Volume 30, Issue 1
Fall 1996

Articles

A Proposal to Abolish the Office of United States Trustee
Peter C. Alexander
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Curtailing the Economic Distortions of the Mortgage Interest Deduction
William T. Mathias

The Three-Judge District Court in Voting Rights Litigation
Michael E. Solimine

Note

Democratizing HMO Regulation to Enforce the “Rule of Rescue”
Kent G. Rutter

Volume 30, Issues 2 & 3
Winter and Spring 1997

Products Liability Symposium

Articles

Restating the Law: The Dilemmas of Product Liability
Robert L. Rabin
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A New Legislation: Remarks on the Draft Restatement of Products Liability
Marshall S. Shapo

Design Defects Under the Proposed Section 2(b) of the Restatement (Third) of Torts: Products Liability — A Judge’s View
Hon. William A. Dreier
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Risk-Utility Balancing in Design Defect Cases
David G. Owen

Constructing a Roof Before the Foundation is Prepared: The Restatement (Third) of Torts: Products Liability Section 2(b) Design Defect
Frank J. Vandall
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Liability of Suppliers of Natural Raw Materials and the Restatement (Third) of Torts: Products Liability—A First Step Toward Sound Public Policy
M. Stuart Madden

Inadequate Product Warnings and Causation
Mark Geistfeld
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Risk-Utility Analysis in the Failure to Warn Context
Paul D. Rheingold and Susan P. Feinglass

Warning Defect: Origins, Policies, and Direction
Robert E. Keeton
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Regulatory Standards and Products Liability: Striking the Right Balance Between the Two
Teresa Moran Schwartz

Statutory Compliance and Tort Liability: Examining the Strongest Case
Michael D. Green
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Timmy Tumble v. Cascade Bicycle Co.: A Hypothetical Case Under the Restatement (Third) Standard for Design Defect
Hildy Bowbeer, Todd A. Cavanaugh, and Larry S. Steward

Arriving at Reasonable Alternative Design: The Reporters’ Travelogue
James A. Henderson, Jr. and Aaron D. Twerski

Note

The Constitution, the White House, and the Military HIV Ban: A New Threshold for Presidential Non-Defense of Statutes
Chrysanthe Gussis

Volume 30, Issue 4
Summer 1997

Articles

Facing the Facts: An Empirical Study of the Fairness and Efficiency of Foreclosures and a Proposal for Reform
Debra Pogrund Stark
go to abstract

RU 486 Examined: Impact of a New Technology on an Old Controversy
Gwendolyn Prothro
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The New “Pick-Your-Own” Statutes: Delineating Limited Immunity From Tort Liability
Terence J. Centner
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Notes

Overcoming Collective Action Problems: Enforcement of Worker Rights
Louise Sadowsky Brock
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FDA Approved? A Critique of the Artificial Insemination Industry in the United States
Karen M. Ginsberg
go to abstract

A Proposal to Abolish the Office of United States Trustee
Peter C. Alexander

      In this Article, Professor Alexander reviews the creation and development of the Office of U.S. Trustee, an agency within the executive branch of the federal government, authorized to oversee the administration of all bankruptcy estates. Alexander asserts that the agency has expanded its scope beyond its original mission, becoming a huge bureaucracy that is widely criticized. By contrast, Alexander also discusses the Bankruptcy Administrator Program, a bankruptcy oversight system that exists within the federal districts in Alabama and North Carolina. He presents the positive and negative comments about that program and concludes that it is a more efficient system than the US Trustee Program. Lastly, Alexander proposes his own model for bankruptcy case oversight, one that combines private trustees and a decentralized management structure, as a substitute for either the US Trustee Program or the Bankruptcy Administrator Program.

Restating the Law: The Dilemmas of Product Liability
Robert L. Rabin

        Tracing products liability law from its origins to present day developments, Professor Rabin discusses the long-standing presence of interwoven strands of contract and tort ideology, as well as the perennial tensions between strict liability and negligence. These themes are evident both in the distinctly influential California case law and in the two Restatement efforts to systematize the doctrine that has emerged nationally. Rabin identifies the manner in which foundational ideological precepts of consumer expectations and enterprise liability have contributed to a continuously dynamic, if often unsettled, debate over the appropriate regime for resolving product injury claims.

Design Defects Under the Proposed Section 2(b) of the Restatement (Third) of Torts: Products Liability — A Judge’s View
Hon. William A. Dreier

      The proposed section 2(b) of the Restatement (Third) of Torts: Products Liability has caused a great deal of controversy, and many are concerned that this section represents a radical change in the law. This Article explains that section 2(b) in fact provides a pragmatic, workable tool for judges and attorneys to explain and prove a manufacturer’s liability for a defective product. It sheds much of the baggage of the Restatement (Second) of Torts section 402A and its commentaries, yet preserves the essence of the theory behind section 402A. The criticisms of the new language are adequately met in the comments, except possibly for problems with (1) egregiously unsafe products, or (2) products with little or no efficacy that should not be marketed at all, but for which there is no safer design. Both problems can still be cured by commentary in the final draft to be passed upon in May 1997.

Constructing a Roof Before the Foundation is Prepared: The Restatement (Third) of Torts: Products Liability Section 2(b) Design Defect
Frank J. Vandall

      The Restatement (Third) of Torts: Products Liability section 2(b) is a wish list from manufacturing America. It returns products liability law to something more restrictive than negligence. What is new from the Reporters is that their proposal is written on a clean sheet of paper. Messy and awkward concepts such as precedent, policy, and case accuracy have been brushed aside for the purpose of tort reform. There has been almost no attempt to evaluate strict liability precedent or the policies underlying previous cases and the Restatement (Second) section 402A. Section 2b (the roof) has been drafted with little consideration of the policies underlying section 402A (the foundation) or the cases favoring the consumer (the support beams) decided over the last thirty years. The Restatement (Third) of Torts: Products Liability implies that legal analysis is farcical. Avoiding legal analysis is certain to cause section 2(b) to lose convincing power among those searching for solutions to tough cases involving injuries caused by defective products.

      The market failure that provides an economic justification for imposing tort liability on product sellers for design and manufacturing defects also justifies tort liability for inadequate warnings. In general, the liability standards proposed in the most recent draft of the Restatement (Third) of Torts: Products Liability have the potential to remedy this market failure, although this purpose is not furthered by the Draft’s requirement that plaintiffs prove that an adequate warning would have prevented the injury. Unless courts presume causation (as most currently do), sellers will not have sufficient incentive to warn about unavoidable product risks. Moreover, there is no persuasive reason to curtail liability for inadequate warnings by adopting a more stringent causation standard, because juries can resolve competently the issues involved in a determination of whether a warning is inadequate. The presumption of causation therefore should be retained by the Restatement (Third). 

Warning Defect: Origins, Policies, and Direction
Robert E. Keeton

       On a spectrum from the polar extreme of generality to the opposite pole of specificity, "What should warnings say?" is near the extreme in its degree of generality. A question phrased this way invites a correspondingly generic response. Such a response is not very useful to the trial judge and lawyers who regularly must fashion clear explanations on the law of warning defect for layperson juries. As used here, this question is not intended as a signal inviting just any kind of response that might be acceptable under the mores of casual conversation. It is a more serious request for a very direct and substantive response. For clarification, consider these two further variations upon it:

What does the law say warnings should say?
What legal consequences follow if warnings do not say what the law says they should say?

Statutory Compliance and Tort Liability: Examining the Strongest Case
Michael D. Green

      Professor Green addresses the matter of the proper balance between the tort system and regulation in the context of prescription drugs and the FDA’s vigorous oversight of the industry. He articulates several reasons why a regulatory compliance defense, in which tort law would defer to FDA regulation, is quite attractive. Despite the superior expertise of the FDA in assessing the benefits and risks of a drug, a regulatory compliance defense is considerably more problematical than might appear at first glance. Ascertaining compliance with FDA requirements could be a lengthy and complicated inquiry that would either replace or supplement the issues that arise in current drug product liability litigation. Particularly in the period after a drug is approved and marketed, yet when additional risks emerge, a regulatory compliance defense might impede efforts to assure that current information is promptly disseminated to physicians who make prescribing decisions. Professor Green concludes by suggesting that a regulatory compliance defense may have an impact on the types of drug litigation that occur, but expresses doubt that drug litigation would disappear.

Facing the Facts: An Empirical Study of the Fairness and Efficiency of Foreclosures and a Proposal for Reform
Debra Pogrund Stark

        Lenders view real estate foreclosures as too expensive and time consuming a process which needlessly increases the costs of making loans. Others complain that the foreclosure process fails to adequately protect the borrower’s equity (the value of the property in excess of the debt secured by the property) in the mortgaged property.
        This article tests these views by gathering new data on the fairness and efficiency of the foreclosure process. Based on the data collected (which confirms some assumptions but disproves others), the author proposes a reform of the foreclosure process to promote the interest of both lenders and borrowers. Under the proposal, the foreclosure process should take less time and cost less money, yet provide borrowers with a more meaningful opportunity to prevent the forfeiture of their equity in the mortgaged property. The author recommends that Congress consider the data from this study and enact this reform proposal in place of the current draft legislation—legislation which would unnecessarily sacrifice the interests of defaulting borrowers in order to achieve a faster and cheaper foreclosure process.

RU 486 Examined: Impact of a New Technology on an Old Controversy
Gwendolyn Prothro

        Abortion is an extremely divisive issue in American politics and culture. Prothro begins this Article by analyzing the current legal standards governing reproduction, which draw a sharp distinction between abortion and contraception. Prothro then examines the function of RU 486, demonstrating that it acts both as a contraceptive and as an abortifacient. Because of this dual capacity, RU 486 does not fit neatly into the current legal framework. Prothro concludes this Article by arguing that RU 486 should force the Supreme Court to create a new framework for the "procreative right." Prothro argues that this new framework should treat the procreative right as a continuum, basing legal protections on a close analysis of the rights at stake, rather than on artificial distinctions that do not accurately mirror the physiological process of pregnancy. This new continuum analysis, Prothro contends, will expand and deepen the abortion debate by focusing it on the broader issues underlying the current debate.

The New “Pick-Your-Own” Statutes: Delineating Limited Immunity From Tort Liability
Terence J. Centner

        Over the past several years, state legislatures have been asked to provide immunity from liability for members of certain interest groups including providers of horses, risky sport activities, and “pick-your-own” produce. This Article reports on statutory provisions providing tort immunity for producers who allow the public to come onto their property to harvest crops. Provisions allowing profit-making businesses to qualify for tort immunity are not new, but the expansion to cover pick-your-own operators signifies a significant policy change regarding personal liability. The pick-your-own provisions may indicate a policy shift imposing greater responsibility for persons engaging in activities to use care in avoiding injuries and less responsibility for qualifying service providers. As legislatures contemplate new immunity provisions, Professor Centner advises that these new provisions should be harmonized with existing standards and liability exceptions. When compared to the sport activity statutes, he concludes that the new pick-your-own statutes fail to provide sufficient protection for pick-your-own operations.

Overcoming Collective Action Problems: Enforcement of Worker Rights
Louise Sadowsky Brock

        In a period of new employment laws, it is important to determine how those laws are enforced, why enforcement of those laws is sometimes limited and how enforcement can be improved. This Note discusses the ways in which the theory of collective action limits enforcement of three employee rights statutes: the Fair Labor Standards Act, the Occupational Safety and Health Act, and the Worker Adjustment and Retraining Notification Act. Enforcement mechanisms such as class action lawsuits, administrative agencies, employee participation groups, and labor unions represent potential methods of overcoming collective action problems. Each method has its benefits, and the three statutes must be reformed to increase the availability of all four methods. Ultimately, however, employee participation groups represent the best means for improving enforcement.

FDA Approved? A Critique of the Artificial Insemination Industry in the United States
Karen M. Ginsberg

        Artificial insemination by donor is becoming an increasingly popular means to achieving parenthood. While the majority of couples use artificial insemination to overcome fertility problems, many recipients use artificial insemination to avoid passing a genetic disease to their children. However, case studies reveal the inherent dangers of artificial insemination, namely the lack of proper screening methods to avoid passing genetic diseases to children born by artificial insemination. State-by-state regulation, federal guidelines, and private adjudication have all proven to be inadequate methods of regulating the artificial insemination industry. Ginsberg proposes federal regulation as the only means of achieving a safe artificial insemination industry. The proposed federal regulation would include better genetic screening, a more efficient national sperm donor system, and limited disclosure to recipients of artificial insemination and their children. These measures would help to ensure that couples using artificial insemination get what they expect—healthy sperm, a safe artificial insemination process, and ultimately, a healthy child.