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 …

Evaluating Purely Reproductive Disorders Under The Americans With Disabilities Act, Todd Lebowitz

Michigan Law Review

Approximately 2.8 million American couples suffer from infertility, a condition generally defined by the medical community as the failure to conceive after one year of unprotected intercourse. During the past thirty years, diagnostic and therapeutic techniques for treating infertility have improved drastically, enabling many previously infertile couples to bear children. These techniques, however, involve considerable expense and inconvenience, frequently requiring patients to take time off from work. Disputes with employers may follow, sometimes resulting in the infertile employee's termination. Some terminated employees, claiming that infertility constitutes a disability, then sue their former employers under the Americans with Disabilities Act of …

Of Flutes, Oboes And The As If World Of Evidence Law, Richard O. Lempert

Articles

Reading Allen's article, I am reminded of a cold war parable I heard during the 1960s. It concerned a flute and an oboe who joined an orchestra one year and immediately set to quarrelling. The flute was distressed because whenever it was playing at its lyrical best the oboe would enter. drowning it out. The oboe was affronted because its deepest, most sonorous passages were invariably ruined by the high-pitched flute butting in. When the orchestra split up for the summer and these quarrelsome instruments went their separate ways, the flute, as it angrily contemplated the oboe, found itself stretching …

Holmes' Failure, Louise Weinberg

Michigan Law Review

I have just set down the March 1997 Harvard Law Review, with its centennial celebration of Oliver Wendell Holmes' The Path of the Law. The Path of the Law is a grand thing, in my view Holmes' best thing. But just the same, I find myself surprised that on this occasion none of its celebrants raised what has always seemed to me a weakness of the piece, and of Holmes' much earlier book, The Common Law. This is a weakness that is at once a reflection and a forecast of the failure of its author. Writers today do seem to …

A Tempered "Yes" To The "Exculpatory No", Scott D. Pomfret

Michigan Law Review

What circumstances trigger a person's duty to tell the truth? Immanuel Kant claimed without qualification that all circumstances require truthtelling, even when speaking the truth injures the speaker. John Henry Cardinal Newman made exceptions for lies that achieved some positive end. Hugo Grotius permitted lies to adversaries. The philosophy of twentieth-century common sense largely permits white lies. Perhaps surprisingly, some courts have found that Kant's absolute prohibition of falsehood more accurately characterizes a speaker's duty to tell the truth to the federal government under 18 U.S.C. § 1001 than these other, more relaxed standards. According to this view, the prohibition …

A Question Of Intent: Aiding And Abetting Law And The Rule Of Accomplice Liability Under § 924©, Tyler B. Robinson

Michigan Law Review

Firearms are common tools of the violent-crime and drugtrafficking trades. Their prevalence is reflected in the frequency with which federal prosecutors charge, juries apply, and courts review 18 U.S.C. §924(c). That provision imposes heavy penalties for either the use or carrying of a firearm "during and in relation to any crime of violence or drug trafficking crime," in addition to the punishment provided for the underlying violent or drug-related offense. A conviction under section 924(c) carries at the very least a mandatory, consecutive five-year sentence, even when the underlying crime already provides enhanced punishment for use of a dangerous weapon …

Pomobabble: Postmodern Newspeak And Constitutional "Meaning" For The Uninitiated, Dennis W. Arrow

Michigan Law Review

A parody of postmodern writing.

Vol. 48, No. 5, November 19, 1997, University Of Michigan Law School

Res Gestae

•UPDATE: New Computers Actually En Route to Room 200 Computer Lab •Dean Lehman Speaks on Successful Fundraising Drive •Summer Job Survey of Last Year's 1Ls •Manning's Memories •Piranha Feeding Frenzy, et al. •Blank's Last Word •Legal Lad •Bringuel Goes Out with a Bang •Book, Movie and TV Reviews

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recently received by the Michigan Law Review.

Startegy And Force In The Liquidation Of Secured Debt, Ronald J. Mann

Michigan Law Review

The question of why parties use secured debt is one of the most fundamental questions in commercial finance. The commonplace answer focuses on force: A grant of collateral to a lender enhances the lender's ability to collect its debt by enhancing the lender's ability to take possession of the collateral by force and sell it to satisfy the debt. That perspective draws considerable support from the design of the major legal institutions that support secured debt: Article 9 of the Uniform Commercial Code and the less uniform state laws regarding real estate mortgages. Both of those institutions are designed solely …

The Path To Habeas Corpus Narrows: Interpreting 28 U.S.C. § 2254(D)(1), Sharad Sushil Khandelwal

Michigan Law Review

The enforcement of the U.S. Constitution within the criminal justice system is an odd subspecies of constitutional law. In areas other than criminal law, federal courts act as the ultimate guarantors of constitutional rights by providing remedies whenever violations occur. Criminal law, however, is different by necessity; the bulk of criminal justice occurs in state courthouses, leaving constitutional compliance largely to state judges. The U.S. Supreme Court, of course, may review these decisions if it chooses, but a writ of certiorari can be elusive, especially given the Court's shrinking docket. After World War II, however, this feature of criminal constitutional …

Equal Protection, Class Legislation, And Colorblindness, Melissa L. Saunders

Michigan Law Review

Scholars and judges have long assumed that the Equal Protection Clause is concerned only with state action that has the effect of singling out certain persons or groups of persons for special benefits or burdens. Under the traditional doctrinal framework, state action that has this purpose and effect bears a certain burden of justification under the clause, a burden whose stringency varies, depending on the criteria used to define the class being singled out for special treatment and the importance of the interest affected. But state action that lacks such a "discriminatory effect" is not, on the traditional understanding, subject …

The Origin, Development, And Regulation Of Norms, Richard H. Mcadams

Michigan Law Review

For decades, sociologists have employed the concept of social norms to explain how society shapes individual behavior. In recent years, economists and rational choice theorists in philosophy and political science have started to use individual behavior to explain the origin and function of norms. For many in this group, the focus of study is the interaction of law and norms, of formal and informal rules. Exemplified by Robert Ellickson's Order Without Law, this literature uses norms to develop more robust explanations of behavior and to predict more accurately the effect of legal rules. Norms turn out to matter in legal …

Vol. 48, No. 4, October 28, 1997, University Of Michigan Law School

Res Gestae

•Revealing the Future of Life in Commercial Law •New Student Group Seeks to Spur Discussion of Women's Perspectives •A Glimpse into the High-Rent Cul-de-Sac of Larry's World •Rachel Preiser Continues her Culinary Tour of A2 •Bruce Manning Parties Hearty with Twisted Sister •Hit the Silver Screen •Law School Grade Curve! •B&B Offer 15 Ways to Leave Your Law School Lover

Vol. 48, No. 3, October 3, 1997, University Of Michigan Law School

Res Gestae

•Tech Wars •The FBI v. the 1st Amendment •Larry Kills His Parakeet •Vending Machine Alternatives •Eric Fuller Gets a Warm Fuzzy and Free Pitcher •Go See a Flick •Blanks Fails to Turn in His Article •B&B Eavesdrop in Room 200

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 …