Law Commons^™

A New Legislation: Remarks On The Draft Restatement Of Products Liability, Marshall S. Shapo

University of Michigan Journal of Law Reform

This being a law school in a university, I would like to begin my discussion of the present draft not with doctrinal analysis, but rather by attempting to frame the question from a broader set of perspectives. I shall draw on the intricate relations of law with the society it governs and the reflection of those relations in the literature that remains at the heart of great universities.

Risk-Utility Balancing In Design Defect Cases, David G. Owen

University of Michigan Journal of Law Reform

Design defectiveness is generally defined in terms of a risk-utility balance, the form of liability test adopted by the Restatement (Third) of Torts: Products Liability. However, confusion abounds in how courts formulate such balancing tests. A national survey of recent appellate court decisions reveals that courts generally define the balance in terms of the product's risks and utility, a formulation which appears to call for weighing the product's global costs against the product's global benefits. So defined, the design defect test is incorrect. What appellate courts mean for juries to decide, and what juries ordinarily do in fact decide, …

Restating The Law: The Dilemmas Of Products Liability, Robert L. Rabin

University of Michigan Journal of Law Reform

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.

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

University of Michigan Journal of Law Reform

From its inception, the law governing liability for damage or injuries caused by defective products has pertained to potential liability for products that have been processed, finished, or fabricated. Naturally occurring raw materials, for the most part, have been considered beyond doctrinal concern, largely because characterizing a merchantable raw material, such as copper or pigiron, as defective is conceptually difficult. Nevertheless, certain doctrines that developed for the application of products liability to other products have gained sporadic application to naturally occurring raw materials, including the sophisticated purchaser defense, the bulk supplier defense, and the ingredient supplier defense. Madden argues that …

Inadequate Product Warnings And Causation, Mark Geistfeld

University of Michigan Journal of Law Reform

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 …

Regulatory Standards And Products Liability: Striking The Right Balance Between The Two, Teresa Moran Schwartz

University of Michigan Journal of Law Reform

Common law courts have a long tradition of borrowing legislative and regulatory standards to define standards of care under the tort system. Treating such standards as setting minimum levels of care and safety under tort law, the courts uniformly have ruled that violations of standards constitute negligence per se, while compliance is merely evidence of negligence. Although critics of the tort system have urged legislatures and courts to adopt rules giving greater weight to regulatory compliance in products liability cases, the drafters of the Restatement (Third) of Torts: Products Liability have declined to do so. They have adopted instead an …

Warning Defect: Origins, Policies, And Directions, Robert E. Keeton

University of Michigan Journal of Law Reform

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 …

Design Defects Under The Proposed Section 2(B) Of The Restatement (Third) Of Torts: Products Liability- A Judge's View, William A. Dreier

University of Michigan Journal of Law Reform

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, …

Timmy Tumble V. Cascade Bicycle Co.: A Hypothetical Case Under The Restatement (Third) Standard For Design Defect, Hildy Bowbeer, Todd A. Cavanaugh, Larry S. Stewart

University of Michigan Journal of Law Reform

These briefs were written for a hypothetical design defect case. Bowbeer and Cavanaugh argue for, and Stewart argues against, the adoption of the Restatement (Third)'s reasonable alternative design standard and the rejection of the Restatement (Second)'s consumer expectations test in the hypothetical State of Hutchins. The authors discuss the relative merits of the two tests, as well as the status to be accorded to Restatement standards in general. To do so Bowbeer, Cavanaugh, and Stewart rely upon precedent from other jurisdictions, one hypothetical Hutchins case, and various policy arguments advanced in the deliberations about adopting the new Restatement. In …

Arriving At Reasonable Alternative Design: The Reporters' Travelogue, James A. Henderson Jr., Aaron D. Twerski

University of Michigan Journal of Law Reform

Substantial commentary and controversy have been generated by the requirement in the new Restatement (Third) of Torts: Products Liability that plaintiffs in most (but not all) cases involving claims of defective product design show that a reasonable alternative design was available and that failure to adopt the alternative rendered the defendant's design not reasonably safe. Henderson and Twerski explain the origins of that requirement in American products liability case law and show that it is not only the majority position but also comports with widely shared views regarding the proper objectives of our liability system. Although consumer expectations cannot serve …

Statutory Compliance And Tort Liability: Examining The Strongest Case, Michael D. Green

University of Michigan Journal of Law Reform

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 …

The Constitution, The White House, And The Military Hiv Ban: A New Threshold For Presidential Non-Defense Of Statutes, Chrysanthe Gussis

University of Michigan Journal of Law Reform

The President's constitutional duty to 'take Care that the Laws be faithfully executed" implies that the President is entrusted with the responsibility to defend those laws against court challenges. On occasion, however, Presidents faced with legislation that they deem unconstitutional have declined to defend that legislation against legal challenges. On February 10, 1996, President Clinton declined to defend a provision included in the National Defense Authorization Act for Fiscal Year 1996 that required discharge from the military of all HIV-positive servicemembers because he believed that the provision violated the Equal Protection Clause of the Fourteenth Amendment. This Note explores whether …

Constructing A Roof Before The Foundation Is Prepared: The Restatement (Third) Of Torts: Products Liability, Section 2(B) Design Defect, Frank J. Vandall

University of Michigan Journal of Law Reform

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 …

Risk-Utility Analysis In The Failure To Warn Context, Paul D. Rheingold, Susan B. Feinglass

University of Michigan Journal of Law Reform

Elsewhere in this Symposium issue, Professor Mark Geistfeld presents an argument favoring the application of risk-utility analysis to the duty to warn doctrine encompassed by the Restatement (Third) of Torts. In addition, the comments and the reporters' notes to the Restatement (Third) suggest altering the traditional duty to warn if the warning would cause "information overload," if the danger is "open and obvious," or if the danger applies to only a small percentage of potential customers.

In response to Geistfeld and the Restatement (Third) comments and notes, Rheingold and Feinglass assert that applying a risk-utility analysis or altering the …

Family Group Conferences As A Form Of Court Approved Alternative Dispute Resolution In Child Abuse And Neglect Cases, Jolene M. Lowry

University of Michigan Journal of Law Reform

The problems associated with long-term foster care of children have escalated over the past decade as more abused and neglected children enter the already overworked and underfunded state child protective system& The recent Personal Responsibility and Work Opportunity Reconciliation Act of 1996 mandates giving preference to placement within the extended family for children who cannot be returned to their parents. Compliance with this law requires substantial changes in the policies and procedures of human services agencies in most states. This Article discusses "family group conferencing,' a new model for working with families within the system. Family Group Conferencing originated in …

Speaking To Tribal Judges On The Matter Of Improving Children's Court Practice In Child Abuse And Neglect Cases In Our Country: A Proposal For A Uniform Children's Code, Julian D. Pinkham

University of Michigan Journal of Law Reform

Since the 1970 the responsibilities of the tribal children's courts have increased dramatically. In child welfare case tribal courts no longer simply determine whether a child has been abused or neglected. They now also oversee the placement of the child in a shelter, foster care, or a permanent home, as well as determine the parent's treatment or visitation rights The complexity of the cases causes unacceptable delays in placing Indian children in need of care and hinders the placement of Indian children within the tribal community.

Judge Pinkham introduces a proposed solution to the problems of current tribal child welfare …

Crafting An Advocate For A Child: In Support Of Legislation Redefining The Role Of The Guardian Ad Litem In Michigan Child Abuse And Neglect Cases, Albert E. Hartmann

University of Michigan Journal of Law Reform

Michigan's current statutory system leaves the role of the child's attorney unclear. In this Note, Hartmann advocates the adoption of a legislative proposal that will redefine the role of the child's attorney. The proposal specifies that the child's primary legal representative should be a guardian ad litem who will represent the best interests of the child. Hartmann begins by describing the current system and then analyzes how the proposal will modify the role of the child's attorney. Hartmann argues that the proposed changes would be highly beneficial and identifies specific points of improvement. Hartmann concludes by suggesting several reforms to …

"Supervisor" Hostile Environment Sexual Harassment Claims, Liability Insurance, And The Trend Towards Negligence, Amanda D. Smith

University of Michigan Journal of Law Reform

A lack of settled standards for determining liability in supervisor hostile environment sexual harassment lawsuits combined with similar uncertainty in the context of employer liability insurance coverage has resulted in increased litigation in this area. This Note argues that the current predominant standard in the employer liability context, which is based on negligence principle should be rejected in favor of an apparent authority standard, which more appropriately strikes a balance between encouraging employers to identify harassing behaviors and exonerating them from liability when they do so and take appropriate remedial action. It further argues that in order to develop effective …

We Know Better Than We Do: A Policy Framework For Child Welfare Reform, Donald N. Duquette, Sandra K. Danzinger, Joan M. Abbey, Kristin S. Seefeldt

University of Michigan Journal of Law Reform

The need for comprehensive reform of child welfare policies and systems has long been evident. This Article reports observations from the WK Kellogg Foundation-sponsored Families for Kids Initiative that seeks to expand services and support to families and reduce the time children spend in temporary care. The authors first provide an overview of the need for reforms such as those proposed by this initiative, suggesting that many child welfare studies, critiques, and proposed reforms have had similar objectives. The authors highlight lessons learned from how these reform goals are being developed, implemented, and practiced in ongoing programs across the nation …

Developing A Child Advocacy Law Clinic: A Law School Clinical Legal Education Opportunity, Donald N. Duquette

University of Michigan Journal of Law Reform

Clinical legal education has become an accepted and integral complement to traditional law school curricula. Professor Duquette argues that clinical education is uniquely able to integrate the teaching of practical skills and legal doctrine, elevating students' understanding of both. Duquette maintains that a child advocacy law clinic can teach a broad range of practical skill benefit the hosting law school by providing an opportunity for interdisciplinary education as well as a public relations benefit, while simultaneously serving an important need in most communities for quality representation of all parties in child abuse and neglect cases. Most importantly, participation in a …

Ru 486 Examined: Impact Of A New Technology On An 0 Id Controversy, Gwendolyn Prothro

University of Michigan Journal of Law Reform

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 …

Overcoming Collective Action Problems: Enforcement Of Worker Rights, Louise Sadowsky Brock

University of Michigan Journal of Law Reform

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 …

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

University of Michigan Journal of Law Reform

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 …

Facing The Facts: An Empirical Study Of The Fairness And Efficiency Of Foreclosures And A Proposal For Reform, Debra Pogrund Stark

University of Michigan Journal of Law Reform

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. …

Fda Approved? A Critique Of The Artificial Insemination Industry In The United States, Karen M. Ginsberg

University of Michigan Journal of Law Reform

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 …