the invention projects an enormous shadow across the future and creates untenable results. The temptation to restrain that reach has led to strange doctrinal twists and an unworkable body of law. After twenty-five years of experience, it is time to rethink our view of the proper shape of rights in this realm.
Use of the phrase “ownership society” to designate an end state toward which one believes that American policy should strive entails certain commitments. The usage cannot mean merely that public policy ought to seek to bring about a society in which some people own some things; we have lived in that society, without interruption, since the first days of our republic. Nor can use of the phrase contemplate merely a society whose law recognizes, vindicates, and protects property rights; again, that has been a central feature of our polity since its first days under our present constitution. To what, then, can the notion of an “ownership society” refer? It must refer to a society whose members are publicly conscious of the individual and the societal value of ownership, and who work systematically to propagate that value among themselves. The “ownership society” (“OS”), that is, not only recognizes, preserves, and protects ownership, but also it celebrates, fosters it, and spreads it. It is, in short, a latter-day rendition of that venerable American ideal, the Jeffersonian “yeoman republic.”
But making a society-shaping and enduring public commitment to ownership promotion raises several antecedent practical tasks that must be addressed both sensibly and sensitively if the project is to put down roots, flourish, and endure. First, the project must be conceived, articulated, and implemented in a manner consistent with the core values and political self-understandings of those who comprise the society that wills to be an OS. Where the society has featured multiple such valuational and political traditions over time, this task further requires that some synthesis of, or overlapping consensus among, these traditions be derived and articulated: an ideologically neutral yet nonetheless value-expressive language must be wrought.
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.
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.
Habeas is an anomaly in the law of federal courts. For decades now, state courts have solely and finally resolved federal issues with minimal federal superintendency. For nearly as long, however, the federal writ of habeas corpus has not adhered to this general paradigm and has been interpreted to permit federal courts to revisit anew federal issues litigated before state courts in the course of state criminal prosecutions. Indeed, the special treatment of habeas is so longstanding that it is a near-axiomatic contour in the fabric of federal courts law. This Article questions that axiom. Starting from a premise placing high value on theoretical consistency (a premise subject to legitimate criticism), I examine the functional and theoretical differences between the paradigm that typically governs adjudication of federal issues in the state courts (which I dub the “paradigmatic construct”) and the paradigm that applies to adjudication of federal issues in state criminal prosecutions and in subsequent, federal habeas corpus proceedings (the “habeas construct”). This deconstructive exercise reveals that these two constructs are animated by fundamentally different views of the interrelationship of the state and federal judiciaries. Starting from the further premise that the paradigmatic construct is the appropriate baseline (a premise also subject to debate), I then examine two very different approaches to eliminate this theoretical discord. The less aggressive approach attempts to cure the discord by providing a new theoretical basis for habeas that justifies its current contours. The more aggressive approach attempts to cure the discord by reshaping the contours of the writ to treat adjudications of federal issues in the habeas construct more like they are treated under the paradigmatic construct.
The powerful morbidity and mortality effects of diet combined with growing concern about the obesity “epidemic” have led public health scholars and public interest advocates to call for taxes on food. 3 The proposals fall into two different categories. First, there are “junk food taxes” on less nutritious foods such as soft drinks, candy, or snack foods. Second, there are more ambitious taxes that would apply to a much broader range of foods and food components.
Municipal annexation receives a mixed reaction in the analysis of metropolitan organization. Some commentators, such as David Rusk or Laurie Reynolds, view annexation as the savior of cities that could not otherwise expand in ways necessary for economic success. For these advocates of liberal municipal expansion, annexation promises to reduce ethnic and racial segregation, residential density, inefficiencies allegedly related to metropolitan fragmentation, and per capita costs of public services. They similarly claim that annexation frustrates efforts by nonresidents to take advantage of municipal resources without paying a fair share for their upkeep and enables central cities to increase local tax revenues and control land use at the urban fringe.