Law Commons^™

Sovereign Immunity And Interstate Government Tort, Louise Weinberg

University of Michigan Journal of Law Reform

This paper argues that the Supreme Court made a serious mistake last term, when, in a case of interstate government tort, it tore up useful options that should be available to each state for the rare cases in which they would be of service. In seeking to insulate a state from liability when its employee intrudes on a sister state’s territory and causes injury there, the Court stripped every state of power, in cases of interstate government tort, to try injuries occurring on its own territory to its own residents—an unprecedented disregard of a state’s acknowledged traditional interests. Indeed, the …

Hernandez, Bivens, And The Supreme Court’S Expanding Theory Of Judicial Abdication, William J. Aceves

Michigan Law Review Online

This Essay examines the Hernandez decision and critiques the Court’s expanding theory of judicial abdication, an approach with profound implications for civil rights and the future of the judiciary. While Hernandezinvolved a cross-border shooting, the Court’s reasoning extends to all facets of civil litigation. Accordingly, this Essay proposes a new theory of judicial engagement that would empower federal courts to grant relief for constitutional claims against federal officials. It is a theory founded in extant constitutional jurisprudence that the Court has used for over a century to apply the Bill of Rights to state and local governments—an approach that …

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker

Michigan Law Review

A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a …

A Post-Spokeo Taxonomy Of Intangible Harms, Jackson Erpenbach

Michigan Law Review

Article III standing is a central requirement in federal litigation. The Supreme Court’s Spokeo decision marked a significant development in the doctrine, dividing the concrete injury-in-fact requirement into two subsets: tangible and intangible harms. While tangible harms are easily cognizable, plaintiffs alleging intangible harms can face a perilous path to court. This raises particular concern for the system of federal consumer protection laws where enforcement relies on consumers vindicating their own rights by filing suit when companies violate federal law. These plaintiffs must often allege intangible harms arising out of their statutorily guaranteed rights. This Note demonstrates that Spokeo’s …

Minimum Virtual Contacts: A Framework For Specific Jurisdiction In Cyberspace, Adam R. Kleven

Michigan Law Review

As the ubiquity and importance of the internet continue to grow, courts will address more cases involving online activity. In doing so, courts will confront the threshold issue of whether a defendant can be subject to specific personal jurisdiction. The Supreme Court, however, has yet to speak to this internet-jurisdiction issue. Current precedent, when strictly applied to the internet, yields fundamentally unfair results when addressing specific jurisdiction. To better achieve the fairness aim of due process, this must change. This Note argues that, in internet tort cases, the “express aiming” requirement should be discarded from the jurisdictional analysis and that …

To Touch And Concern The United States With Sufficient Force: How American Due Process And Choice Of Law Cases Inform The Reach Of The Alien Tort Statute After Kiobel, Karima Tawfik

Michigan Journal of International Law

This Note explores the post-Kiobel ATS cases and argues that the Fourth Circuit’s approach to considering claims that manifest a close connection to the United States as potentially entitling the plaintiff to relief under the ATS is preferable to approaches that categorically bar claims when the alleged conduct has occurred abroad. Part I describes the Kiobel decision in more depth and the subsequent ATS case law to outline the contours of recent circuit cases. Part II demonstrates how domestic personal jurisdiction and choice of law principles weigh in favor of a more expansive reading of the ATS, as adopted …

Too Many Cooks In The Climate Change Kitchen: The Case For An Administrative Remedy For Damages Caused By Increased Greenhouse Gas Concentrations, Benjamin Reese

Michigan Journal of Environmental & Administrative Law

Recent federal and state court decisions have made clear that federal common law claims against emitters of greenhouse gases are not sustainable; however, those same courts seem to have given state common law tort claims the green light, at least if the claims are brought in the state where the polluters are located. This Note contends that such suits are not an adequate remedy for those injured by climate change because they will face nearly insurmountable barriers in state court, and because there are major policy-level drawbacks to relying on state tort law rather than a federal solution. This Note …

Pro-Whistleblower Reform In The Post-Garcetti Era, Julian W. Kleinbrodt

Michigan Law Review

Whistleblowers who expose government ineptitude, inefficiency, and corruption are valuable assets to a well-functioning democracy. Until recently, the Connick–Pickering test governed public employee speech law; it gave First Amendment protection to government employees who spoke on matters of public concern—-such as whistleblowers-—so long as the government’s administrative concerns did not outweigh the employees’ free speech interests. The Supreme Court significantly curtailed the protection of such speech in its recent case, Garcetti v. Ceballos. This case created a categorical threshold requirement that afforded no protection to speech made as an employee rather than as a citizen. Garcetti’s problematic rule has forced …

An Experiment In Law Reform: Amchem Products V. Windsor, Patrick M. Hanlon

University of Michigan Journal of Law Reform

The Supreme Court's 1997 decision in Amchem Products, Inc. v. Windsor struck down the most ambitious settlement class action ever attempted. The settlement was, however, the logical outgrowth of the federal judiciary's efforts in the early 1990s to resolve a "disaster" of "critical proportions." Many factors, not least the Supreme Court's decision in Amchem, turned the tide against this trend. Ironically, however, the post-Amchem world has come to look a lot like Amchem. The settlement's central feature-deferral of unimpaired claims to assure the availability of resources to compensate the sick-was subsequently incorporated (either by statute or through judicial decision) into …

A Financial Economic Theory Of Punitive Damages, Robert J. Rhee

Michigan Law Review

This Article provides a financial economic theory of punitive damages. The core problem, as the Supreme Court acknowledged in Exxon Shipping Co. v. Baker, is not the systemic amount of punitive damages in the tort system; rather it is the risk of outlier outcomes. Low frequency, high severity awards are unpredictable, cause financial distress, and beget social cost. By focusing only on offsetting escaped liability, the standard law and economics theory fails to account for the core problem of variance. This Article provides a risk arbitrage analysis of the relationship between variance, litigation valuation, and optimal deterrence. Starting with settlement …

"What Do I Do About This Word, 'Unavoidable'?": Resolving Textual Ambiguity In The National Childhood Vaccine Injury Act, Jason Lafond

Michigan Law Review First Impressions

The quote in the title of this Essay comes from Justice Breyer, expressing his frustration with the language of section 22(b)(1) of the National Childhood Vaccine Injury Act. Justice Breyer made this comment during the October 12, 2010, oral argument in Bruesewitz v. Wyeth, Inc., a case about the availability of state tort claims based on vaccine design defects. The question before the Court was whether that section expressly preempts such claims against vaccine manufacturers "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions …

Two Masters, Carl E. Schneider

Articles

American government rests on the principle of distrust of government. Not only is power within the federal government checked and balanced. Power is divided between the federal government and the state governments. So what if a state law conflicts with a federal law? The Constitution says that the "Constitution, and the Laws of the United States ... shall be the supreme Law of the Land; ... any Thing in the ... Laws of any State to the Contrary notwithstanding." Sometimes the conflict between federal and state law is obvious and the Supremacy Clause is easily applied. But sometimes ...

Generic Preemption: Applying Conflict Preemption After Wyeth V. Levine, Hannah B. Murray

Michigan Telecommunications & Technology Law Review

If a generic manufacturer does not have control over its safety warnings, can it comply with the obligations posed by state tort liability? State failure-to-warn actions evaluate whether a product manufacturer has met its obligation to warn consumers about known dangers associated with its product. In essence, if a manufacturer knows about a potentially dangerous outcome, it has a duty to warn its consumers. If the generic manufacturer can comply with a state duty to warn only by changing a label that the FDA will not allow it to change, it becomes impossible for the corporation to meet both requirements. …

Requiem For Section 1983, Paul D. Reingold

Articles

Section 1983 no longer serves as a remedial statute for the people most in need of its protection. Those who have suffered a violation of their civil rights at the hands of state authorities, but who cannot afford a lawyer because they have only modest damages or seek only equitable remedies, are foreclosed from relief because lawyers shun their cases. Today civil rights plaintiffs are treated the same as ordinary tort plaintiffs by the private bar: without high damages, civil rights plaintiffs are denied access to the courts because no one will represent them. Congress understood that civil rights laws …

Limiting A Constitutional Tort Without Probably Cause: First Amendment Retaliatory Arrest After Hartman, Colin P. Watson

Michigan Law Review

Federal law provides a cause of action for individuals who are the target of adverse state action taken in retaliation for their exercise of First Amendment rights. Because these constitutional torts are "easy to allege and hard to disprove," they raise difficult questions concerning the proper balance between allowing meaningful access to the courts and protecting government agents from frivolous and vexatious litigation. In its recent decision in Hartman v. Moore, the U.S. Supreme Court tipped the scales in favor of the state in one subset of First Amendment retaliation actions by holding that plaintiffs in actions for retaliatory …

The Foggy Road For Evaluating Punitive Damages: Lifting The Haze From The Bmw/State Farm Guideposts, Steven L. Chanenson, John Y. Gotanda

University of Michigan Journal of Law Reform

In this Article, Professors Chanenson and Gotanda propose that courts treat comparable maximum criminal or civil legislative fines as a presumptive due process limit on punitive damage awards. The Article reviews the manner in which courts have implemented the three-guidepost framework for constitutional review of punitive awards laid out by the Supreme Court in BMW of North America, Inc. v. Gore and in State Farm Mutual Automobile Insurance Co. v. Campbell. Finding that courts have struggled to articulate a coherent rationale and methodology for review of such awards, the authors propose a greater reliance on the third guidepost of …

An Essay On Texas V. Lesage, Christina B. Whitman

Articles

When I was invited to participate in this symposium, I was asked to discuss whether the causation defense developed in Mt. Healthy City School District Board of Education v. Doyle applied to cases challenging state action under the Equal Protection Clause of the Fourteenth Amendment. As I argue below, it seems clear that Mt. Healthy does apply to equal protection cases. The Supreme Court explicitly so held last November in Texas v. Lesage. But the implications of Lesage go beyond questions of causation. The opinion suggests that the Court may be rethinking (or ignoring) its promise in Carey v. Piphus …

The Constitutionality Of Taxing Compensatory Damages For Mental Distress When There Was No Accompanying Physical Injury, Douglas A. Kahn

Articles

Since 1919, statutory tax law has excluded from gross income compensatory damages received on account of a personal injury or sickness.1 The current version of that exclusion is set forth in section 104 (a) (2) of the Internal Revenue Code of 1986.2 The construction of that exclusion, both by the courts and by the Commissioner, underwent significant alterations over the 80-year period that the provision has existed.3 The statute itself was amended several times, most recently in 1996.4 It is the 1996 amendment that has raised a constitutional issue concerning the validity of a portion of the statute.5

Emphasizing The Constitutional In Constitutional Torts (Symposium On Section 1983), Christina B. Whitman

Articles

It has been surprisingly difficult to extricate constitutional litigation from torts. In this Article I would like to resist once more' the idea that tort doctrines and tort categories provide a useful model for constitutional decision-making. When it comes to deciding the merits of a constitutional claim, torts is a distraction. That is the case whether torts serves as a positive model for the constitutional cause of action or as an alternative to be shunned. As part of this argument, I also question the claim2 that Monroe v. Pape,3 the 1961 case that opened the door for damages relief under …

Affirmative Duties, Systemic Harms, And The Due Process Clause, Barbara E. Armacost

Michigan Law Review

Part I of the article lays out the major academic criticisms of DeShaney v. Winnebago County Department of Social Services. Part II describes the contours of liability for failure to protect in tort. Part III offers a positive explanation for the strong presumption against governmental liability in failure-to-protect cases: permitting broad liability for failure to protect would involve the courts in second-guessing political decisions about the use of limited community resources. This explanation has two parts. First, as a matter of institutional competence, budgetary decisions about the appropriate level and distribution of public services are better suited to political rather …

Taxation Of Damages After Schleier - Where Are We And Where Do We Go From Here?, Douglas A. Kahn

Articles

This article will examine the reasoning of the Schleier decision and speculate as to how taxation of pre-1996 damages will likely apply in light of Schleier. First, the article will set forth a very brief history of the judicial and administrative constructions of the statutory exclusion, and explore tax policy justifications for providing an exclusion from gross income for certain damages. These latter two items (set forth in Parts II and III of this article) are areas that have been extensively addressed previously by several commentators, including the author of this article.' The reason for exploring tax policy issues is …

Compensatory And Punitive Damages For A Personal Injury: To Tax Or Not To Tax, Douglas A. Kahn

Articles

Since the adoption in 1919 of the Revenue Act of 1918, damages received on account of personal injuries or sickness have been excluded by statute from gross income.1 This exclusion, which does not apply to reimbursements for medical expenses for which the taxpayer was previously allowed a tax deduction,2 is presently set forth in section 104(a)(2). One might expect that a provision having recently attained the ripe age of 75 years without change in its basic language would have a settled meaning. However, recent litigation under section 104(a)(2) bristles with unsettled issues. Does the exclusion apply to punitive damages? To …

Government Responsibility For Constitutional Torts, Christina B. Whitman

Articles

This essay is about the language used to decide when governments should be held responsible for constitutional torts.' Debate about what is required of government officials, and what is required of government itself, is scarcely new. What is new, at least to American jurisprudence, is litigation against government units (rather than government officials) for constitutional injuries. 2 The extension of liability to institutional defendants introduces special problems for the language of responsibility. In a suit against an individual official it is easy to describe the wrong as the consequence of individual behavior that is inconsistent with community norms; the language …

Affirmative Duty And Constitutional Tort, Michael Wells, Thomas A. Eaton

University of Michigan Journal of Law Reform

This Article argues that the Bowers principle is wrong. It examines the issues of doctrine and policy that bear on the affirmative duty question in constitutional tort and contends that affirmative duties may be imposed even though constitutional rights are generally negative in character, as a matter of federal constitutional common law. It ·develops a foundation in doctrine and policy, so far lacking in the opinions, to support these duties and to place proper limits upon them.

Part I identifies issues of tort policy that arise in affirmative duty cases, while Part II addresses the distinctive problems that come up …

Constitutional Torts, Christina B. Whitman

Articles

In this Article, I analyze the significance of the overlap between state tort law remedies and remedies under section 1983. I conclude that the dissatisfaction with section 1983 cannot fairly be attributed to the fact that it has been read to provide a remedy that "supplements" state law. I argue that most of the anxiety over constitutional damage actions under section 1983 can be understood - and resolved - only by focusing on two other questions. The first of these concerns the appropriate reach of the Constitution. Ambivalence about section 1983 reflects, in part, a fear that the federal Constitution …

The Involuntary Public Figure Class Of Gertz V. Robert Welch: Dead Or Merely Dormant?, Dale K. Nichols

University of Michigan Journal of Law Reform

This article does not resolve the debate over involuntary public figures but argues instead that in light of the Court's pronouncements in Firestone, Hutchinson and Walston, the involuntary class should be abolished. Part I briefly traces the evolution and significance of public figure status in defamation law, and reviews various interpretations of the involuntary public figure references in Gertz. Part II examines the status of the involuntary class after Firestone, Hutchinson and Walston, and discusses the extent to which future use of the class remains logically consistent with those decisions. Finally, the article considers the merits of …

Emerging Standards For Implied Actions Under Federal Statutes, Gary W. Klotz

University of Michigan Journal of Law Reform

This article will examine the theoretical basis for finding implied causes of action in legislation and the development of the implication doctrine in the federal courts. In particular, the Cort v. Ash case will be discussed, both in terms of the standards articulated by the Supreme Court in dicta and the potential impact of Cort on the law of implied remedies.

The 'Source Of Law' In The Panama Canal Zone, Joseph H. Drake

Articles

A case just decided in the Supreme Court of the United States, coming to that court from the Canal Zone, shows the great difficulties under which our courts labor when they are called on to interpret and administer the law in our extra-continental possessions. The courts have apparently had the most difficulty in amalgamating the Roman law and the common law in cases involving questions of delictual liability. In the case of Fernandez v. Perez (1906), 202 U. S. 80, the procedural question was presented as to the validity of an action on the case for the wrongful levy of …

A Modern Evolution In Remedial Rights - The Declaratory Judgment, Edson R. Sunderland

Articles

In early times the basis of jurisdiction is the existence and the constant assertion of physical power over the parties to the action, but as civilization advances the mere existence of such power tends to make its exercise less and less essential. If this is true, it must be because there is something in civilization itself which diminishes the necessity for a resort to actual force in sustaining the judgments of courts. And it is quite clear that civilization does supply an element which is theoretically capable of entirely supplanting the exercise of force in the assertion of jurisdiction. This …

The Liability Of The Common Carrier As Determined By The Recent Decisions Of The United States Supreme Court, Edwin C. Goddard

Articles

An understanding of the present day liability of the common carrier under conditions as they exist, especially in interstate shipments, is best reached by an historical journey from the early decisions of the Supreme Court of the United States to the end of the year just past.