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ARTICLES
Pink, White, and Blue
CLASS ASSUMPTIONS IN THE JUDICIAL
INTERPRETATIONS OF TITLE VII HOSTILE
ENVIRONMENT SEX HARASSMENT
*
Rebecca K. Lee†
I. INTRODUCTION ..................................................................... 678
II. THE SUPREME COURT’S TITLE VII JURISPRUDENCE
ON HOSTILE ENVIRONMENT SEX HARASSMENT .................680
III. IMPACT OF SEX HARASSMENT LAW ON THE WORKPLACE .. 688
A. Faragher and Ellerth: Impact on Employers.............. 688
B. Federal Government Survey: Impact on Employees ... 691
IV. THE CLASS DEBATE: BLUE-COLLAR V. WHITE-COLLAR? ... 693
A. Special Treatment of Class Context............................. 694
B. Non-Special Treatment of Class Context..................... 696
V. DEBUNKING THE ASSUMPTIONS .......................................... 699
A. Judicial Depictions of Blue-Collar Norms .................. 699
B. Vulgarity Along the Workplace Spectrum ................... 701
C. Sex Harassment and the Cultural Defense Argument .. ….704
VI. REFRAMING THE DISCUSSION: MASCULINE, NOT
CLASS, WORKPLACE NORMS.............................................. 709
A. Sex Harassment As Male Normative Behavior ........... 710
B. Question of Essentialism.............................................. 715
C. Progress (to be made) in the Workplace....................... 716
D. Assumption of Risk Defense......................................... 718
VII. CONCLUSION ..................................................................... 724
*
© Rebecca K. Lee 2005. All Rights Reserved.
Associate, Crowell & Moring LLP, Washington, D.C. J.D., Georgetown
University Law Center, 2004; M.P.P., John F. Kennedy School of Government, Harvard
University, 2001; A.B., University of Chicago, 1997. I would like to extend my deep
thanks to Vicki Jackson, Elizabeth Patterson, Diane Rosenfeld, Robin West, and
Wendy Williams for their insights, encouragement, and inspiration.
†
677
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I.
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INTRODUCTION
It must never be forgotten that Title VII is the federal court mainstay in the struggle for equal employment opportunity for the female
workers of America. But it is quite different to claim that Title VII
was designed to bring about a magical transformation in the social
mores of American workers.1
Hostile environment sex harassment2 jurisprudence has
gone astray. Rather than make good on Title VII’s3 promise to
dismantle the legacy of sex discrimination in the workplace,
some courts, such as the Tenth Circuit quoted above, have
decided that sex harassment law simply cannot be expected to
affect the way in which men and women interact at work. This
passive view of Title VII has manifested itself in court rulings
that suggest that harassment law cannot pierce the cultural
exterior of the blue-collar workplace, where crude and offensive
behavior is allowed to reign.4 Factoring in the class culture of
the workplace—that is, the blue- or white-collar culture of the
workplace—when assessing hostile work environment claims
has essentially established a different standard for what
constitutes harassment of blue-collar women, forcing them to
prove harassing behavior above and beyond what is “normal”
for the blue-collar work setting. Courts that reject this trend
recognize that considering workplace culture in this way
creates unequal tiers of protection from sex harassment under
Title VII,5 making it more difficult for women in blue-collar
fields to seek legal redress for a hostile work environment.
Accordingly, these courts have declined to take into account
class culture in order to provide uniform protection for all
working women. The result has been a bifurcation of court
1
Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1538 (10th Cir. 1995) (citing
Rabidue v. Osceola Ref. Co., 584 F. Supp. 419, 430 (E.D. Mich. 1984), aff’d, 805 F.2d
611 (6th Cir. 1986)).
2
I use the term “sex harassment” instead of “sexual harassment”
throughout this article to emphasize that harassment is a form of sex discrimination
under the law, whether or not it is rooted in sexual want. See Oncale v. Sundowner
Offshore Serv., Inc., 523 U.S. 75, 78-80 (1998) (referring to Title VII’s proscription of
discrimination “because of . . . sex” and holding that harassment “need not be
motivated by sexual desire”). See also discussion infra Part VI.
3
Title VII of the Civil Rights Act of 1964 prohibits an employer from
discriminating against “any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (2000). This federal statute
proscribes workplace sex harassment as a form of sex discrimination in employment.
4
See discussion infra Part IV.A.
5
See discussion infra Part IV.B.
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rulings that leaves women working in the blue-collar trades
vulnerable to a particular court’s take on the role of workplace
culture.
The recent judicial trend recognizing a blue-collar
setting as different from a white-collar setting is disturbing
because focusing on class differences within the work
environment misunderstands and obscures the true purpose of
sex harassment law under Title VII: to make the work
environment more accommodating for women by removing the
discrimination and harassment that have long disadvantaged
them as workers. The vestiges of sex discrimination and gender
animus in the workplace6 are culturally-based,7 not class-based,
and thus must be countered with a cultural re-understanding
of appropriate workplace behavior. Contrary to the Tenth
Circuit’s inert view of Title VII, sex harassment law has had an
impact in the workplace. It is not magic. But it is law, the effect
of which has led to increased awareness on the part of
employees, clearer company policies, and the development of
on-site training.8
The current debate over blue-collar versus white-collar
culture diverts attention away from the central goal of sex
harassment law and proceeds along a deleterious detour. One
only need observe the crude and “rough hewn” behavior that
permeates both types of workplaces to see that no real
difference exists between blue-collar and white-collar
environments with respect to sex harassment.9 Vulgar actions10
pervade both the shop-room and the boardroom because the
public world of work, whether blue- or white-collar, has long
been a male-dominated realm shaped by masculine norms.11
Although the migration of women into the workforce has
changed the sex balance to varying degrees in different fields,
women still confront hostile attitudes at work. The problem of
sex harassment speaks to unwelcome male reactions to women
6
See generally CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF
WORKING WOMEN: A CASE OF SEX DISCRIMINATION (1979).
7
See discussion infra Part VI.
8
See discussion infra Part III.
9
See discussion infra Part V.B.
10
I use the terms “vulgar” and “crude” behavior to refer to hostile conduct in
the workplace that is discriminatory on the basis of gender—behavior that falls under
actionable sex harassment under Title VII. These terms are not intended to encompass
nondiscriminatory language.
11
See discussion infra Part VI.
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entering the work environment, and not just a type of work
environment.12
This article suggests that cultural patterns of gender
rather than class have defined the work environment,
overriding any supposed class distinctions with respect to sex
harassment. Title VII, to be effective, must oppose and help
reshape the gendered culture of the workplace rather than
excuse it under a false cloak of class normative justification.
This article traces the Supreme Court’s Title VII jurisprudence
on hostile environment sex harassment in Part II, and follows
with a discussion of the impact of harassment law on the
workplace in Part III. Part IV delves into the current
controversy between blue-collar and white-collar culture, while
Part V discredits the behavioral assumptions associated with
class. Finally, Part VI reframes the dialogue by reconnecting
the phenomenon of sex harassment to masculine behavioral
norms in the work setting. When examining sex harassment
hostile environment claims, courts need to remain faithful to
what sex harassment law aims to address and ameliorate: the
problem of sex discrimination in the form of gendered and
sexualized workplace culture. Eliminating the false divide
between blue-collar and white-collar environments will
advance a more productive understanding of sex harassment
law and better address the traditional barriers to working
women.
II.
THE SUPREME COURT’S TITLE VII JURISPRUDENCE ON
HOSTILE ENVIRONMENT SEX HARASSMENT
Sex harassment was first judicially recognized as
impermissible sex discrimination within the meaning of Title
VII in 1986, when the Supreme Court decided Meritor Savings
12
While this article focuses on sex harassment in the workplace, I want to
note that sex harassment is a common problem that occurs in other environments as
well, including on the street, at school, and through the Internet. See generally Anita L.
Allen, Gender and Privacy in Cyberspace, 52 STAN. L. REV. 1175 (2000) (stating that
sex harassment and other behavior that reduce women’s privacy also permeate
cyberspace); Cynthia Grant Bowman, Street Harassment and the Informal
Ghettoization of Women, 106 HARV. L. REV. 517 (1993) (arguing that street harassment
significantly restricts women’s freedom and confines them to the home); Rebecca K.
Lee, Romantic and Electronic Stalking in a College Context, 4 WM. & MARY J. WOMEN
& L. 373 (1998) (describing how women are stalked and harassed via e-mail and other
on-line forums); Pamela Y. Price, Eradicating Sexual Harassment in Education, in
DIRECTIONS IN SEXUAL HARASSMENT LAW 60 (Catharine A. MacKinnon & Reva B.
Siegel eds., 2004) (discussing the ineffectiveness of Title IX in addressing the
continuing problem of sex harassment in educational settings).
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Bank v. Vinson.13 In Meritor, the plaintiff Mechelle Vinson
alleged that her male superior, a vice president at the bank
where she worked, propositioned her for a sexual relationship.14
Although Vinson first objected, she eventually relented because
she thought that she would be fired if she did not.15 From this
point on, and continuing over the course of several years,
Vinson testified that her supervisor repeatedly subjected her to
sexual advances at the bank, describing how he “fondled her in
front of other employees, followed her into the women’s
restroom when she went there alone, exposed himself to her,
and even forcibly raped her on several occasions.”16 After four
years at the bank, Vinson left on an indefinite sick leave and
was then fired for her extended absence.17 Vinson sued the
supervisor and the bank for sex harassment under Title VII,
but the federal district court rejected her claim, failing even to
settle the contradictory testimony regarding whether Vinson
and the supervisor had engaged in sexual relations.18 Instead,
the district court found that even if a sexual relationship did
exist, it was voluntary and did not implicate Vinson’s
employment.19 The appellate court reversed, finding that the
district court had not considered whether Vinson’s allegation
constituted a hostile work environment, which would be
actionable under Title VII.20
The Supreme Court held in Meritor that sex harassment
is a form of sex discrimination in violation of Title VII,
actionable in either its quid pro quo or hostile environment
form.21 An employer is liable for quid pro quo harassment when
sexual relations are implicitly or explicitly tied to economic or
employment consequences.22 Hostile environment harassment
involves workplace conduct that unreasonably interferes with
an individual’s work performance or renders the work
13
477 U.S. 57 (1986).
Id. at 59-60.
15
Id.
16
Id. at 60.
17
Id.
18
Meritor Sav. Bank, 477 U.S. at 60-61. Vinson’s supervisor denied all
allegations of sexual relations, arguing that she had brought her claim as a result of a
business dispute. Id. at 61.
19
Id. at 61.
20
Id. at 62.
21
Id. at 65 (citing 29 C.F.R. § 1604.11(a)(3) (1985)). While the Court
remanded the case on the issue of hostile environment sex harassment, the Court
declined to announce a rule with respect to employer liability. Id. at 72-73.
22
Id. at 64-65.
14
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environment intimidating, hostile, or offensive.23 In discussing
the applicability of the hostile environment theory to sex
harassment, the Court looked to lower court case law involving
racial and ethnic discrimination. The Court highlighted Rogers
v. EEOC,24 a Fifth Circuit case holding an employer liable
under Title VII for creating a hostile environment for a
minority employee by discriminating against its also minority
clientele, even though the complainant did not sustain
economic injury.25 Following Rogers, the Supreme Court
observed that other courts applied the hostile environment
theory to cases involving harassment based on race,26 religion,27
and national origin.28 The Supreme Court agreed that Title VII
also could be used to proscribe hostile environment harassment
based on sex,29 in accordance with the Equal Employment
Opportunity Commission’s [EEOC] promulgated Guidelines on
sex harassment.30 The comparison to race harassment is a
logical one, and the Court highlighted this analogy, quoting the
Eleventh Circuit’s opinion in Henson v. City of Dundee: “Sexual
harassment which creates a hostile or offensive environment
for members of one sex is every bit the arbitrary barrier to
sexual equality at the workplace that racial harassment is to
racial equality.”31 The parallel between sex and race
harassment under the law does not mean, however, that they
do not intersect in real life; sex harassment of minority women
23
Meritor Sav. Bank, 477 U.S. at 64-65.
454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972)
25
Id. at 65-66.
26
See, e.g., Firefighters Inst. for Racial Equal. v. City of St. Louis, 549 F.2d
506, 514-15 (8th Cir. 1977) (cited in Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66
(1986)); Gray v. Greyhound Lines, East, 545 F.2d 169, 176 (D.C. Cir. 1976) (cited in
Meritor, 477 U.S. at 66).
27
See, e.g., Compston v. Borden, Inc., 424 F. Supp. 157 (S.D. Ohio 1976)
(cited in Meritor, 477 U.S. at 66).
28
See, e.g., Cariddi v. Kan. City Chiefs Football Club, 568 F.2d 87, 88 (8th
Cir. 1977) (cited in Meritor, 477 U.S. at 66).
29
Meritor, 477 U.S. at 66.
30
The Guidelines provide in pertinent part:
Unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature constitute sexual harassment when (1)
submission to such conduct is made either explicitly or implicitly a term or
condition of an individual’s employment, (2) submission to or rejection of such
conduct by an individual is used as the basis for employment decisions
affecting such individual, or (3) such conduct has the purpose or effect of
unreasonably interfering with an individual’s work performance or creating
an intimidating, hostile, or offensive working environment.
EEOC Guidelines on Discrimination Because of Sex, 29 C.F.R. § 1604.11(a) (2003).
31
Meritor, 477 U.S. at 67 (quoting Henson v. City of Dundee, 682 F.2d 897,
902 (11th Cir. 1982)).
24
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is often tinted with race harassment, implicating and harming
their multi-faceted identities as women and as women of color.32
The Supreme Court in Meritor found that hostile
environment harassment based on sex does indeed fall within
Title VII’s purview, and added that to be actionable, the
harassment must be “sufficiently severe or pervasive ‘to alter
the conditions of employment and create an abusive working
environment.’”33 Class was not germane to evaluating this
hostile environment claim. The Court neither remarked upon
the class norms of Vinson’s workplace nor referred to the
white-collar setting of the bank in determining that the
harassment was severe and pervasive. Even assuming,
arguendo, that the Court had noticed the white-collar nature of
Vinson’s work environment, such an observation would have
only helped to demonstrate that crudity does not stop short of
the professional office: certainly no one would claim that the
conduct in this case (i.e., fondling, exposing, forcibly raping)
was anything less than an example of extreme and violent
vulgarity, and the harasser nobody less than a white-collar
executive.
In Harris v. Forklift Systems, Inc.,34 the Supreme Court
further articulated the standards by which to assess the
admittedly difficult hostile environment harassment suit. The
facts in Harris show that Charles Hardy, the president of an
equipment rental company, subjected a female manager to a
slew of sexist and sexually-oriented comments.35 According to
Harris’ testimony, Hardy repeatedly hurled insults at her, for
example saying “‘[y]ou’re a woman, what do you know,’”36
calling her “‘a dumb ass woman,’”37 and publicly suggesting that
he and Harris “‘go to the Holiday Inn to negotiate [her] raise.’”38
When Hardy failed to change his behavior after Harris
complained, she quit the company and filed a hostile
environment sex harassment charge.39
The Supreme Court upheld Harris’ claim, ruling that
harassment creates a cause of action if it satisfies both an
objective and subjective standard: (1) the conduct must be
32
33
34
35
36
37
38
39
See discussion infra Part V.C.
477 U.S. at 67 (quoting Henson, 682 F.2d at 904).
510 U.S. 17 (1993).
Id. at 19.
Id.
Id.
Id.
Harris, 510 U.S. at 19.
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“severe or pervasive enough to create an objectively hostile or
abusive work environment—an environment that a reasonable
person would find hostile or abusive;”40 and (2) the complainant
must “subjectively perceive the environment to be abusive.”41
The Court additionally held that psychological injury to the
employee is relevant but not necessary to show that the
environment was abusive to the complainant. 42 Instead of
stating dispositive factors, the Court recommended applying a
totality of the circumstances analysis that “may include the
frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee’s work performance.”43
Again, as in Meritor, the Court did not comment upon
the class context of Harris’ work setting, nor did the Court
include it as a factor in the totality analysis it set forth. While
it is true that the list of factors was not meant to be exhaustive,
one would expect the Court to have included the class context
of the work environment if it were an especially relevant factor.
It is not even clear how the “class factor” would be construed in
Harris, because while the industry setting was blue-collar, the
accused harasser was the white-collar president of the
company. Does the industry setting where the harassment
takes place determine the class characterization of the
workplace, or is this established by the specific status of the
harasser? What if the president or upper-level manager rose to
his position from the shop-floor?44 Does it matter? The answer is
no. Sex harassment, by definition, is discrimination based on
sex, not class. Thus, class context is not relevant to a finding of
sex harassment. “As the [EEOC] emphasized,” Justice
Ginsburg observed in her concurring opinion in Harris, “the
adjudicator’s inquiry should center, dominantly, on whether
the discriminatory conduct has unreasonably interfered with
the plaintiff’s work performance.”45 Accordingly, the analysis of
40
Id. at 21.
Id. at 21-22.
42
Id. at 23.
43
Id.
44
See SUSAN FALUDI, STIFFED: THE BETRAYAL OF THE AMERICAN MAN 66
(1999) (stating that in at least one naval shipyard that the author had visited, “[t]he
white-collar administrators had largely risen from the blue-collar shops”).
45
Harris, 510 U.S. at 25 (Ginsburg, J., concurring, and adding that
harassment which alters the working conditions “as to ‘ma[k]e it more difficult to do
the job’” would sufficiently establish that the harassment has “unreasonably interfered
with the plaintiff’s work performance,” citing Davis v. Monsanto Chem. Co., 858 F.2d
41
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a hostile environment claim should focus on whether the
plaintiff found it harder to perform the job in the face of hostile
interference, regardless of the class association of the plaintiff’s
work environment.
In Oncale v. Sundowner Offshore Services, Inc.,46 the
most recent sex harassment case to clarify the type of behavior
that constitutes a hostile environment, the Supreme Court held
that hostile environment harassment not motivated by sexual
desire can still violate Title VII if the harassment is because of
sex. Plaintiff Joseph Oncale worked as a roustabout on an oil
rig where other male crew members publicly forced him to
endure sexually humiliating activity, including physical and
sexual assaults.47 He received no help and little sympathy after
complaining to supervisory personnel, and simply was told that
his situation was not unique since the same crew members had
also harassed other employees in the company.48 Oncale soon
resigned because he feared that he would be raped by his
harassers if he remained.49 The Supreme Court found that
same-sex harassment is harassment based on sex,50 as required
under Title VII, and that sex harassment need not be
erotically-motivated but can be the product of gender animus.51
Taking the Court’s position a step further, it follows that
gender hostility in turn is largely culturally-derived from
masculine norms dictating who (in terms of gender identity)
and what (in terms of conduct) are acceptable in a particular
345, 349 (6th Cir. 1988)).
46
523 U.S. 75 (1998).
47
Id. at 77.
48
Id.
49
Id. According to Oncale’s allegations,
[T]he harassment included [Danny] Pippen and [Brandon] Johnson
restraining him while [John] Lyons placed his penis on Oncale’s neck, on one
occasion, and on Oncale’s arm, on another occasion; threats of homosexual
rape by Lyons and Pippen; and the use of force by Lyons to push a bar of soap
into Oncale’s anus while Pippen restrained Oncale as he was showering on
Sundowner premises.
Oncale v. Sundowner Offshore Serv., Inc., 83 F.3d 118, 118-19 (5th Cir. 1996), rev’d,
523 U.S. 75 (1998).
50
Oncale, 523 U.S. at 80-81.
51
Id. at 80. As the Court put it:
But harassing conduct need not be motivated by sexual desire to support an
inference of discrimination on the basis of sex. A trier of fact might
reasonably find such discrimination, for example, if a female victim is
harassed in such sex-specific and derogatory terms by another woman as to
make it clear that the harasser is motivated by general hostility to the
presence of women in the workplace.
Id.
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work environment.52 In this vein, the threatening and abusive
actions committed against Oncale were disturbing attempts to
emasculate him within the highly-masculinized environment of
the oil rig. By standing for the proposition that a man could be
subjected to sex harassment by fellow male co-workers absent
any sexual motivation, Oncale serves to undercut the primacy
of (heterosexual) masculine norms in the workplace and
arguably establishes gay rights in the area of sex harassment
law.53
In trying to elucidate the objective and subjective
standard when determining the severity of the harassment,54
the Court stated in dicta that workplace behavior should be
viewed in light of the “surrounding circumstances,
expectations, and relationships”55 and that courts should be
sensitive to the “social context” in which the alleged behavior
takes place.56 Justice Scalia, who wrote the majority opinion for
the Court in Oncale, offered a comparison between the
environment of a professional football player and that of the
coach’s secretary:
A professional football player’s working environment is not severely
or pervasively abusive, for example, if the coach smacks him on the
buttocks as he heads onto the field—even if the same behavior would
reasonably be experienced as abusive by the coach’s secretary (male
or female) back at the office . . . . Common sense, and an appropriate
sensitivity to social context, will enable courts and juries to
distinguish between simple teasing or roughhousing among
members of the same sex, and conduct which a reasonable person in
the plaintiff’s position would find severely hostile or abusive.57
Rather than move sex harassment law forward,
however, Oncale’s language likely has confused it. After
Oncale, courts will apply their own sense of how “social
context” should be understood, and many may continue to
follow in the backward footsteps of the Tenth Circuit quoted
52
See discussion infra Part VI.A.
See Marc Spindelman, Discriminating Pleasures, in DIRECTIONS IN SEXUAL
HARASSMENT LAW 201 (Catharine A. MacKinnon & Reva B. Siegel eds., 2004) (stating
that “Oncale is an important step forward for sex equality rights, including the rights
of lesbians and gay men,” in opposition to Janet Halley’s queer theory critique that
Oncale allows Title VII to become a dangerous tool for sexuality regulation, including
homophobic regulation (citing Janet Halley, Sexuality Harassment, in DIRECTIONS IN
SEXUAL HARASSMENT LAW 183 (Catharine A. MacKinnon & Reva B. Siegel eds.,
2004))).
54
Oncale, 523 U.S. at 81.
55
Id. at 82.
56
Id. at 81.
57
Id. at 81-82.
53
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earlier.58 Some courts have already seized upon Oncale’s vague
“common sense” directive to argue that workplace culture is
part of the social context and should be taken into account
when evaluating harassment claims.59 Although the Supreme
Court has never specifically mentioned class, lower courts both
before and after Oncale have defined workplace culture in
terms of class—that is, according to its blue- or white-collar
context.60 But it does not appear that Oncale’s text supports this
understanding, especially given Justice Scalia’s own preference
for close textual readings. The comparison that the Court made
between the professional football player on the field and the
secretary back at the office is not a comparison between a bluecollar and white-collar workplace. Moreover, it focuses on a
male-centered professional sport that is hardly representative
of most work environments. To be fair, perhaps the Court
presented the football example because both the professional
football player and the roustabout on the oil rig work in
predominately, if not exclusively, male environments. Even so,
the Court did not link the analogy to a discussion of Oncale’s
particular situation, and in any event the illustration still fails
to make a class distinction. Arguably, if the Supreme Court
had wanted class context to be specifically considered in the
totality of the circumstances test, the Court could have either
included class or used the phrase “economic context” instead of
“social context” in its decision.
Oncale would have provided a good opportunity for the
Supreme Court to set forth differing standards of vulgarity
depending on the blue- or white-collar work context, since
Oncale itself is set within the blue-collar setting of the oil
platform. Yet the Court opinion did not at all discuss the
“natural” crudeness of Oncale’s work environment or hold his
harassers’ actions to a different standard of coarseness. That
the Court did not use the facts and setting of Oncale to
illustrate any supposed class difference in harassing behavior
is telling. Rather, Oncale is important because the Court
recognized that same-sex harassment could be sex harassment,
irrespective of the class context. In sum, the Supreme Court in
its jurisprudence on sex harassment has focused only on the
discriminatory dynamics of the workplace based on sex and
58
Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1538 (10th Cir. 1995).
See, e.g., Pirolli v. World Flavors, Inc., No. 98-3596, 1999 WL 1065214, at
*5 (E.D. Pa. Nov. 23, 1999); Smith v. Sheahan, 189 F.3d 529, 534-35 (7th Cir. 1999).
60
See case discussion infra Part IV.
59
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gender, and not on class.61 The Circuit courts that have
diverged from this gender-based analysis have neglected to
consider the entire context of these Supreme Court cases, and
have interjected their own class assumptions in the
adjudication of hostile environment harassment claims, in this
way failing to uphold the fundamental goal of Title VII.
III.
IMPACT OF SEX HARASSMENT LAW ON THE WORKPLACE
When the Tenth Circuit echoed the district court
sentiment that one could hardly “claim that Title VII was
designed to bring about a magical transformation in the social
mores of American workers,”62 it was correct only in the sense
that the change was not meant to be “magical” but part of the
normal course of business for employers. For women to have
access to equal opportunity in employment, employers
necessarily need to play an active role in addressing the
obstacles that have kept women out of certain job sectors for
too long. Promoting awareness of sex harassment through
harassment law has helped create a different understanding of
expectations in the workplace, affecting both employers and
employees alike.
A.
Faragher and Ellerth: Impact on Employers
After Oncale, the Supreme Court revisited the issue of
sex harassment, this time concerning the issue of employer
liability. In Faragher v. City of Boca Raton,63 the Court held
61
While the United States was one of the first nations to render sex
harassment illegal as a form of sex discrimination and has made the most progress in
this area of the law, other countries around the world have also begun to take steps to
address sex harassment. For instance, the European Community in 1991 passed a
Code of Conduct (although not binding) with the goal of preventing sex harassment.
Notably, this Code also does not include the class culture of the workplace in defining
what constitutes a hostile work environment based on sex. Rather, the Code states in
relevant part that “[t]he essential characteristic of sexual harassment is that it is
unwanted by the recipient, that it is for each individual to determine what behavior is
acceptable to them and what they regard as offensive.” Commission Recommendation
of 27 November 1991 on the Protection of the Dignity of Women and Men at Work
92/131/EEC, 1992 O.J. (L 49) 1, available at http://europa.eu.int/smartapi/cgi/
sga_doc?smatapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=31992h0131&model=
guichett (last visited Jan. 19, 2005). See also, e.g., Beverley H. Earle & Gerald A.
Madek, An International Perspective on Sexual Harassment Law, 12 LAW & INEQ. 43,
69-88 (1993).
62
Gross, 53 F.3d at 1538 (citing Rabidue v. Osceola Ref. Co., 584 F. Supp.
419, 430 (E.D. Mich. 1984), aff’d, 805 F.2d 611 (6th Cir. 1986)).
63
524 U.S. 775 (1998).
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that an employer is vicariously liable for a supervisor’s
harassment of a lower-level employee unless the employer can
demonstrate that it “exercised reasonable care to prevent and
correct promptly any sexually harassing behavior, and . . . that
the plaintiff employee unreasonably failed to take advantage of
any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise.”64 The Court expanded on
this holding in Burlington Industries, Inc. v. Ellerth,65 ruling
that the difference between quid pro quo and hostile
environment harassment does not control the issue of employer
liability and that employers can be liable for either type of
conduct, regardless of whether they were aware of the
harassment.66
The clarified standards for employer liability plainly
indicate that employers have an affirmative duty to institute
policies and procedures addressing and preventing sex
harassment at the workplace, control mechanisms that in turn
are precisely intended to shape employee behavior. Companies,
as a result, are directly tackling the problem, many of them
establishing more specific policies and educating employees
about sex harassment, with some even implementing a code of
ethics in the workplace.67 Employers should be taking notice;
the number of sex harassment charges filed with the EEOC
leapt from 10,532 in 1992 to 15,549 in 1995, and remained
relatively constant through 2001, dipping somewhat in 2002
64
Id. at 807.
524 U.S. 742 (1998).
66
Id. at 754. The Court subsequently has ruled on a few additional sex
harassment cases not dealing directly with work culture issues: Gebser v. Lago Vista
Indep. Sch. Dist., 524 U.S. 274, 292-93 (1998) (holding that in order for a school to be
liable for teacher-student harassment, a school official with the authority to take
corrective measures must have actual knowledge of, or act deliberately indifferent to,
the offensive conduct); Davis ex. rel. LaShonda D. v. Monroe County Bd. of Educ., 526
U.S. 629, 633 (1999) (applying the same strict standard specified in Gebser to studenton-student sex harassment by holding that a school board is potentially liable only
where it had actual notice and showed deliberate indifference); Clark County Sch. Dist.
v. Breeden, 532 U.S. 268, 271-72 (2001) (holding that an isolated incident, unless
extremely serious, does not amount to sex harassment and that a right-to-sue letter
issued by the EEOC to employee three months before supervisor announced possibly
transferring employee was insufficient to show causality between employee’s protected
activity and the adverse employment action); Pa. State Police v. Suders, 124 S. Ct.
2342, 2346-47 (2004) (establishing that to make a constructive discharge claim due to
hostile work environment sex harassment, the plaintiff must show that resignation
was an appropriate response to unbearable conditions, to which the employer may then
raise the Ellerth/Faragher affirmative defense, provided that the employer did not
engage in adverse employment actions).
67
Heather Pauly, Sex and the Workplace, CHICAGO SUN-TIMES, Aug. 26,
1998, at 6.
65
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and 2003.68 Awards paid in settlements with the EEOC likewise
jumped from $12.7 million in 1992 to $50.3 million in 1999 and
remained in the $50 million range through 2003,
demonstrating the costly consequences of these suits.69
As the Court explained in Faragher, “[Title VII’s]
‘primary objective,’ like that of any statute meant to influence
primary conduct, is not to provide redress but to avoid harm.”70
Avoiding a harm that is as common as workplace sex
harassment can only be achieved by revising our notions of
what is appropriate behavior in the workplace and no longer
tolerating previously condoned harassing conduct. Under the
recently articulated legal standards for employer liability,
employers are directed to proactively influence and monitor the
way the sexes interact in the workplace. And after Congress
amended Title VII in 1991 to allow sex harassment victims to
sue for damages, including punitive damages,71 employers have
a strong incentive to do so. No magic required.
Moreover, the Supreme Court appears to agree that
Title VII was intended, at least in some measure, to modify our
notion of what is acceptable in the workplace when it comes to
harassment. The respondents in Oncale argued that
“recognizing liability for same-sex harassment will transform
Title VII into a general civility code for the American
workplace,”72 but the Supreme Court rejected this argument,
remarking that “[this] risk is no greater for same-sex than for
opposite-sex harassment, and is adequately met by careful
attention to the requirements of the statute.”73 If we assume
that discrimination is a form of social behavior, then antidiscrimination law must address social practices in the
workplace that have discriminating effects. To this end, the
Tenth Circuit’s concern about preventing a “cultural
68
U.S. EEOC, Sexual Harassment Charges EEOC & FEPAs Combined: FY
1992 – FY 2003, at http://www.eeoc.gov/stats/harass.html (last visited Jan. 19, 2005).
14,396 charges and 13,566 charges were filed in 2002 and 2003, respectively. Id.
69
Id. This amount does not include monetary damages paid through
litigation. Id.
70
524 U.S. at 806 (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 417
(1975)).
71
Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (codified at 42
U.S.C. § 1981 (2000)). This amendment allows harassment plaintiffs to obtain from
$50,000 up to $300,000 in total damages. 42 U.S.C. § 1981(b)(3) (2000).
72
Oncale v. Sundowner Offshore Serv., 523 U.S. 75, 80 (1998).
73
Id. (referring to Title VII’s requirement that the discrimination be on the
basis of sex; that is, ‘“whether members of one sex are exposed to disadvantageous
terms or conditions of employment to which members of the other sex are not
exposed’”).
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transformation” under Title VII misses the point of harassment
law, and indeed, undermines it.
B.
Federal Government Survey: Impact on Employees
Since enacting Title VII in 1964, Congress has shown
concern about the problem of sex harassment within the
federal government and in the late 1970s requested that the
U.S. Merit System Protection Board74 conduct a study on the
incidence and impact of sex harassment in federal worksites.75
The Merit System Protection Board (“Board”) conducted its
first study in 1980 and two follow-up studies in 1987 and
1994.76 In the Introduction to the 1994 report, the Board stated:
In confronting the issue of sexual harassment, the Federal
Government is interested not only in avoiding situations in which a
court would find a violation of law, but also in preventing the creation
of an unpleasant, unproductive work atmosphere. The sexually
harassing behaviors reported by survey respondents and discussed
in this report—whether or not they are cause for legal action—can
most definitely create an unproductive working environment and
thus are an appropriate focus of our attention.77
According to the report, the government is interested in
going beyond curbing illegal conduct to also address any
offensive conduct that can reduce the productivity and
happiness of employees. Such an expansive perspective is
directly contrary to the Tenth Circuit’s pronouncement; rather,
such an approach is exactly concerned with affecting the
general tenor of the workplace by increasing awareness and
shaping attitudes regarding sex harassment.
Attitudes certainly have been changing over time, as
both men and women in the federal government are converging
in their views of what falls under harassing behavior.78
Through a survey of federal employees conducted in 1980,
1987, and 1994, the Board found that both men and women
considered a broader spectrum of behavior to constitute sex
harassment, whether initiated by a coworker or supervisor and
74
The U.S. Merit System Protection Board is an independent agency
responsible for examining the U.S. civil service system.
75
See U.S. MERIT SYS. PROT. BD., SEXUAL HARASSMENT IN THE FEDERAL
WORKPLACE: TRENDS, PROGRESS, CONTINUING CHALLENGES, 1 (Oct. 1995), available at
www.mspb.gov/studies/sexhar.pdf (last visited Jan. 19, 2005) [hereinafter SEXUAL
HARASSMENT IN THE FEDERAL WORKPLACE].
76
Id.
77
Id. at 3 (emphasis added).
78
Id. at 5.
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ranging from “pressure for sexual favors” to “sexual teasing,
jokes, [and] remarks.”79 The survey also showed that federal
employees were reflecting critically on how their behavior may
be perceived by others at the workplace and were altering their
conduct as a result, an outcome that the Board views as a
positive step in sex harassment awareness.80 Importantly,
despite critics’ concerns that the increased attention to sex
harassment will stifle human relationships in the workplace,81
the survey found that only a small minority of men and women
believed that a “fear of being accused of [sex] harassment” had
rendered their work environments less than comfortable.82
This adjustment in public attitudes, at least among
federal employees, is not surprising if we consider that sex
harassment law has helped influence the way that certain
workplace behavior is perceived.83 Just as progressive civil
rights legislation in the 1960s helped change the nature of
racial interaction despite considerable resistance,84 sex
harassment law has helped facilitate a change in the nature of
gender interaction. It is precisely when the law challenges
deep-rooted discriminatory notions that the law does and must
call for revised social norms. Social norms, though malleable,
are slow to change but the law can precipitate new
understandings of social behavior. To believe that sex
harassment law can be efficacious without affecting underlying
attitudes about women in the workplace is to misunderstand
the core of the problem. Some legal observers may believe that
the law should not act as the key apparatus for social reform,85
79
Id. at 7.
SEXUAL HARASSMENT IN THE FEDERAL WORKPLACE, supra note 75, at 9.
81
See, e.g., Michael J. Frank, The Social Context Variable in Hostile
Environment Litigation, 77 NOTRE DAME L. REV. 437, 503 (2002) (stating that Title VII
“inhibits social interactions and office relationships”).
82
SEXUAL HARASSMENT IN THE FEDERAL WORKPLACE, supra note 75, at 9
(“Only 18 percent of men and 6 percent of women respondents agreed that fear of being
accused of sexual harassment had made their organizations uncomfortable places to
work. Apparently the increasingly acknowledged need for self-restraint doesn’t
necessarily equate to discomfort on the job.”).
83
See Deborah Zalesne, Sexual Harassment Law in the United States and
South Africa: Facilitating the Transition from Legal Standards to Social Norms, 25
HARV. WOMEN’S L.J. 143, 190 (2002) (arguing that the legitimacy of sex harassment
law depends upon harassment being viewed as “immoral behavior” that warrants
government intervention because harassment “inflicts physical, emotional,
psychological, and economic harm on its victims and society”).
84
Id. at 180.
85
See Martha Minow, Law and Social Change, 62 UMKC L. REV. 171, 171
(1993) (stating that “there tend to be two kinds of people when it comes to the topic of
‘law and social change’—those who believe that law is an important instrument of
80
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but the law does function as a type of social code. The law, as a
set of social rules, helps to organize society and holds people
accountable for their actions. The cultural legitimacy of sex
harassment law further can be strengthened through popular
culture and the media in terms of how the issue of sex
harassment is conveyed to the public, including the public
response to employers accused of sex harassment.86
IV.
THE CLASS DEBATE: BLUE-COLLAR V. WHITE-COLLAR?
According to a study that examined every federal
judicial opinion on workplace sex harassment for a period of
ten years after Meritor, harassment plaintiffs in these cases
were predominately women and predominately blue-collar or
clerical.87 In the federal district court opinions that mentioned
the occupational status of the plaintiff, 38% of the plaintiffs
were blue-collar, 29% were clerical employees, 21% were
management and white-collar, and 12% were professional.88
Furthermore, hostile environment claims made up the vast
majority of sex harassment claims, with 70% of the cases
involving only a hostile environment claim and 22.5% of the
cases involving both hostile environment and quid pro quo
claims.89 The large number of hostile environment harassment
cases that get filed in court demonstrate that sex harassment is
a broad societal problem, and not simply the result of a few
“bad apples” in the workplace.
Additionally, hostile environment claims more
frequently arose out of majority-male work settings, whereas
mixed-sex workplaces produced a greater percentage of quid
pro quo charges.90 The connection between instances of hostile
environment harassment and male-dominated workplaces is
important and strongly suggests that the mostly-male
composition of the workplace plays a role in fostering a type of
social change and those who think not”).
86
See Zalesne, supra note 83, at 216-17.
87
Ann Juliano & Stewart J. Schwab, The Sweep of Sexual Harassment Cases,
86 CORNELL L. REV. 548, 560-61 (2001) (“Only 5.4% of the plaintiffs (a total of twentyseven) are men . . . .”).
88
Id. at 561 (stating that the plaintiff’s occupation was provided in 90% of
the cases).
89
Id. at 565. This study examined 502 district court opinions and 164
appellate court opinions. Id. at 556.
90
Id. at 565-66 (“In the eighty-eight mostly-male workplace cases, only 17%
include a quid pro quo claim and 83% rely solely on hostile environment claims. In the
145 mixed-workplace cases, by contrast, 34% include quid pro quo claims and only 66%
rely solely on hostile environment claims.”).
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environment that women find harassing and discriminatory.
The pervasiveness of sex harassment in both blue-collar and
white-collar jobs further indicates that class norms are not
driving this phenomenon.
Some courts, however, both pre- and post-Oncale, have
mistakenly concentrated on the class culture of the workplace
as part of their totality and social context analysis, causing a
Circuit divide.91 Among the Circuit courts, the Fifth, Seventh,
Eighth, Tenth, and District of Columbia Circuits have largely
taken into account workplace culture in terms of class when
assessing a harassment claim.92 On the other end of the
spectrum, the First, Fourth, and Sixth Circuits have declined
to factor in workplace class culture.93 The Circuits that give
special treatment to class culture are primarily motivated by
formalist and administrative concerns, whereas the Circuits
that refuse to take this approach are motivated by equality
concerns.94
A.
Special Treatment of Class Context
One of the first court decisions that considered
workplace culture was Gross v. Burggraf Construction Co.95 The
plaintiff, Patricia Gross, was hired as a water truck driver with
a construction company and was supervised by George Randall
Anderson.96 In asserting her Title VII claim, Gross alleged that
Anderson harassed her by calling her parts of the female
anatomy and remarking to another employee, “Mark,
sometimes don’t you just want to smash a woman in the face?”97
The district court granted the defendant construction
company’s motion for summary judgment, and Gross
91
See Frank, supra note 81, at 438-41.
See, e.g., Barbour v. Browner, 181 F.3d 1342, 1349 (D.C. Cir. 1999);
Shepherd v. Slater Steels Corp., 168 F.3d 998, 1010-11 (7th Cir. 1999); Johnson v.
Hondo, Inc., 125 F.3d 408, 412 (7th Cir. 1997); Montandon v. Farmland Indus., 116
F.3d 355, 358 (8th Cir. 1997); Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1537-38
(10th Cir. 1995); Reed v. Shepard, 939 F.2d 484, 491-92 (7th Cir. 1991); Vaughn v. Pool
Offshore Co., 683 F.2d 922, 924-25 (5th Cir. 1982).
93
See, e.g., O’Rourke v. City of Providence, 235 F.3d 713, 735 (1st Cir. 2001);
Conner v. Schrader-Bridgeport Int’l, Inc., 227 F.3d 179, 194 (4th Cir. 2000); Jackson v.
Quanex Corp., 191 F.3d 647, 662 (6th Cir. 1999); Williams v. Gen. Motors Corp., 187
F.3d 553, 564 (6th Cir. 1999).
94
Frank, supra note 81, at 440-41.
95
53 F.3d 1531 (1995).
96
Id. at 1535.
97
Id. at 1536.
92
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appealed.98 The Tenth Circuit fully embraced the idea that
Gross’ work environment should be evaluated according to its
blue-collar nature “where crude language is commonly used by
male and female employees. Speech that might be offensive or
unacceptable in a prep school faculty meeting, or on the floor of
Congress, is tolerated in other work environments.”99 Citing
Rabidue v. Osceola Refining Co.,100 the Tenth Circuit affirmed
that different workplace norms may exist in certain work
environments:
[Otherwise,] [t]he standard for determining sex[ual] harassment
would be different depending upon the work environment. Indeed, it
cannot seriously be disputed that in some work environments,
humor and language are rough hewn and vulgar. Sexual jokes,
sexual conversations and girlie magazines may abound. Title VII
was not meant to—or can—change this.101
The Tenth Circuit compared the construction setting of
Gross’ job with that of a prep school faculty meeting or the
Congress floor to conclude that different speech is acceptable in
different types of workplaces. In dismissing Gross’ claim, the
Court concluded that crude language in a blue-collar
environment is part of the workplace culture and does not rise
to the level of actionable gender-based harassment and
discrimination under Title VII.102 The court preferred to defer to
the already-existing “rough-hewn” culture of the blue-collar
environment rather than use Title VII to help bring about a
cultural change in the workplace with respect to gender
relations.
These courts gave special consideration to the class
context of the workplace because they believe it is highly
pertinent to assessing the objective and subjective severity of
the alleged conduct.103 In defending this approach, at least one
law review article posits that factoring in “workplace culture”
(defined in terms of class) can serve to better differentiate
between unrefined teasing and a serious case of harassment.104
The benefits would include reducing some of the ambiguity
present in hostile environment law to promote consistency and
98
Id.
Id. at 1538.
584 F. Supp. 419 (E.D. Mich. 1984), aff’d, 805 F.2d 611 (6th Cir. 1986), cert.
denied, 481 U.S. 1041 (1987).
101
Gross, 53 F.3d at 1538 (quoting Rabidue, 584 F. Supp. at 430).
102
Id. at 1538, 1547.
103
See Frank, supra note 81, at 466.
104
Id. at 490.
99
100
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certainty in the legal outcomes of these cases.105 Under this
view, narrowing the current standards would also cut down on
the number of harassment cases that increasingly occupy
federal and state court dockets.106
B.
Non-Special Treatment of Class Context
Despite its previous ruling in Rabidue, the Sixth Circuit
ruled the other way in Williams v. General Motors Corp.107 In
this case, plaintiff Marilyn Williams worked the midnight shift
in a plant warehouse, distributing materials used at the plant
to assemblers.108 She alleged that during her employment in
this shift, she was harassed by her coworkers and male
supervisor in a series of both sexual and nonsexual ways,
creating a hostile work environment based on her gender in
violation of Title VII.109 The district court denied relief by
granting summary judgment in favor of the employer, and
Williams appealed.110
The Sixth Circuit in Williams explicitly declined to
adopt a different severity standard for a hostile environment
according to the work culture and openly stated its
disagreement with the Circuit decision in Gross:
We do not believe that a woman who chooses to work in the maledominated trades relinquishes her right to be free from sexual
harassment; indeed, we find this reasoning to be illogical, because it
means that the more hostile the environment, and the more
prevalent the sexism, the more difficult it is for a Title VII plaintiff
to prove that sex-based conduct is sufficiently severe or pervasive to
constitute a hostile work environment. Surely women working in the
trades do not deserve less protection from the law than women
working in a courthouse.111
As the Williams Court observed, factoring in the blueor white-collar nature of the workplace creates two tiers of
protection under Title VII, and makes it more problematic for
women in blue-collar fields to obtain legal redress for hostile
environment harassment by requiring them to show a level of
vulgarity above and beyond the normative culture of the trade.
105
106
107
108
109
110
111
Id. at 492.
See id.
187 F.3d 553 (6th Cir. 1999).
Id. at 559.
Id. at 559-60.
Id. at 560.
Id. at 564.
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The First Circuit in O’Rourke v. City of Providence112
followed the approach of the Sixth Circuit. In O’Rourke, the
plaintiff was hired as a firefighter with the City of Providence
Fire Department.113 Starting from her training period and
continuing throughout her employment as a line firefighter, the
plaintiff was the target of a constant discriminatory campaign
that included her being subjected to sexually disparaging
comments, sexual taunts, pornographic material, and
differential treatment by her supervisors.114 Although the City,
relying on Gross, posited that the conduct of the plaintiff’s
coworkers needed to be considered within the blue-collar
context of the firefighting industry, the First Circuit declined to
embrace this different standard for the same reasons
articulated by the Williams court.115
The Williams and O’Rourke Courts in essence provided
an equality rationale for rejecting workplace culture as a
relevant factor in assessing harassment claims: women in bluecollar fields should not have to endure considerably more
“coarseness” in order for their claims to come within the
protective ambit of Title VII.116 While the equality argument is
a compelling one, it poses the problem of relativism in that
such an argument seeks to focus only on equality of status
rather than on elevation of status.117 In other words, courts
could simply require all workers to demonstrate the level of
vulgarity currently demanded of blue-collar plaintiffs and still
ensure equal, albeit inadequate, protection. Courts instead
should aim not only to equalize but also to enhance the
protection afforded to all working women by advocating for an
equal and better standard.
As previously discussed, courts that give special
emphasis to workplace culture offer legalist reasons for
adopting such an approach, including: certainty, predictability,
and uniformity of decisions.118 But these goals would also be
achieved if all courts were to refrain from giving special
treatment to workplace culture. Further, while these objectives
may be desirable, they should not be prioritized at the expense
of failing to address the common and pervasive nature of sex
112
113
114
115
116
117
118
235 F.3d 713 (1st Cir. 2001).
Id. at 717.
Id. at 718-25.
Id. at 735.
See id.; Williams, 187 F.3d at 564.
I owe thanks to Robin West for her insight on this point.
Frank, supra note 81, at 492.
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harassment, an area of the law difficult to demarcate with
bright lines. Sex harassment, especially in the form of hostile
environment, should be addressed in its widespread form
under anti-discrimination law according to Title VII’s “broad
rule of workplace equality.”119 The ubiquitous nature of sex
harassment at work may make it more difficult to regulate
efficiently, but it is no less a serious harm simply because it is
so widespread.
Those who see Title VII as overbroad and vague may be
concerned about the law’s possible chilling effect on speech,
particularly speech that is regulated based on its content and
viewpoint, such as crude or sexist language.120 The First
Amendment right is not absolute, however, and the Supreme
Court has held that the government may prohibit or limit
certain categories of speech, including fighting words, 121
offensive speech,122 and obscenity,123 all of which may apply to
the kinds of vulgar and derogatory comments and materials
that make up the facts in hostile environment claims.124 The
Supreme Court has been more wary of restricting speech on the
basis of point of view, holding in R.A.V. v. City of St. Paul125 that
discriminatory fighting words that express a specific viewpoint
are protected under the First Amendment. But the Court in
R.A.V. differentiated Title VII’s regulation of sexually
harassing conduct from the statute at issue:
[S]ince words can in some circumstances violate laws directed not
against speech but against conduct (a law against treason, for
example, is violated by telling the enemy the nation’s defense
secrets), a particular content-based subcategory of a proscribable
class of speech can be swept up incidentally within the reach of a
statute directed at conduct rather than speech. Thus, for example,
119
See Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993); MACKINNON, supra
note 6, at 96-97.
120
See, e.g., Frank, supra note 81, at 499.
121
Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942) (holding that
“fighting words” or “those which by their very utterance inflict injury or tend to incite
an immediate breach of the peace” are not constitutionally protected speech).
122
FCC v. Pacifica Found., 438 U.S. 726, 746-50 (1978) (holding that it is
constitutional to restrict “indecent” speech, especially when it is directed toward a
captive audience).
123
Miller v. California, 413 U.S. 15, 24-25 (1973) (holding that “patently
offensive” sexually-oriented speech has minimal First Amendment protection).
124
See MICHAEL J. ZIMMER, CHARLES A. SULLIVAN, RICHARD F. RICHARDS, &
DEBORAH A. CALLOWAY, CASES AND MATERIALS ON EMPLOYMENT DISCRIMINATION 60311 (2000).
125
505 U.S. 377 (1992) (involving a cross-burning statute that prohibited
symbols that would create “anger, alarm, or resentment in others on the basis of race,
color, creed, religion, or gender”).
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sexually derogatory “fighting words,” among other words, may
produce a violation of Title VII’s general prohibition against sexual
discrimination in employment practices . . . . Where the government
does not target conduct on the basis of its expressive content, acts
are not shielded from regulation merely because they express a
discriminatory idea or philosophy.126
According to the Court’s dicta, harassing speech is
proscribable under Title VII because the speech is construed as
discriminatory conduct. Free speech advocates may believe
that the freedom of private individuals to speak outweighs the
competing interest in nondiscrimination, but the high Court
appears to be willing to tolerate the incidental effect on speech
involved in prohibiting discriminatory behavior in the
workplace.
V.
DEBUNKING THE ASSUMPTIONS
A.
Judicial Depictions of Blue-Collar Norms
As one peruses the court decisions in hostile
environment harassment cases, one can identify a pattern
among the judicial depictions of blue-collar behavioral norms.
The judiciary in large part has not attempted to deliver
informed and empathetic decisions about the plight of bluecollar targets of harassment, but instead has offered detached
and thin observations about the blue-collar workplace.127 The
distance that some judges place between themselves and bluecollar workers is made evident in their court opinions. The
Tenth Circuit’s proclamation in Gross that crude speech is
“tolerated” in the blue-collar environment but would be
“offensive or unacceptable” in a white-collar setting such as a
“prep school faculty meeting” or “on the floor of Congress”
exemplifies the exaggerated notions of what goes on in the
“rough and tumble” blue-collar work world.128
In addition to implying that blue-collar environments
have lower standards of decorum than white-collar
environments, such judicial opinions beg the question of why
126
Id. at 389-90 (citations omitted).
Martha Nussbaum maintains that in addition to “technical legal
knowledge, a knowledge of history and precedent, [and] careful attention to proper
legal impartiality[,] . . . judges must also be capable of fancy and sympathy” if they are
to issue “fully rational” decisions. MARTHA C. NUSSBAUM, POETIC JUSTICE: THE
LITERARY IMAGINATION AND PUBLIC LIFE 121 (1995).
128
Gross v. Burggraf Construction Co., 53 F.3d 1531, 1538 (1995).
127
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harassing speech that would be found unacceptable by whitecollar employees should be good and fine for their blue-collar
counterparts. It is difficult to ignore the classism that taints
these observations. In Rabidue, the appellate court provided a
similar line of stereotypical reasoning, agreeing with the
district court that “[s]exual jokes, sexual conversations and
girlie
magazines
may
abound”
in
“some
work
129
environments” —referring to blue-collar environments. Other
courts have contrasted the blue-collar environment to that of a
Victorian parlor,130 using sarcasm to portray what they view as
the prudish claims of blue-collar female plaintiffs in
harassment suits and to downplay the offensive working
conditions alleged.131 In Williams, Judge Ryan of the Sixth
Circuit stated in his dissent that “[t]he shop floor is a rough
and indelicate environment in which finishing school manners
are not the behavioral norm,”132 suggesting that blue-collar
settings are devoid of much civility.
The federal judiciary, however, consists of an elite group
of professionals who, secluded in their chambers, are far
removed from the blue-collar workplace and the daily habits of
the working-class.133 As such, they seem to accept at face value
that blue-collar employees have a cultural proclivity toward the
profane and vulgar, and rely on this assumption to make
sweeping generalizations about “blue-collar culture.” Given
that sex harassment injures women in the workplace and
interferes with their employment to keep them economically
vulnerable, it is troubling that judges have begun explicitly
using class differentiation to condone harassment against
women already socio-economically disadvantaged by their
129
Rabidue v. Osceola Ref. Co., 805 F.2d 611, 620-21 (6th Cir. 1986) (citing
Rabidue v. Osceola Ref. Co., 584 F. Supp. 419, 430 (E.D. Mich. 1984)).
130
See, e.g., DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 593
(5th Cir. 1995) (maintaining that “a less onerous standard of [Title VII sex harassment]
liability would attempt to insulate women from everyday insults as if they remained
models of Victorian reticence.”); Hall v. Gus Constr. Co., 842 F.2d 1010, 1017 (8th Cir.
1988) (stating that “Title VII does not mandate an employment environment worthy of
a Victorian salon.”).
131
See Rebecca Brannan, When the Pig is in the Barnyard, Not the Parlor:
Should Courts Apply a “Coarseness Factor” in Analyzing Blue-Collar Hostile Work
Environment Claims?, 17 GA. ST. U. L. REV. 789, 811 (2001).
132
Williams v. Gen. Motors Corp., 187 F.3d 553, 571 (6th Cir. 1999).
133
See, e.g., Terence Dunworth & Joel Rogers, Corporations in Court: Big
Business Litigation in U.S. Federal Courts, 1971-1991, 21 LAW & SOC. INQUIRY 497,
516 (1996) (noting that “judges tend to come from an upper-class background, or at
least have reached the upper classes, and may favor upper-class or corporate
litigants”).
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occupations. Further, such a differentiation serves to promote
the harmful public policy of maintaining permanent class
distinctions in our society.134
B.
Vulgarity Along the Workplace Spectrum
Notwithstanding the exaggerated depictions, pitting the
behavioral norms of the trades against the professions is both
unsettling and inaccurate. Vulgar language and crude behavior
routinely takes place not only on the shop-floor but also in the
office space. One only need recall that the outrageous
harassing incidents in Meritor took place in the “professional”
white-collar setting of a bank, where the branch’s vicepresident showed himself to be no model of refinement.135
Sex harassment cases set in white-collar environments
are replete with instances of vulgar language. For instance, in
Smith v. Northwest Financial Acceptance, Inc.,136 the plaintiff
worked in a financial services office as an accounts service
representative.137 In this small office setting where everyone
shared an open working space without any walls or partitions,
the plaintiff’s supervisor publicly commented that she should
“get a little this weekend” so that she could return “in a better
mood,” that she would be “the worst piece of ass that I ever
had,” and that she “must be a sad piece of ass” who “can’t keep
a man.”138 The supervisor also made at least one racially
offensive remark to the plaintiff when he said that she “would
find a decent man if [she] just quit dating Mexicans.”139
The court in Smith distinguished the employment
setting in this case from that in Gross,140 stating: “This is not a
factual scenario like that in Gross v. Burggraf Construction Co.,
where the rough and tumble surroundings of the construction
industry can make vulgarity and sexual epithets common and
134
While this article argues that class does not and should not matter in the
adjudication of hostile environment harassment claims, this is not to suggest that class
or socio-economic status is not an important consideration in other social contexts or
with respect to other legal claims. The argument presented here only aims to show that
sex harassment is linked to traditional masculine norms in the workplace, and as such
should not be trivialized because of the class context of the plaintiff’s work
environment.
135
See Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986). See supra notes 14-20
and accompanying text.
136
129 F.3d 1408 (10th Cir. 1997).
137
Id. at 1412.
138
Id. at 1414.
139
Id.
140
53 F.3d 1531 (10th Cir. 1995).
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reasonable conduct.”141 The Tenth Circuit in Smith accepted
Gross’ holding that more extreme and coarse conduct can be
“reasonable” in certain class-affiliated industries, but implied
that this standard does not apply to the “genteel” setting of the
financial industry. Thus the plaintiff was allowed to recover on
her hostile work environment sex harassment claim,142 although
she likely would not have prevailed if she had been a bluecollar employee.
Alternatively, the court in a white-collar harassment
case may invoke the personality norms of an individual to pin
the offending behavior on the person rather than on the work
environment. Such an approach allows the court to maintain
its class-based expectation regarding the white-collar work
setting. In Gleason v. Mesirow Financial, Inc.,143 another case
set against the polished backdrop of a financial firm, the
Seventh Circuit observed that “vulgar banter, tinged with
sexual innuendo” cannot be completely avoided in the “modern
workplace.”144 Acknowledging the liberal use of coarse language
described in the facts of this case, the court implied that
vulgarity is certainly not limited to the working-class context.145
But the court also depicted the firm’s supervisor as particularly
“coarse and boorish,” specific personality traits that spilled into
his workplace behavior.146 In attributing the conduct to the
particular individual, it appears that the court attempted to
preserve the pristine appearance of the white-collar workplace
by suggesting that it was an aberrational individual and not
the culture of the work environment that caused the
harassment.
In yet another white-collar harassment case,147 the court
noted that the plaintiff and her supervisor merely had different
working styles (the plaintiff was “straight-laced” whereas her
supervisor was “more informal” and “relaxed”),148 implying that
the plaintiff might have over-reacted to her boss’ “friendly and
perhaps romantic” but not harassing actions.149 One of his
“relaxed” remarks included the following: “You cold northern
141
142
143
144
145
146
147
148
149
Smith, 129 F.3d at 1414 (citation omitted).
Id. at 1419.
118 F.3d 1134 (7th Cir. 1997).
Id. at 1144.
Id.
Id.
Fox v. Ravinia Club, Inc., 761 F. Supp. 797 (N.D. Ga. 1991).
Id. at 799.
See id. at 800.
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bitch. Why don’t you give us southern boys a break and say yes
once in a while?”150 He further commented to the plaintiff that
she, in her position as the secretary for membership services at
the private club where she worked, could offer sex to encourage
prospective members to join.151 The court conceded that sexual
innuendos were commonplace in the plaintiff’s work
environment, but nonetheless held that the crude and
suggestive conversation at issue did not amount to actionable
harassment.152
The facts in these cases vividly show that coarse
language and behavior infiltrate all kinds of workplaces,
regardless of the class association of the specific work setting or
type of industry. Coarseness may be more visible in blue-collar
environments (in the form of pin-ups and other visual markers
of crude sexuality) perhaps because blue-collar employees
generally do not need to maintain presentable workspaces for
clients, whereas white-collar employees have a public image to
consider.
However, crudeness may also openly thrive in visual
form even in white-collar office environments. In Brennan v.
Metropolitan Opera Ass’n,153 the female plaintiff, who worked as
an Assistant Stage Director at the Metropolitan Opera
Association (“Met”), complained that the coworker with whom
she shared an office had pinned up postcard-sized pictures of
nude and semi-nude men on one of the office’s bulletin boards.154
A couple of the pictures were cut so that only the bodies were
displayed.155 When the plaintiff took down the pictures and told
her coworker that she found them offensive, her coworker did
not respond but re-posted the pictures.156 Although the plaintiff
informed her supervisor about the pictures, they remained on
the bulletin board for the rest of the plaintiff’s tenure at the
Met.157
The court ruled that these pictures did not create a
hostile work environment because the plaintiff lacked evidence
to show that they were a hindrance to her work performance.158
150
151
152
153
154
155
156
157
158
Id.
Id. at 799.
Fox, 761 F. Supp. at 801.
192 F.3d 310 (2d Cir. 1999).
Id. at 315.
Id.
Id.
Id.
Brennan, 192 F.3d at 319.
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The court did not mention the workplace culture of the Met; it
only stated that the pictures were “arguably inappropriate in a
work setting.”159 This case illustrates that white-collar
workplaces are not necessarily clean of visual coarseness, as
employees may bring lewd materials to the office for either
private or office consumption.
Thus, despite some courts’ tendency to want to
distinguish between the blue-collar shop and the white-collar
suite when it comes to sex harassment, their class expectations
do not hold true. Courts invoke either the nature of the
workplace or the nature of the individual to explain the
offending vulgarities at issue and to maintain their classdefined conceptions of the specific work environment. Adjusting
the explanation for the harassing conduct, however, does not
change the facts behind the harassment: crude behavior exists
along the workplace spectrum, demonstrating that even while
the industry setting changes, the behavior does not.
C.
Sex Harassment and the Cultural Defense Argument
The Anita Hill-Clarence Thomas hearings propelled the
issue of sex harassment into the public limelight in 1991.160
During the Senate confirmation hearings for Thomas’
nomination to the Supreme Court, Hill testified that Thomas
had harassed her while she worked for him, first at the
Department of Education and then again, ironically, at the
EEOC.161 The conversations that Hill recounted having had
with Thomas at work are not at all tame, and could match the
vulgarity of anything said on the factory floor:
[Judge Thomas] would call me into his office for reports on education
issues and projects or he might suggest that . . . we go to lunch to a
government cafeteria. After a brief discussion of work, he would turn
the conversation to a discussion of sexual matters. His conversations
were very vivid. He spoke about acts that he had seen in
pornographic films involving such matters as women having sex
with animals, and films showing group sex or rape scenes. He talked
about pornographic materials depicting individuals with large
penises, or large breasts involved in various sex acts.162
159
Id.
Nomination of Judge Clarence Thomas to be Associate Justice of the
Supreme Court of the United States, Hearings Before the Senate Comm. on the
Judiciary, 102d Cong., pt. 4 (1991) [hereinafter Hill-Thomas Hearings].
161
Id. at 36-38.
162
Id. at 37.
160
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Hill’s testimony included another crude incident that
she stated occurred at Thomas’ office at the EEOC, where he
made the now infamous comment, “Who has put pubic hair on
my Coke?”163 According to Hill, Thomas also told her about an
individual he had seen in some pornographic material with the
name “Long John Silver.”164 If these allegations about Thomas
are true, then vulgarity knows no boundaries and pervades
even the high-level government office.
Despite the white-collar context of Hill’s workplace,
some Senators clearly wanted evidence of extreme vulgarity in
Thomas’ actions before conceding that Thomas may have
harassed Hill.165 Senator Arlen Specter began his interrogation
of Hill with “You testified this morning . . . that the most
embarrassing question involved—this is not too bad—women’s
large breasts. That is a word we use all the time. That was the
most embarrassing aspect of what Judge Thomas had said to
you.”166 Aside from the fact that Senator Specter was
163
Id. at 38.
Id. at 56.
165
In response to the Senate’s unrelenting quest to discover the most lurid of
details regarding the harassment allegations, Hill shared her thoughts on the ordeal in
her autobiographical account of the hearings: “How many times . . . how much detail . .
. how vulgar did the language have to be and . . . how uncomfortable do I have to feel in
order for [them] to comprehend what happened to me?” ANITA HILL, SPEAKING TRUTH
TO POWER 178 (1997) (ellipses and brackets in original).
166
Hill-Thomas Hearings, supra note 160, at 61. Another significant aspect of
Hill’s allegations is that she, a black woman, was charging a black man of sexual
impropriety. As a result, racial as well as gender politics came into play, as shown by
the fact that Thomas characterized the hearing as a “high-tech lynching.” Id. at 157. As
Kimberlé Crenshaw points out, it should have been clear that the lynching metaphor
did not apply to Thomas’ situation, primarily because this was an intra-racial case and
lynching was historically used by the white mob to victimize black men who had been
suspected of raping white women. See Kimberlé Crenshaw, Whose Story Is It, Anyway?
Feminist and Antiracist Appropriations of Anita Hill, in APPLICATIONS OF FEMINIST
LEGAL THEORY TO WOMEN’S LIVES 832-33 (D. Kelly Weisberg ed., 1996). But Thomas
strategically deployed this powerful symbol of racial oppression to bring his racial
identity as a black male to the fore and make this case one of race discrimination
rather than sex harassment. See generally Emma Coleman Jordan, The Power of False
Racial Memory and the Metaphor of Lynching, in RACE, GENDER, AND POWER IN
AMERICA: THE LEGACY OF THE HILL-THOMAS HEARINGS 37 (Anita Faye Hill & Emma
Coleman Jordan eds., 1995). Simultaneously, Hill’s identity as a black woman receded
into the background and Thomas’ misplaced metaphor went unchallenged. See A. Leon
Higginbotham, Jr., The Hill-Thomas Hearings—What Took Place and What Happened:
White Male Domination, Black Male Domination and the Denigration of Black Women,
in RACE, GENDER, AND POWER IN AMERICA: THE LEGACY OF THE HILL-THOMAS
HEARINGS 32-33 (Anita Faye Hill & Emma Coleman Jordan eds., 1995). The changed
focus of the hearings too clearly illustrates how accusations of racism can take
precedence over accusations of sexism, as our national leaders tend to tread more
carefully around the issue of possible race bias. Crenshaw, supra, at 832 (“Thomas’s
move to drape himself in a history of black male repression was particularly effective in
the all-white male Senate, whose members could not muster the moral authority to
164
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attempting to mischaracterize Hill’s statement, his remark also
demonstrates that crude speech (at least involving “women’s
large breasts”) is apparently tolerated on the floor of Congress.
In the wake of the Hill-Thomas hearings, Harvard
sociologist Orlando Patterson put forth a cultural critique of
Hill’s harassment claim.167 In a New York Times op-ed piece,
Patterson argued that even if Thomas did engage in the sexual
talk that Hill alleged, Thomas’ behavior could not be construed
as sex harassment because he was only using the “down-home
style of courting” supposedly characteristic of interaction
between black women and black men.168 According to Patterson,
even if the allegations were accurate, Thomas would be
justified in lying during the hearings because most of the
nation would not comprehend that such sexual teasing is a part
of black courtship practice.169 Despite the fact that there was no
“back-and-forth sexual banter” in Hill’s case in that she did not
play the part of the “repart-ee” to Thomas’ “repart-or,”170
Patterson questioned whether Hill was truly harmed by the
alleged comments, responding incredulously to her disregard
for black mating practices and her uninformed reaction.171
Even assuming that the sexual banter described by
Patterson is a part of the black cultural dating script, there is
no reason to further assume that black women actually desire
this style of courting, notwithstanding their familiarity with
it.172 In fact, such a reading of women’s wants ignores the larger
socio-historical context of gender relations and how men have
been allowed to define what women apparently desire.173
Women are familiar with sex harassment and a host of other
offensive and abusive behavior that have long been socially
condoned in our history of unequal power between the
challenge Thomas’s sensationalist characterization.”).
167
Orlando Patterson, Editorial, Race, Gender, and Liberal Fallacies, N.Y.
TIMES, Oct. 20, 1991, § 4, at 15.
168
Id.
169
Id.
170
See Hill-Thomas Hearings, supra note 160, at 37 (demonstrating that
Anita Hill maintained throughout her testimony that she on several occasions told
Thomas that she found his comments inappropriate, and never said anything to
suggest that she welcomed or appreciated his sexual remarks).
171
Patterson, supra note 167.
172
See Crenshaw, supra note 166, at 838.
173
See Robin West, The Difference in Women’s Hedonic Lives: A
Phenomenological Critique of Feminist Legal Theory, 3 WIS. WOMEN’S L. J. 81 (1987)
(arguing that “women suffer more than men” and that “women often find painful the
same objective event or condition that men find pleasurable”).
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genders.174 Therefore whether Hill was aware of any such
“down-home style of courting” is irrelevant, especially given
that the alleged conduct took place within the hierarchical
setting of the workplace where Thomas was her superior.175
Unlike how Patterson portrays it, sex harassment is not a
dating problem;176 women employees find sex harassment
abusive and debilitating because it denies them equal dignity
and opportunity in the public realm of work.177
Patterson’s argument is basically a cultural defense
argument in that he attempts to explain and excuse Thomas’
behavior by introducing a black cultural custom to show that
Thomas did not act with the intent to harass.178 Primarily
employed in criminal law, immigrant defendants have asserted
a cultural defense in cases of spousal murder, positing that
they acted in accordance with their particular cultural (i.e., not
American) mandates, and thus should be judged against a
different and culturally-sensitive standard.179 The cultural
defense can also be likened to the “provocation defense” or
“heat of passion” defense, raised in intimate homicide cases.180
Under the provocation defense, men who kill in passion are
partially justified because they could not maintain selfrestraint in cases of adultery.181 Just as these defenses serve to
174
Other culturally-sanctioned behavior that women have had to endure
include rape (both stranger- and acquaintance-rape), domestic violence, and stalking.
See, e.g., Lee, supra note 12, at 389-405 (tracing the history of stalking behavior from
ancient to modern times and illustrating that stalking activity has been culturally
encouraged and facilitated by Western notions of romance).
175
Crenshaw, supra note 166, at 837 (noting that Patterson’s argument fails
to differentiate between the private personal world and the public work world in the
way that men and women interact).
176
Id. at 838.
177
See generally MACKINNON, supra note 6.
178
See Crenshaw, supra note 166, at 835; Leti Volpp, (Mis)Identifying Culture:
Asian Women and the “Cultural Defense,” 17 HARV. WOMEN’S L. J. 57, 57 (1994) (“The
‘cultural defense’ is a legal strategy that defendants use in attempts to excuse criminal
behavior or to mitigate culpability based on a lack of requisite mens rea.”).
179
See Volpp, supra note 178, at 57. One such case is People v. Dong Lu Chen,
in which a Chinese immigrant accused his wife of infidelity and murdered her in
accordance with “Chinese culture” for bringing shame onto the family. Persuading the
trial judge of his cultural defense, the defendant was granted probation instead of a
prison sentence. Id. at 64-77.
180
See Victoria Nourse, Passion’s Progress: Modern Law Reform and the
Provocation Defense, 106 YALE L.J. 1331,1339-44 (1997).
181
Id. at 1339. The long-held image of intimate murder involved provocation
due to sexual infidelity, but Nourse points out that many of the actual cases in which
the provocation defense is used do not concern adultery but a failed relationship in
which the woman left or tried to leave. In case after case, the male defendant who
killed his partner or ex-partner in the “heat of passion” could realistically hope to
receive a lighter sentence based on his “‘extreme emotional disturbance.’” Id. at 1342-
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shield the lover-killer from liability, the blue-collar workplace
defense serves to shield the worker-harasser from liability.
These subculture-specific arguments fail to grasp that sexual
violence and gender subordination cross cultural and class
lines. Patterson’s claim that Hill was not a harassment victim
because she is black is analogous to the class culture claim that
the blue-collar woman is not a harassment victim because she
is blue-collar.
The problem of sexism in conjunction with racial and
cultural stereotyping presents an especially grievous problem
for black and other minority women workers. Stereotypical
images of colored women and their sexuality have dominated
America’s view of the “other” and whet some men’s fetishizing
appetites.182 African-American women, for example, are seen as
sexually available and aggressive women who do not need
protection from unwanted sex because they crave sexual
liaisons.183 Asian-American women are viewed as sexually
submissive and exotic, while Latina women are perceived as
sexually fiery with hot tempers and a sexual attitude to
match.184 The stereotyped sexual personality of a minority
woman operates to objectify her as a woman and as a woman of
her specific color, thus making her the target of an ugly blend
of both sex and race harassment.
In addition to being discriminated against on the basis
of their gender and particular race, immigrant women are
further vulnerable to sex harassment because their precarious
status in society makes it even more difficult for them to
challenge their abusive working conditions. These workers may
have limited language skills as well as limited knowledge about
their legal rights, and may fear being deported for complaining,
43.
182
See, e.g., Adele Logan Alexander, “She’s No Lady, She’s a Nigger”: Abuses,
Stereotypes, and Realities from the Middle Passage to Capitol (and Anita) Hill, in RACE,
GENDER, AND POWER IN AMERICA: THE LEGACY OF THE HILL-THOMAS HEARINGS 14-16
(Anita Faye Hill & Emma Coleman Jordan eds., 1995); Regina Austin, Sapphire
Bound!, 1989 WIS. L. REV. 539, 570-72 (1989) (describing the popular image of the
black woman as a “Jezebel,” a loose woman who flaunts her sexuality); Sumi K. Cho,
Converging Stereotypes in Racialized Sexual Harassment: Where the Model Minority
Meets Suzie Wong, 1 J. GENDER RACE & JUST. 177, 191 (1997) (noting that Asian
Pacific women are stereotypically viewed as “exotic, hyper-eroticized, masochistic,
desirous of sexual domination”); Maria L. Ontiveros, Three Perspectives on Workplace
Harassment of Women of Color, 23 GOLDEN GATE U. L. REV. 817, 820 (1993)
(identifying the stereotype of Latina women as “hot-blooded” and very sexual).
183
See generally Alexander, supra note 182; Austin, supra note 182.
184
See generally Cho, supra note 182; Ontiveros, supra note 182.
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depending on their immigration status.185 Immigrant women
are commonly harassed,186 prompting EEOC suits such as the
class action against Grace Culinary Systems, Inc. and
Townsend Culinary, Inc. for allegedly maintaining harassing
and hostile work conditions for twenty-two of their immigrant
female workers, a case that ultimately settled for $1 million.187
These immigrant women were low-wage workers at a foodprocessing plant and were forced to deal with their managers’
groping and requests for sexual favors over a period of several
years.188 The problem of sex harassment thus reaches and
harms immigrant female laborers, who are many times
disadvantaged because of gender, class, race, ethnicity, and
alienage.189
On a fundamental level, the problem of sex harassment
affects and harms women of all backgrounds and in all
occupations. The larger conversation needs to be steered away
from the false distinction between blue- and white-collar
environments. Rather, the discussion should be recast in terms
of masculine workplace norms discriminating against and
encumbering female workers,190 preventing their significant, if
not equal, foothold in the labor market.
VI.
REFRAMING THE DISCUSSION: MASCULINE, NOT CLASS,
WORKPLACE NORMS
Characterizing vulgar behavior that women find
harassing as either class-based or individually-determined
neglects to protect women workers and fails to provide equal
opportunity in the workplace as required under Title VII.
Harassment should not be understood as lying on a spectrum of
185
See Maria L. Ontiveros, To Help Those Most In Need: Undocumented
Workers’ Rights and Remedies Under Title VII, 20 N.Y.U. REV. L. & SOC. CHANGE 607,
620-21 (1993-1994).
186
Id. at 620.
187
Press Release, U.S. Equal Employment Opportunity Commission, EEOC
Obtains $1 Million for Low-Wage Workers Who Were Sexually Harassed at Food
Processing Plant (June 1, 2000), at http://www.eeoc.gov/press/6-1-00.html (last visited
April 22, 2005).
188
Id.
189
While I do not presume to offer here a thorough discussion of how a woman
may experience sex harassment with respect to her race, ethnicity, and alienage, I
nevertheless seek to at least incorporate some of these concerns into this article,
because the experiences of all women should be considered to fully address the problem
of sex harassment.
190
Masculine norms, heterosexual in tradition, similarly discriminate against
non-conforming male workers. See discussion supra on Oncale in Part II.
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class-influenced normative behavior, but viewed as the product
of the socio-cultural normative behavior of men in the
workplace. Blue-collar men harass blue-collar women in their
shared workplaces while white-collar men harass white-collar
women in their same places of work. Consequently, gender
hostility—at times along with racial and ethnic hostility—is
predominately steering the harassment, and not class norms.191
A.
Sex Harassment As Male Normative Behavior
Sex harassment acts to keep the workplace a site of
male power and traditional cultural masculinity.192 As Kathryn
Abrams has cogently asserted in her scholarship on sex
harassment, work settings reproduce male-associated practices
and preferences that communicate men’s dominant social
Masculine
preferences
mold
the
work
influence.193
atmosphere—demonstrated for instance through sexuallyoriented chatter and horseplay—and this conduct becomes
viewed as “normal” for the workplace rather than a product of
masculine partiality and privilege.194 Threatened by the
increasing entry of women into the labor market, especially
into traditionally male jobs, employers and employees have
responded by forcefully maintaining and insisting upon their
normative masculine behavior, resulting in instances of sex
harassment.195
At its core, sex harassment is about conventional
masculine behavioral norms that operate to harm women
191
I do believe, however, that class prejudice can lead to abuse at work apart
from sex harassment. Regina Austin has argued that class or occupational prejudice
and elitism, in conjunction with racist and sexist attitudes, can operate to oppress
working-class employees. See generally Regina Austin, Employer Abuse, Worker
Resistance, and the Tort of Intentional Infliction of Emotional Distress, 41 STAN. L.
REV. 1 (1988).
192
See Kathryn Abrams, The New Jurisprudence of Sexual Harassment, 83
CORNELL L. REV. 1169, 1205-12 (1998).
193
Id. at 1210.
194
Id. Locating the problem of sex harassment within the larger context of
gender hierarchy, as described here, focuses on socially-constructed masculine versus
feminine norms rather than on biological sex. This argument converges with Katherine
Franke’s “hetero-patriarchal” analytical framework regarding sex harassment which
focuses on the devaluation of femininity vis-à-vis masculinity and the maintenance and
regulation of gender norms. See generally Katherine M. Franke, What’s Wrong with
Sexual Harassment?, 49 STAN. L. REV. 691 (1997). Abrams both builds upon and
departs from Franke’s framework by examining sex harassment within the particular
history and context of the work environment and the struggle for workplace equality.
Abrams, supra note 187, at 1193-1204.
195
Abrams, supra note 192, at 1206-10.
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economically,
physically,
emotionally,
and
sexually.
Traditionally male-dominated fields of work are just that—
male dominated—and hence it is unsurprising that workplace
norms reflect masculine behavioral norms rather than class
behavioral norms. As sociologist Georg Simmel explained:
“Man’s position of power does not only assure his relative
superiority over the woman, but it assures that his standards
become generalized as generically human standards that are to
govern the behavior of men and women alike. . . .”196 Men have
had a monopoly on the public world of work for much of our
history (except for certain traditional “pink-collar” fields such
as nursing, primary school teaching, and domestic help, all of
which parallel traditional female duties in the home), and thus
norms in the workplace have been derived from masculine
expectations and male entitlement.197 When women entered the
working world, they entered a pre-determined culture governed
by male standards that had evolved into commonplace
standards, which nevertheless remained gender-biased.
Sex harassment came to be considered a form of sex
discrimination because courts eventually recognized that
women workers were being treated differently on the basis of
sex and were disadvantaged on the job as a result.198 The
problem of sex harassment was first recognized three decades
ago as male superiors were using their job positions and
economic power to intimidate women.199 Male employers sought
to remind female employees that they could not stay in the
workplace unless they fulfilled their gender-expected role of
being compliant and sexually accessible.200 If the female
employee did not submit to her supervisor’s sexual demands,
then her employment status would suffer.201
Sex harassment emerged under the umbrella of Title
VII violations because such gender stereotyping and abuse
were finally understood to undermine women’s equal treatment
in the workplace.202 Legal feminist pioneer Catharine
196
GEORG SIMMEL, PHILOSOPHISCHE KULTUR (1911), quoted in MACKINNON,
supra note 5, at 3.
197
See Abrams, supra note 192, at 1205-06.
198
See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64-65 (1986) (recognizing sex
harassment as sex discrimination under Title VII); MACKINNON, supra note 6, at 143213 (arguing for an interpretation of sex harassment as a legal injury based on sex).
199
MACKINNON, supra note 6, at 2.
200
Id.
201
Id.
202
Id. at 57-82 (describing the history of early sex harassment cases).
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MacKinnon argued in the 1970s that women’s economic
subordination is linked to their sexual subordination, and that
the prevailing structure of gender relations made the sexual
domination of women a normative and pervasive occurrence.203
She asserted that sex harassment is a distinct injury that
afflicts many female employees because the sexual subjugation
of women in society recreates itself in the work setting. In
other words, women are vulnerable to sexual abuse because of
their inferior economic status in the workplace and in society.204
MacKinnon also identified two forms of sex harassment, quid
pro quo and condition-of-work (now known as hostile work
environment), 205 both of which were recognized by the Supreme
Court in Meritor.206
Uncovering the way in which sex harassment is
perpetrated, MacKinnon denounced the once-believed view that
sexual misbehavior is a private, individually-focused, and
natural matter, arguing instead that sex harassment is a
socially constructed public problem.207 By showing that sex
harassment is a pervasive injury inflicted predominately upon
women, who traditionally have less economic power,
MacKinnon maintained that it should have a public remedy
and be proscribed under federal anti-discrimination law.208
Workplace sex harassment is sex discrimination because it
prevents women from claiming equal power in the labor market
on the basis of their sex.209 According to MacKinnon, men’s
work-related control over women necessarily involves men’s
sexual control over women, since women’s unequal capital
status is interconnected with the social reality of unequal
sexual relations between men and women and the harmful
sexualization of women.210
MacKinnon’s socio-cultural explanation helped facilitate
a broad-based perspective on the problem of sex harassment by
addressing how the problem can be manifested in the form of a
discrete quid pro quo or diffuse hostile environment. Her work
aided in rendering workplace sex harassment a cause of action
203
204
205
206
207
208
209
210
Id. at 220.
See MACKINNON, supra note 6, at 216-18.
Id. at 32-47.
477 U.S. 57, 65 (1986).
MACKINNON, supra note 6, at 220.
Id. at 208.
Id. at 174-78.
Id. at 174.
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under Title VII, and helped spark a nationwide consciousness
that had remained dormant for too long.211
Another legal feminist scholar, Vicki Schultz, asserts
that sex harassment is mostly perpetrated to undermine or
insult women’s control over their work.212 She challenges what
she calls the sexual desire-dominance paradigm, the prevailing
belief that sex harassment must be of a sexual nature to be
actionable under Title VII.213 Instead, she contends that sex
harassment follows a competence-centered model in that it
primarily serves to discredit women’s competence and place in
the male-dominated sphere of work.214 In contrast to
MacKinnon, Schultz argues that sex harassment is not a mere
reflection of gender inequality produced elsewhere in society,
but actually serves to depict women specifically as incapable
workers. Sex harassment thus guarantees men’s superior
foothold in the workplace by granting them access to better
jobs, positions, and sources of power.215 Hence, Schultz posits
that sex harassment laws should be enforced according to
whether the harassment is gender-based, and not whether the
harassment is simply sexually driven or perpetrated.216
Harassment stemming from sexual desire or consisting of
sexual advances presumably would still be illegal under
Schultz’s definition, but would not constitute the only valid
kind of sex harassment. According to Schultz’s competencebased paradigm, male employers and coworkers in traditionally
male jobs want to preserve these occupations as male realms,
and thus harass female entrants in order to undermine their
efforts to succeed on the job.217
In a follow-up piece, Schultz argues that sex
harassment is primarily linked to sex segregation in
employment, where men exclusively or predominately occupy
positions of authority and engage in sex harassment to
maintain female employees’ subordinate and outsider status.218
Under this argument, the fact that men dominate the
211
See Cass Sunstein, Feminism and Legal Theory, 101 HARV. L. REV. 826,
829 (1988) (reviewing CATHARINE MACKINNON, FEMINISM UNMODIFIED (1987)).
212
Vicki Schultz, Reconceptualizing Sexual Harassment, 107 YALE L.J. 1683
(1998).
213
Id. at 1689.
214
Id. at 1755.
215
Id. at 1690-91.
216
Id. at 1795-96.
217
Schultz, supra note 212, at 1690-91.
218
Vicki Schultz, The Sanitized Workplace, 112 YALE L.J. 2061, 2171-72
(2003).
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organizational hierarchy is what renders sexual behavior
within the organization dangerous.219 Accordingly, Schultz
urgently calls for full gender integration in the workplace,
where women are equals and are represented at all levels of
the organization to ensure that they actually have a role in
shaping workplace dynamics.220
Despite their differences, both MacKinnon and Schultz
assert that sex harassment is based on sex and that masculine
coercion and entitlement dominate the workplace and the
gender relations within it. In this way, both scholars critique
the structural inequality of power between the sexes. Yet a
more complete picture finds that structural and socio-cultural
forces have operated in tandem to keep women marginalized at
work. The problem of sex harassment stems from hostile male
reactions to women as they enter and remain in the work
environment, regardless of whether the environment is blue- or
white-collar. Hence, cultural patterns of gender rather than
class govern the workplace.
Separating sex harassment claims into blue- and whitecollar contexts only advances irrelevant and detrimental class
distinctions that neglect the gender-based underpinnings of sex
harassment. The debate over the norms of blue- and whitecollar culture distracts attention from the main issue
underlying sex harassment. In recognizing that vulgar actions
permeate both the shop-floor and the office, one must keep in
mind the actual role of workplace culture in facilitating sex
harassment. The imagined distinction between white- and
blue-collar environments needs to be discarded so that the
discussion can be correctly refocused on traditional masculine
workplace norms and its injurious effect on female workers.
Courts have learned not to disaggregate incidents of
harassment but to look at the totality of the circumstances
because they understand that harassment rarely consists of
one discrete incident; rather, harassment is temporal and has a
cumulative effect. Courts also should not disaggregate
workplaces by class, because sex harassment in the workplace
reflects the sexism that is rooted in our larger cultural
traditions of gender interaction. Women have broken the
silence surrounding sex harassment by bringing cases and
sharing the devastating effect that harassment has had on
219
220
Id. at 2171-72.
Id. at 2174.
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their aspirations and sense of self. Like men, women seek
meaningful work to engage in productive activity and to gain a
sense of order over their lives, economic and otherwise, but sex
harassment in the workplace destroys their rightful and legal
expectations to equal opportunity.
B.
Question of Essentialism
Some critics may argue that focusing on the gendered
foundation of sex harassment promotes a uniform or “essential”
description of women’s experience in the workplace that
ignores other interacting facets of a woman’s identity, such as
race, ethnicity, class, and sexual orientation.221 However, the
aim here is certainly not to neglect or discount the relevance of
these various influential factors in women’s daily lives.222 This
work attempts to show only that class differentiation should
not be invoked to give less protection to blue-collar women
against sex harassment because both blue-collar and whitecollar women are harmed by it. Admittedly, blue-collar women
may at times experience more explicit sex harassment than
white-collar women, as depicted by scholars who have
conducted in-depth field research into the working lives of bluecollar women.223 But class at most only exacerbates sex
harassment—class neither mitigates nor explains sex
harassment. The source of sex harassment, whether in blue- or
white-collar settings, is found not in class culture but in
customary male behavioral norms operating in conjunction
with male hostility against women in their places of work.
221
See, e.g., Kimberlé Crenshaw, Demarginalizing the Intersection of Race and
Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and
Antiracist Politics, 1989 U. CHI. LEGAL F. 139, 166-67 (1989) (asserting that feminist
theory needs to incorporate a racial analysis to attract non-white women to the
movement); Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42
STAN. L. REV. 581, 586-90 (1990) (arguing that leading feminist legal theorists, while
sympathetic to the plight of all women, tend to speak in one voice that represents
women’s experience from a white, heterosexual, and privileged standpoint, and
obscures the experience of diverse women who do not fit into this prevailing norm).
222
See discussion supra Part V.C.
223
See, e.g., CAROL CHETKOVICH, REAL HEAT: GENDER AND RACE IN THE
URBAN FIRE SERVICE (1997) (interviewing female firefighters in the Oakland Fire
Department); Elvia R. Arriola, “What’s the Big Deal?” Women in the New York City
Construction Industry and Sexual Harassment Law, 1970-1985, 22 COLUM. HUM. RTS.
L. REV. 21, 51-63, app. at 70 (1990) (incorporating personal and telephone interviews of
women construction workers into her research).
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Progress (to be made) in the Workplace
The presence of a critical mass of women in white-collar
fields has altered to some extent, although by no means
eliminated, the normative practices (if not attitudes) of whitecollar men more so than in the blue-collar trades, where women
still only constitute a bare minority.224 The unfortunate reality
is that the specific interests of blue-collar women have been
marginalized by the mostly middle- and upper-class feminist
movement.225 The primary beneficiaries of the feminist
movement have been middle-class women who made progress
by entering the ranks of male-dominated white-collar jobs.226 As
the women’s movement sought to elevate women’s status in
society by bringing them into the most prestigious occupations,
the movement neglected to make a similar push to bring
working-class women into traditionally male blue-collar jobs.227
Consequently, women’s representation in highly-paid bluecollar jobs has lagged and continues to lag far behind women’s
representation in highly-paid white-collar jobs.228 For instance,
the percentage of women in full-time executive, administrative,
and managerial occupations was 34.2% in 1983 and increased
to 47.5% in 2002.229 On the other hand, women are far less
represented in higher paying blue-collar jobs, such as
protective service (17.7% women in 2002, up from 9.5% in 1983)
and precision production, craft, and repair (8.0% women in
2002, up from 7.9% in 1983).230 Within the protective service
occupations, women represented only 3.6% of firefighters and
12.4% of police and sheriff’s patrol officers in 2003.231 Likewise,
women represented only 2.8% of the construction trades in
2003.232 Further, women made up 7.9% of the labor force in the
224
Arriola, supra note 222, at 46-48.
See id. at 46.
226
Id.
227
See id. at 46-47.
228
See id. at 47.
229
Bureau of Labor Statistics, U.S. Dep’t of Labor, Rep. 972, Highlights of
Women’s Earnings in 2002, at 10 (2003) [hereinafter Highlights of Women’s Earnings
in 2002]. The first year for which comparable data is available is 1983.
230
Id.
231
Bureau of Labor Statistics, U.S. Dep’t of Labor, Household Data Annual
Averages: Employed Persons by Detailed Occupation, Sex, Race, and Hispanic or
Latino Ethnicity 211 (2003) [hereinafter Household Data Annual Averages 2003],
available at http://www.bls.gov/cps/cpsaatll.pdf (last visited March 03, 2005).
232
Id.
225
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transportation and material moving occupations in 2002,
slightly up from 4.7% in 1983.233
As the numbers show, progress has been slow. Rather
than gain significant entry into the better paying blue-collar
workforce, unskilled women have remained mostly represented
in the service occupation of private household work (92.5%
women in 2002 and 96.0% in 1983).234 The traditionally pinkcollar fields have remained female-dominated: in 2003 women
made up 96.6% of secretaries, 97.8% of preschool and
kindergarten teachers, and 92.1% of registered nurses.235 The
pay differentials among the various blue-collar occupations in
2002 were substantial: women who worked in private
household service occupations had median weekly earnings of
$276 while women in transportation and material moving jobs
made $449 per week; women in precision production made
$479 per week and women in protective service made $501 per
week.236 Within the blue-collar sector in 2000, the highest
paying occupations included protective service, precision
production, and transportation work, all of which have very few
women in their ranks.237
Despite the strides that women have made in whitecollar fields, the best paying and highly coveted blue-collar
sectors have yet to embrace women into its labor force. The
blue-collar division is still highly sex-segregated, indicating
that something about these workplaces is keeping women out.
This is even more problematic if one considers that women
make up a greater proportion of the working poor,238 including
poor one-parent families,239 and may be faced with the unsavory
“choice” of entering a predominately male and most likely
hostile blue-collar occupation for higher pay, or entering a
predominately female but lower-paying blue-collar job.
Given that women have not yet entered many of the
most arduous blue-collar trades in sufficient numbers to make
them their own, men in these trades may exhibit extreme
233
Highlights of Women’s Earnings in 2002, supra note 229, at 10.
See id.
235
See Household Data Annual Averages 2003, supra note 231, at 210, 212.
236
Highlights of Women’s Earnings in 2002, supra note 229, at 10.
237
See John E. Buckley, Rankings of full-time occupations, by earnings, 2000,
125 MONTHLY LAB. REV. 46 (2002).
238
See Abraham Mosisa, Bureau of Labor Statistics, U.S. Dep’t of Labor, Rep.
968, A Profile of the Working Poor, 2001, at 1-2 (2003) (“In 2001, the proportion of those
who were in the labor force for 27 weeks or more who were classified as working poor
continued to be higher for women than for men—5.5 versus 4.4 percent . . . .”).
239
See id. at 10-11.
234
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hostility in an attempt to stave off full sex integration and
preserve what they perceive to be the remaining “untainted”
preserves of male work culture.240 Part of what makes the most
segregated of the blue-collar fields so traditionally masculine
appears to be the significant physical strength and stamina
required, and the tool- or equipment-based nature of the
work.241 Hence, if men in these jobs derive their sense of
manhood from the manual and physically demanding aspects
of the job, then their masculine identity might be threatened by
seeing a woman doing the same work. Modern working-class
men may also feel a lack of job security in this increasingly
technological and globalized age, and thus perhaps more
urgently seek to maintain their tenuous grasp on laborintensive occupations.
Blue-collar women may have a harder time confronting
problems of sex harassment due to the greater physical risks
present in their work settings and the importance of coworker
assistance in dangerous jobs. Their class occupation should not
further be used against them in their demand for working
conditions free of abuse. Hostile environment harassment is
just as, if not more, serious and prevalent a problem for bluecollar women as it is for white-collar women. Consequently,
blue-collar women should not be forced to endure a more severe
degree of harassment before they can successfully hold their
harassers legally accountable. Moreover, subscribing to such
strict class differences suggests a kind of “class essentialism”
that ignores the significant relevance of gender in sex
harassment.
D.
Assumption of Risk Defense
Some observers maintain that women who apply for
blue-collar positions are aware of the coarse environments of
these jobs and hence assume the risk of being surrounded by
this kind of conduct when they enter the job.242 But contrary to
240
In addition to workplaces, hostile male opposition to women’s entry exists
in other all-male or nearly all-male environments. See, e.g., FALUDI, supra note 43, at
117-21 (1999) (describing the severe animosity unleashed toward the Citadel’s new
female faculty and first female cadets).
241
Id. at 85-86 (describing how traditional manhood involved man’s utility
with his hands).
242
See, e.g., Kelly Ann Cahill, Hooters: Should There Be An Assumption of
Risk Defense to Some Hostile Work Environment Claims?, 48 VAND. L. REV. 1107 (1995)
(exploring potential assumption of risk arguments in hostile environment suits).
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this claim, the problem in fact is that a woman’s “consent” has
been repeatedly invoked to justify her oppression, as Robin
West has observed: “[T]he conditions which create [women’s]
misery—unwanted pregnancies, violent and abusive marriages,
sexual harassment on the job—are often traceable to acts of
consent. Women—somewhat uniquely—consent to their
misery.”243
This assumption of risk argument is linked to the notion
of consent, which the Supreme Court termed as “voluntariness”
in Meritor: “The gravamen of any sexual harassment claim is
that the alleged sexual advances were ‘unwelcome.’ The correct
inquiry is whether respondent by her conduct indicated that
the alleged sexual advances were unwelcome.”244 Susan Estrich
makes an analogy between the voluntariness standard for sex
harassment victims and the consent standard for rape victims
in that both require that the victim demonstrate
unwelcomeness.245 To determine if the woman has expressed
that the offensive action was indeed unwelcome, Estrich notes
that courts are instructed by Meritor’s holding to look to the
woman’s conduct, implying that simple words of opposition
may not be sufficient.246 Certainly, a woman’s verbal resistance
to a man’s sexual pursuits has not been taken seriously in our
culture because the woman is expected to say no rather than
easily give in to his attention, an unfortunate legacy of our
Western courtship tradition.247 Yet on the other hand, as
Estrich cautions, a woman cannot act too stereotypically
“feminine” because she may then be seen to have welcomed the
sexual overtures.248 Applying this argument to a date-rape
situation might complicate matters even further since the
victim agreed to go on the date. But a date is not synonymous
with sex, and her presence on the date should not be construed
as her consent to anything that might happen on the date.
Likewise in the case of sex harassment, the assumption
of risk argument presumes that a woman’s presence in the
243
West, supra note 173, at 161.
Meritor Sav. Bank v. Vinson, 477 U.S. 57, 68 (1986) (emphasis added).
245
Susan Estrich, Sex at Work, 43 STAN. L. REV. 813, 813-816 (1991).
246
Id. at 825-26 (asserting that looking at the harassment victim’s conduct
can include focusing on how she dresses and talks to see if she acts in a provocative
manner).
247
See Lee, supra note 11, at 394-95 (arguing that stalking activity
predominately stems from our Western mores of romance and courtship, in which the
woman has the cultural role of playing “hard to get” and the suitor is expected to
engage in romantic persistence to “prove” his love).
248
Estrich, supra note 245, at 830.
244
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blue-collar work environment signals her “consent” to the
coarse practices of that environment. The female employee was
fully aware of the behavioral norms of the particular work
setting, the argument goes, and thus she must have been
willing to tolerate the conduct. Once a woman enters the bluecollar working world, she is on her own and can only blame
herself for choosing the wrong job if she ends up feeling
harassed.
How exactly should a woman act once she joins her male
counterparts in her blue-collar occupation? She might not want
to engage in vulgar banter with her coworkers but may feel
compelled to do so in an attempt to be seen as part of the group
and fit in. In Carr v. Gas Turbine Div.,249 for instance, the
plaintiff was the first female to work in the tinsmith shop and
in her testimony admitted that she joined her all-male
coworkers in crude dialogue because she wanted to be accepted
as “one of the boys.”250 The district court rejected Carr’s hostile
environment harassment claim, holding that since Carr herself
had used vulgarities, she “invited” the harassing conduct.251
Realizing the incongruity of this ruling, Chief Judge Richard
Posner, writing for the Seventh Circuit in Carr’s appeal,
quickly dismissed the trial court’s conclusion, stating that
“‘[w]elcome sexual harassment’ is an oxymoron.”252 Unlike the
district court judge, Judge Posner exhibited more empathy in
his opinion as he attempted to understand the events that took
place in the tinsmith shop from Carr’s lone standpoint, stating
that “her [vulgar] words and conduct cannot be compared to
those of the men and used to justify their conduct . . . . The
asymmetry of positions must be considered. She was one
woman; they were many men.”253 In highlighting the unequal
power dynamic between Carr and her coworkers, Judge Posner
implicitly recognized the gendered norms of the maledominated workplace where the harassment had nothing to do
with Carr’s behavior and everything to do with her being a
woman who dared enter their shop.
Fitting in and being accepted by the group may be even
more important in particularly dangerous fields such as
249
Carr v. Allison Gas Turbine Div., 32 F.3d 1007 (7th Cir. 1994).
Id. at 1009-11.
251
Id. at 1010.
252
Id. at 1008.
253
Id. at 1011. See NUSSBAUM, supra note 127, at 104-11 (pointing out Judge
Posner’s “use of empathy in connection with judicious assessment”).
250
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firefighting, where mutual cooperation is key and where one
must be able to rely on one’s coworkers.254 But trying to fit in
should not require a woman to endure abusive working
conditions that are passed off as blue-collar norms.
Furthermore, a woman who attempts to work in an
intimidating environment should not be viewed as welcoming
the hostile behavior, thus preventing her from later asserting a
legitimate hostile environment harassment claim. On the other
hand, even a tradeswoman who tries to avoid or repel the
group’s practices may continue to be harassed. As Judge
Posner noted, a female welder at Carr’s workplace who
declined to take part in the crude behavior admitted that she
still had to fend off her domineering male coworkers with her
welding arc.255 She likely would still be targeted for harassment
because she would be viewed as “oversensitive” or not a group
player—someone not cut out for the trades.
In either scenario, a blue-collar woman can find herself
being subjected to a hostile environment because she reacts to
her environment in either a stereotypically masculine or
feminine manner. She finds herself in a catch-22 situation
regarding how to behave on the job. Courts would look more
favorably upon a plaintiff who avoided the vulgar behavior
altogether because her non-involvement avoids complicating
the unwelcomeness question, although courts have
nevertheless found that a plaintiff can be straight-laced or
oversensitive to her supervisor’s sexual comments.256 The
defense that the blue-collar plaintiff herself took part in the
uncouth behavior ignores the unequal relations between men
and women.257 Given our historical and social understanding of
gender relations and sexual violence, a man would feel less
threatened by a woman’s suggestive or harassing actions than
vice versa. As one scholar put it, “[a] woman firefighter might
be able to put up a photograph of a naked man, but she cannot
reproduce the social context that conveys to pornography the
power to intimidate.”258
Even for women who enter the trades because they are
attracted to this type of work, it is the work and not the
disrespectful environment accompanying it that draws them to
254
255
256
257
258
See CHETKOVICH, supra note 223.
Carr, 32 F.3d at 1011.
See, e.g., Fox v. Ravinia Club, Inc., 761 F. Supp. 797, 799 (N.D. Ga. 1991).
CHETKOVICH, supra note 223, at 80.
Id.
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the jobs. 259 Women who want to work in construction or
firefighting should not have to contend with offensive and
harmful comments on the job. If commonly-shared class norms
were truly driving the work culture, then women in blue-collar
jobs who belong to the same class (at least in terms of industry
position) as their male counterparts presumably would find the
work environment comfortable and appropriate, rather than
abusive and hostile. However, blue-collar women make more
than the occasional claim of hostile environment harassment
with respect to their blue-collar jobs,260 implying that male
domination, and not class difference, has significantly shaped
the work environment.
Blue-collar employees may engage in crude banter as a
form of workplace humor to break the monotony of work on the
shopfloor or to downplay the dangers or stresses involved in
risky blue-collar work.261 Cultural studies indicate that teasing
and practical joking can promote group cohesion in a job where
teamwork is crucial to successful job performance.262 In
addition, these studies suggest that humor can help diffuse
simmering hostility by allowing it to be channeled through a
sort of “‘safety-valve,’” in this way helping to maintain social
order at work.263
Nonetheless, men should not be allowed to “let off
steam” at work by engaging in coarse dialogue and actions that
women find abusive. Such a perspective would condone
behavior that sounds disturbingly similar to the verbal and
emotional abuse that occur in cases of domestic violence.264
Women, whether at work or at home, must not be expected to
tolerate the aggressive and abusive behavioral tendencies of
259
See generally Sylvia A. Law, “Girls Can’t Be Plumbers”—Affirmative Action
for Women in Construction: Beyond Goals and Quotas, 24 HARV. C.R.-C.L. L. REV. 45
(1989).
260
Juliano & Schwab, supra note 87, at 560-61, 565 (observing that the
majority of harassment plaintiffs were female and blue-collar or clerical, and the
majority of sex harassment cases involved hostile environment claims).
261
See CHETKOVICH, supra note 223, at 33-35; DAVID COLLINSON, MANAGING
THE SHOPFLOOR: SUBJECTIVITY, MASCULINITY, AND WORKPLACE CULTURE 105 (1992).
262
CHETKOVICH, supra note 223, at 33-35 (discussing how firefighters use
teasing, joking, and storytelling to entertain, release tension, and deal with the
demands of a hazardous job).
263
COLLINSON, supra note 261, at 105-06.
264
See Diane L. Rosenfeld, Why Doesn’t He Leave?: Restoring Liberty and
Equality to Battered Women, in DIRECTIONS IN SEXUAL HARASSMENT LAW 535, 536-37
(Catharine A. MacKinnon & Reva B. Siegel eds., 2004) (discussing “the penumbral area
of abuse [including domestic violence and sex harassment] that is legally prohibited
but widely understood to be unpoliced”).
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723
their partners or coworkers simply because men need to release
stress.
Notably, studies about the shopfloor also suggest that
male humor may actually heighten, rather than mitigate,
hostility between men and women in the blue-collar sector,
confining women to the role of “outsiders” to the group
masculine culture.265 This humor is used to trivialize the
harmful animosity truly at issue, so that women are accused of
“not getting the joke.”266 The fact remains that female
employees in the blue-collar workforce do not necessarily share
the masculine humor that dominates their workplaces,267 and
may often find the “humorous” practices more intimidating and
threatening than entertaining, thereby deriving no benefit
from such an atmosphere and instead suffering injury.268
Whether or not crude humor increases male productivity at
work, male-oriented jokes or comments that objectify and
malign women will likely cause female employees to become
less productive. This result then fails to promote the general
social order in the blue-collar workplace, and rather serves to
promote the masculine social order of the workplace. Within
this masculine realm, women then have to walk a fine line
between being likable and being distant because women cannot
engage in this type of teasing with men in the same manner
that men can joke with one another.269 A woman who teases
back can be perceived as someone who is “easygoing” or “can
take it,” thus possibly opening herself up to more extreme
behavior.270
Workplace humor, however, can still flourish without
causing workplace abuse if it incorporates the humor of
women. If women are to feel comfortable and encouraged to
enter highly masculine fields, they need some indication that
the workplace has improved in terms of work behavior and
culture. Many women who would otherwise enter maledominated trades decide not to do so because of the harassing
265
COLLINSON, supra note at 261, at 76-77.
See MACKINNON, supra note 6, at 52 (“Trivialization of sexual harassment
has been a major means through which its invisibility has been enforced. Humor,
which may reflect unconscious hostility, has been a major form of that trivialization.”).
267
See, e.g., Carr v. Allison Gas Turbine Div., 32 F.3d 1007, 1009-11 (7th Cir.
1994).
268
See West, supra note 173, at 81 (“[A] man may experience as at worst
offensive, and at best stimulating, that which a woman finds debilitating,
dehumanizing or even life-threatening.”).
269
See CHETKOVICH, supra note 223, at 78-79.
270
Id. at 79.
266
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behavior that permeates these workplaces.271 But this fact
should not suggest that women who do enter these fields
consent to being harassed. Rather, they may take the jobs
because they refuse to be deterred from doing the work they
want to do or because they cannot afford not to take the jobs.272
Poor women especially may seek to enter male-dominated
trades such as construction and precision repair because these
jobs offer higher economic rewards and good benefits.273 But
they should not have to pay such a high price for their
“choices.” Indeed, Title VII was enacted to enhance
employment opportunities for women and to break down the
long-existing barriers to economic entry and advancement.
VII.
CONCLUSION
Harassment is a murky phenomenon precisely because
it is diffuse and fluid, infecting one’s surroundings like bad air.
And like dirty air, harassment smothers those whom it
touches, harming their ability to thrive in the place from where
the harassment emanates. As the Fifth Circuit recognized in
Rogers v. EEOC, a hostile environment case involving race
discrimination, “[o]ne can readily envision working
environments so heavily polluted with discrimination as to
destroy completely the emotional and psychological stability of
minority group workers . . . .”274 Just as environmental law aims
to curb pollution, anti-harassment law must strive to curb
harassment. Title VII was intended to address the effects of
harassment and sex discrimination by striking at the core of
gender stereotypes and gender hostility. When considering
hostile environment harassment claims, courts need to re-think
workplace culture as not concerning job-specific culture, but
involving masculine culture traditionally associated with the
workplace. Only by recasting the discussion to focus on
masculine norms within the workplace can we return to the
271
See D’Vera Cohn & Barbara Vobejda, For Women, Uneven Strides in
Workplace; Census Data Reflect Decade of White-Collar Progress, Blue-Collar
Resistance, WASH. POST, Dec. 21, 1992, at A1 (stating that women may refrain from
becoming firefighters or construction workers because of “strong group cultures that
can encourage hostility and harassment from men”).
272
See Law, supra note 259, at 48.
273
See id.
274
Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971) (emphasis added).
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725
original understanding and purpose of sex harassment law
under Title VII: to help female workers achieve true equal
employment opportunity.
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Decretal Language
LAST WORDS OF AN APPELLATE OPINION
*
Jon O. Newman†
Two years ago, I prepared a memorandum for the judges
of the Second Circuit discussing various aspects of decretal
language and some of the choices available to judges in
wording the concluding sentence of their opinions. It has been
suggested that the discussion might be of use to other judges
and the bar, and I have therefore adapted the memorandum
into the following Article. 1. What is “decretal language”?
“Decretal language” is the portion of a court’s judgment or
order that officially states (“decrees”) what the court is
ordering. In a judgment or order, decretal language usually
begins with the formula “It is hereby ordered, adjudged, and
decreed that . . . .”
This Article will consider the portion of an appellate
court’s opinion, usually the concluding sentence, that states
what a court of appeals is ordering. The wording of such a portion should probably be called “opinion decretal language” to
distinguish it from “judgment decretal language,” but in this
article, such language will be called simply “decretal language.”
2. Clarity. The first rule is clarity. The decretal
language must tell the district judge what the appellate court
wants done. Phrases such as “judgment in accordance with
opinion” or “judgment in conformity with opinion” should be
avoided if practicable, although they are sometimes used,
especially where the opinion includes complicated language.1
*
†
1
© 2005 Judge Jon O. Newman. All Rights Reserved.
Judge of the United States Court of Appeals for the Second Circuit.
See, e.g., Playboy Enterprises, Inc., 53 F.3d 549, 565 (2d Cir. 1995)
727
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Similarly, lawyers would be well advised to tell appellate
courts precisely what relief they are seeking.
3. Consistency. The decretal language should be consistent throughout the opinion, i.e., in the “syllabus” that immediately follows the caption, in any summary of the disposition in
the opening paragraphs of the opinion, and in the “conclusion.”
There is no need, however, for the language of the syllabus or
the opening paragraphs to be as detailed as the language in the
conclusion. The conclusion is the place where the decretal language should be stated completely and with precision. For example, the syllabus might say only “Affirmed in part; reversed
in part and remanded.”
4. Affirmance. If a judgment is to be affirmed, the
decretal language of an appellate opinion need say only “The
judgment of the district court is affirmed.”
5. Vacatur or Reversal. If a judgment is to be undone, at
least in some respect, there is a difference of opinion among
judges as to the circumstances in which “vacated” or “reversed”
should be used in decretal language. However, in three
circumstances, there is virtual unanimity as to which of these
verbs should be used:
(a) If the appellate ruling orders the complete opposite of
what the district court has ruled, e.g., the district court has
entered judgment for the plaintiff (for example, on a motion for
summary judgment) and the court of appeals orders entry of
judgment for the defendant (for example, a Rule 12(b)(6)
dismissal for failure to state a claim), the decretal language
should include the word “reversed.” An appropriate form would
be “The judgment of the district court is reversed, and the case
[or the appeal or the cause] is remanded with directions to
enter judgment for the defendant.”
(b) If the appellate ruling rejects interim relief ordered
by the district court (for example, a preliminary injunction), the
decretal language should include the word “vacated.” An
appropriate form would be “The order of the district court
issuing a preliminary injunction is vacated” or sometimes just
“The injunction issued by the district court is vacated.”
(c) If the appellate ruling rejects a sentence imposed by
the district court and the appellate court chooses to undo the
(“Judgment in accordance with opinion.”); Hight v. United States, 256 F.2d 795, 802
(2d Cir. 1958) (“[J]udgment in conformity with this opinion.”).
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sentence, rather than order the district court to undo it,2 the
decretal language should include the word “vacated.”3 An
appropriate form would be “The sentence is vacated, and the
case is remanded for resentencing consistent with this
opinion.”
In the many circumstances where an appellate court
rejects a final judgment of a district court but does not order
the complete opposite of what the district court has done (i.e.,
does not direct judgment for the appellant), the practices of
appellate judges vary as to whether the decretal language
should include the word “vacated” or “reversed.” Some judges
believe that “reversed” should never be used unless the
appellate court directs the complete opposite of what the
district court has ordered. For these judges, whenever the
appellate ruling is in favor of the appellant but orders anything
less than the complete opposite of what the district court has
ruled (for example, the district court has entered summary
judgment for the plaintiff and the court of appeals rules that a
factual issue exists that requires a trial), the decretal language
will include the word “vacated.” An appropriate form would be
“The judgment of the district court is vacated, and the case [or
the appeal or the cause] is remanded for trial [or for further
proceedings].” Even these judges, however, will frequently say
that they are “reversing” the ruling that grants summary
judgment for the plaintiff, but are “vacating” the judgment that
was entered based on that ruling.
Other judges believe that “reversed” is appropriate
whenever the appellate court, on an appeal from a final
judgment, rules in favor of the appellant, even though the
appellant does not win the complete opposite of the district
court’s ruling. For these judges, an appropriate form in the
example just given would be “The judgment of the district court
is reversed, and the case [or the appeal or the cause] is
remanded for trial [or for further proceedings].”
There is very little case law on the issue of “reversed”
versus “vacated.” In Mickens v. Taylor4 Justice Scalia’s opinion
for the Supreme Court emphasized that a prior ruling of the
Court in Wood v. Georgia5 had only “vacated” the judgment of
2
3
4
5
See para. 7, infra.
But see para. 8, infra.
535 U.S. 162 (2002).
450 U.S. 261 (1981).
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the lower court and had remanded for further proceedings (an
inquiry concerning an allegedly conflicted counsel), rather than
“reversed” and overturned a conviction.6 The implication of
Justice Scalia’s language is that “reversed” would have been
appropriate if the prior ruling had overturned the conviction,
but it should be noted that such a ruling would only have
required a new trial, not a final judgment in favor of the
defendant.
The Supreme Court has frequently used “reversed” in
the decretal language of an opinion, even though the opinion
did not direct entry of judgment for the appellant.7
I have not found a decision that attached any
significance to the use of “reversed,” rather than “vacated,”
where the appellant prevailed on the issues raised on appeal
but did not win a district court judgment in its favor.
In Dart v. United States8 the District of Columbia
Circuit held that statutory language authorizing the Secretary
of Commerce to “vacate or modify” the decisions of
administrative law judges did not empower the Secretary to
reverse such decisions, and that where an ALJ had decided not
to award sanctions, the Secretary’s order that the judgment be
modified so as to award sanctions constituted an impermissible
reversal of the ALJ’s decision.9
In Kelso v. U.S. Department of State10 the district court
offered the following explanation: “Although the word reverse
shares vacate’s meanings of to annul and to set aside, it has an
additional, more extensive definition: ‘To reverse a judgment
means to overthrow it by contrary decision, make it void, undo
or annul it for error.’”11
6. Affirmed or reversed (or vacated) in part. Whenever
an appellate decision affirms part of a district court’s ruling
and reverses (or vacates) part of that ruling, the decretal
language should specify which parts are affirmed and which
parts are reversed [or vacated]. “Affirmed in part and reversed
in part” is not sufficient in the decretal language (although it
6
Mickens, 535 U.S. at 172 n.3.
See, e.g., Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 509
(2001) (remand for reconsideration of res judicata defense under applicable state law
standard); Cent. Green Co. v. United States, 531 U.S. 425, 437 (2001) (remand for
reconsideration of immunity defense under proper standard).
8
848 F.2d 217 (D.C. Cir. 1988).
9
Id. at 227-31.
10
13 F. Supp. 2d 12 (D.D.C. 1998).
11
Id. at 18 (citations omitted).
7
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will do in the “syllabus,” the short explanation of the nature of
the appeal and the disposition that appears in the slip opinion
just below the caption).
7. Remands. In every instance where an appellate court
reverses or vacates (either in whole or in part), the decretal
language should include language that remands the case to the
district court (although the absence of the word “remand” in a
judgment that “reverses” has been held not to deprive the
district court of jurisdiction to act),12. The remand language
should tell the district judge what is to be done. Usually, some
precise task will be identified, e.g., “remanded for further
findings,” “remanded with directions to grant leave to amend
the complaint,” or “remanded for trial.” When an appellate
court reverses (or vacates) a grant of summary judgment, the
remand sometimes directs a trial, but in some circumstances
the appellate court simply wants to permit more discovery with
the possibility of a renewed motion for summary judgment, in
which event the remand directs “further proceedings.”
Two forms of catch-all remands have also been used:
“remanded for further proceedings not inconsistent with this
opinion”13 and “remanded for further proceedings consistent
with this opinion.”14 I have seen no case law that attached a
consequence to the choice between these two catch-all
formulations. Some judges believe that the “consistent with”
formulation is a somewhat more confining direction to the
district judge. The Supreme Court has used both formulations.15
The “consistent with” and “not inconsistent with”
formulations appear to have come into use in an earlier era
before the adoption of the Federal Rules of Appellate
Procedure, which now provide that the mandate of the Court of
Appeals includes the opinion, as well as the judgment.16 In Gulf
Refining Co, v. U.S.,17 before the adoption of Rule 41, the
Supreme Court ruled that “the direction to proceed consistently
with the opinion of the court has the effect of making the
12
See Exxon Chemical Patents, Inc. v. Lubrizol Corp., 137 F.3d 1475, 148384 (Fed. Cir. 1998))
13
E.g., Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2004) (footnote omitted).
14
E.g., Weiler v. Chatham Forest Products, Inc., 370 F.3d 339, 346 (2d Cir.
2004).
15
See, e.g., Atkins v. Virginia, 536 U.S. 304, 321 (2002) (“not inconsistent
with”); Christopher v. Harbury, 536 U.S. 403, 422 (2002) (“consistent with”).
16
See FED. R. APP. P. 41.
17
269 U.S. 125 (1925).
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opinion a part of the mandate, as though it had been therein
set out at length.”18
8. Sentences. When an appellate ruling rejects some
aspect of a district judge’s sentence, an issue arises as to
whether the order vacating the sentence should be entered by
the appellate court or the district court. If the appellate court
vacates the sentence, there is then no sentence, and
circumstances might arise where the appellate court would not
wish to leave the defendant unsentenced in the interim before
resentencing occurs. In such circumstances, it is sometimes
preferable for the appellate court not to vacate the sentence but
simply to remand to the district court with instructions
concerning the sentence; that way, the sentence remains in
place until changed by the district court. In altering a sentence,
an appellate court should consider whether it wants to alter
one part of the sentence and leave the remainder in place, or
alter one part and grant the district judge discretion to reshape
the entire sentence de novo.19
9. Modification. Sometimes an appellate ruling effects a
change in a district court ruling without either vacating or
reversing. Instead, the appellate ruling “modifies” the appealed
judgment. For example, an appellate change in the wording of
an injunction might say “The order of the District Court issuing
the injunction is modified by deleting paragraph 7, and as
modified the order is affirmed.”20
10. Dismissal. If a court of appeals does not have
appellate jurisdiction over the appeal, the appeal should be
dismissed. “Dismissed” is the appropriate word in decretal
language when an appeal is dismissed as untimely, or because
the judgment or order appealed from is not final and no basis
exists for appeal from a non-final order. Other circumstances
where an appeal should be dismissed are unsuccessful
attempts to obtain review of orders denying judgment for a
defendant on the basis of qualified immunity,21 or unsuccessful
attempts to obtain review of a sentencing judge’s discretionary
18
Id. at 135. See also U.S. v. Pan-American Petroleum Co., 24 F.2d 206, 207
(S.D. Cal. 1927) (same).
19
See United States v. Quintieri, 306 F.3d 1217 (2d Cir. 2002).
20
See, e.g., Guzman v. Bevona, 90 F.3d 641, 650 (2d Cir. 1996); United States
v. City of Yonkers, 856 F.2d 444, 460 (2d Cir. 1988).
21
E.g., Locurto v. Safir, 264 F.3d 154, 170 (2d Cir. 2001).
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DECRETAL LANGUAGE
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decision not to depart from an applicable Sentencing
Guidelines range.22
11. “Appeal” versus “review.” In the course of framing
decretal language, courts should distinguish between the terms
“appeal” and “review.” “Appeal” is the proper term for referring
to the process by which an appellate court exercises its
jurisdiction over an appealable judgment or order; “review” is
the proper term for referring to the action of an appellate court
in considering an issue or ruling comprehended within an
appeal. For example, on an appeal from a judgment in favor of
a defendant after a jury verdict, the plaintiff-appellant might
contend that the district court erred in denying its motion to
amend the complaint. In such circumstances, it would be
incorrect for the decretal language to say, after affirming the
judgment, “And we also affirm on the appeal from the denial of
the plaintiff’s motion to amend the complaint.” There is no
“appeal” from the ruling denying the motion to amend. The
“appeal” is from the final judgment, and on that appeal, the
court of appeals “reviews” the denial of the motion to amend.
Thus, appropriate language would be “And on review of the
ruling denying the plaintiff’s motion to amend the complaint,
we affirm” or, more simply, “And we affirm the denial of the
plaintiff’s motion to amend the complaint.”
12. Identifying the district court ruling. Whatever the
appellate disposition, the decretal language should be careful
to refer correctly to the nature of the district court ruling, i.e.,
whether it is a “judgment” or an “order.” And when referring to
a district court’s judgment or order by its date, the operative
date is the date on which the judgment or order was entered on
the docket of the district court, not the date when the district
judge signed the opinion or the date when the clerk filed the
judgment.23 The date that the judgment or order was entered
can be ascertained from the district court’s docket entries.24
13. Review of agency rulings. On applications to review
administrative agencies like the National Labor Relations
Board, which come to a court of appeals on a “petition for
review” or the Board’s “petition to enforce,” the decretal
language is either “petition to review granted, and the order of
the Board is vacated [sometimes with a remand]” or “petition
22
E.g., United States v. Aponte, 235 F.3d 802, 803 (2d Cir. 2000).
See FED. R. APP. P. 4(a)(1)(A).
24
See Houston v. Greiner, 174 F.3d 287 (2d Cir. 1999) (discussing form of
docket entries).
23
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for review denied” or “petition for enforcement granted” or
“petition for enforcement denied.”
14. Motions. For disposition of motions, the decretal
language, entered on the motion itself, is usually just “motion
granted” or “motion denied.”
15. Returning a case to the same panel. Sometimes the
panel deciding an appeal wants a subsequent appeal in the
litigation assigned to it. The most common circumstance is
where the panel has remanded for a finding. Having invested
time considering the issues in the appeal, the panel will
normally want the case returned to it after the needed finding
has been made. Sometimes the panel wants a subsequent
appeal in the litigation to come before it, regardless of what
prompted the remand.
The language used to accomplish a return of the case to
the panel deciding the initial appeal should be carefully
considered. Some panels have been using formulas such as
“This panel will retain jurisdiction,”25 “Jurisdiction will be
retained by this panel,”26 or simply “Jurisdiction is retained.”27
These formulations should be avoided. They are jurisdictionally
incorrect. A court of appeals cannot simultaneously “retain”
jurisdiction and send the case back to a district court for some
further action. Whenever the panel wants a district court to
take any further action in the case, jurisdiction must be
restored to the district court. This occurs by means of the
issuance of a mandate by the court of appeals. The “retain”
wording is a euphemism that really means “This panel will
reacquire jurisdiction after the required action has been taken.”
Bringing a case back to the original panel can be
accomplished in either of two ways:
(a) If the panel remands for a specific task such as a
finding, the usual technique is to “vacate and remand” and add
something like “After the district court has made the finding
required by this opinion, jurisdiction will automatically be
restored to this Court without the need for an additional notice
of appeal; the returned appeal will be assigned to this panel.”
or “After the district court has made the required finding,
either party may restore jurisdiction to this Court by notifying
the Clerk of this Court by letter that the finding has been
25
26
27
E.g., United States v. Eng, 971 F.2d 854, 864 (2d Cir. 1992).
E.g., Cardillo v. United States, 767 F.2d 33, 35 (2d Cir. 1985).
E.g., Abrams v. Fed. Deposit Ins. Corp., 938 F.2d 22, 26 (2d Cir. 1991).
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made, and the returned appeal will be assigned to this panel.
An additional notice of appeal will not be needed.” In the
Second Circuit, this technique is known as a Jacobson
remand28. It is used when the case is almost certainly going to
return, and there is no need for a second notice of appeal
(which, in addition to requiring an additional docketing fee,
risks confusion in the clerk’s office because there will then be
two docket numbers for what is really the same appeal; every
notice of appeal precipitates a new docket number). However
worded, a Jacobson remand should specify the procedure for
returning the case to the jurisdiction of the court of appeals. It
is often useful to add something like “If any circumstances
obviate the need for the case to return to the court of appeals,
the parties shall promptly notify the Clerk of this Court.”
(b) If the panel remands for some more general purpose,
such as a retrial, but wants a subsequent appeal, if it occurs,
assigned to it, the appropriate language, in addition to “vacated
and remanded for a new trial” is something like “In the event of
a subsequent appeal, the matter will be assigned to this panel.”
In the Second Circuit, if no direction concerning
assignment to the original panel is stated and an appeal is
taken that relates to a prior appeal, the clerk’s office will assign
the appeal to the next panel that includes one judge of the
Second Circuit who was a member of the prior panel.
16. Costs. It is usually helpful to make a decision as to
appellate costs at the time an opinion is filed. FRAP 39(a)
provides that, unless the court otherwise directs, if the
judgment or order is affirmed, the appellee recovers its costs; if
the judgment or order is reversed, the appellant recovers its
costs; if there is a mixed outcome, e.g., “affirmed in part and
vacated in part,” or if the judgment is vacated or modified,
neither party is awarded costs. It should be noted that use of
the word “vacated” without any direction for costs has the
effect of denying costs. All of these costs outcomes can be
altered by direction of the court of appeals.
If nothing is said about costs in the decretal language,
the panel will usually be burdened by a motion from one side or
the other (or both) to award costs or to disallow costs. It is
simpler to take care of the matter in the original opinion. If the
opinion directs a mixed outcome, appellate costs can be
apportioned, e.g., “The appellant may recover 2/3 of its costs.”
28
See United States v. Jacobson, 15 F.3d 19, 21-23 (2d Cir. 1994)
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Sometimes a panel will disallow costs even though the
prevailing party is normally entitled to them. This has
happened, for example, when an impoverished appellant with a
non-frivolous claim loses to a large corporation. In that
circumstance, the decretal language sometimes says “No costs.”
The fact that a party has been permitted to appeal in
forma pauperis does not exempt it from appellate costs; in
forma pauperis status exempts a party only from the obligation
to prepay required fees.29
17. Sanctions for frivolous appeal. If an appeal is
deemed frivolous, an appellate court may award damages
(usually, attorney’s fees) plus double costs.30 Unless the
appellee asks for such sanctions and thereby gives the
appellant notice, the court of appeals may not summarily
impose sanctions, but must first issue an order requiring the
appellant to show cause why sanctions for a frivolous appeal
should not be imposed.31
18. Issuance of mandate. Sometimes decretal language
specifies the date when the mandate will issue. The mandate is
the formal document that transmits the disposition by the
court of appeals to the district court. It consists of the court of
appeals opinion, a certified copy of the judgment (the judgment
is prepared by the clerk’s office), and any direction as to costs.32
In the absence of any contrary direction, the mandate issues 7
days after the time to file a petition for rehearing (14 days)
expires (i.e., 21 days after entry of the judgment of the court of
appeals), or 7 days after entry of an order denying a timely
petition for rehearing or motion to stay the mandate,
whichever is later.33 A timely petition for rehearing
automatically stays issuance of the mandate until the petition
is adjudicated.34
In some cases a panel wants its ruling to take effect
immediately. The decretal language should add “The mandate
shall issue forthwith.” This language, however, does not make
the appellate ruling effective on the date that the opinion is
filed. The effective date is the date when the mandate is
29
30
31
32
33
34
See 28 U.S.C. § 1915(a)(1) (2000); FED. R. APP. P. 24(a)(2).
See FED. R. APP. P. 38.
See DeLuca v. Long Island Lighting Co., 862 F.2d 427, 430 (2d Cir. 1988).
See FED. R. APP. P. 41(a).
See FED. R. APP. P. 41(b).
See FED. R. APP. P. 41(d)(1).
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issued,35 even if the mandate is not received by the district
court on that date. If a court of appeals wants its ruling to
become effective on the date the opinion is filed, it should make
sure that the clerk of the court issues the mandate that day.
In some cases the panel wants to have the mandate
delayed, usually to permit the losing party to have extra time
to seek a stay from the Supreme Court.36
19. Altering a Court of Appeals opinion. On occasion, a
court of appeals makes some change in its own prior ruling. In
the Second Circuit, this can be accomplished in one of four
ways: (a) if a minor wording change is to be made, the author of
the opinion files an “errata sheet” (on a prescribed form)
correcting the slip opinion; (b) if a more extensive change is to
be made, the panel files an unpublished order directing the
change; (c) if a change is to be made that the panel wants
published in the Federal Reporter, a brief opinion making the
change is filed, (d) if extensive changes are to be made, the
panel files an amended opinion, in which event a new slip
opinion is printed. Whenever any changes are made, a revised
disk containing the opinion as corrected is sent to the clerk’s
office so that a corrected version of the opinion will be placed on
line. If a change is to be made after the mandate has issued,
the amending order must recite that the mandate is being
recalled.
*****
The foregoing describes practices in the Second Circuit.
Variations undoubtedly occur in the other circuits. Although
this Article will not end with any decretal language, it is my
hope that the discussion of decretal language will be useful to
the bench and the bar.
35
See United States v. DiLapi, 651 F.2d 140, 144 n.3 (2d Cir. 1981), cert.
denied, 455 U.S. 938 (1982).
36
See, e.g., Mohammed v. Reno, 309 F.3d 95, 103 (2d Cir. 2002).
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The Biter Bit
*
UNKNOWABLE DANGERS, THE THIRD
RESTATEMENT, AND THE REINSTATEMENT OF
LIABILITY WITHOUT FAULT
†
Ellen Wertheimer‡
INTRODUCTION
Strict products liability developed out of a perceived
need to protect consumers from the costs engendered by
defective products. The basic idea was that manufacturers
should be liable for the injuries caused by their defective
products even—maybe especially—in the absence of
manufacturer negligence. Indeed, if it were sufficient for
liability to result only for negligent design, failure to warn, or
mismanufacture, there would have been no need for a new
theory of liability, because negligence-based liability would
have provided adequate consumer protection. It was widely
recognized, however, that negligence-based liability was not
enough, and that manufacturers should be responsible for
injuries caused by the products they designed, labeled,
marketed, and sold, even if their conduct had been reasonable.
*
“The Biter Bit” is an ironic short story by Wilkie Collins. In this story, a
young police officer (the Biter of the title) is himself bitten by his wish to show up the
old guard police force. The analogy here, of course, is that those who would have
eradicated strict products liability in the Third Restatement may well have caused its
rejuvenation, as this article discusses. See Wilkie Collins, The Biter Bit in WILKIE
COLLINS, TALES OF TERROR AND THE SUPERNATURAL 268-94 (1972).
†
© 2005 Ellen Wertheimer. All Rights Reserved.
‡
Professor of Law, Villanova University School of Law. I want to thank
Christine Andreoli and Joseph Larkin, my research assistants, and Nazareth
Pantoloni, librarian extraordinaire, for their help in writing this article. I am also
grateful to Mark Rahdert for his suggestions.
889
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The costs of such injuries had to fall somewhere, and, as
between an innocent plaintiff and an innocent manufacturer,
the courts chose the manufacturer. In order to accomplish this,
the courts needed a new theory of liability, one that went
beyond negligence. When the new theory was codified in the
form of § 402A of the Second Restatement of Torts,1 the courts
enthusiastically and almost uniformly adopted it as the law of
their jurisdictions.2 Under strict products liability theory, and
under § 402A, manufacturers would be liable for their defective
products even if the manufacturers had exercised all due care
in the design and manufacturing process.
1
(1)
(2)
RESTATEMENT (SECOND) OF TORTS § 402A (1965) provides:
One who sells any property in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to
liability for physical harm thereby caused to the ultimate user or
consumer . . .
The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and
sale of his product . . . .
Id.
2
As the court pointed out in Berman v. Watergate West, Inc., 391 A.2d 1351,
1356 (D.C. Cir. 1978):
Subsequent to the decision in Greenman v. Yuba Power Products, Inc. and the
promulgation of § 402A of the Restatement, the concept of strict liability in
tort spread rapidly. At the date of this writing, the CCH Products Liability
Reporter lists 45 states as having adopted the concept. One other state and
the District of Columbia are cautiously placed on this list with a footnote
reading “inferred by court decision.”
Id. (footnotes omitted); Brandenburger v. Toyota Motor Sales, U.S.A., 513 P.2d 268,
272 (Mont. 1973) (“The trend seems to be to adopt the theory of strict liability as it has
now been adopted by a majority of the states. . . . We adopt the definition, as other
jurisdictions have, set forth in 2 Restatement of Torts 2d § 402A . . . .”); Turner v.
Hudson, 1986 Me. Super. LEXIS 278, at *5 (Me. Dec. 12, 1986) (“In almost every other
jurisdiction, strict liability is common law doctrine. The highest courts of other states
have simply ‘adopted’ § 402A of the Restatement (Second) of Torts.”); Phipps v. Gen.
Motors Corp., 363 A.2d 955, 963 (Md. 1976) (“Almost all of the courts of our sister
states have adopted the strict liability principles set forth in § 402A of the Restatement
(Second) of Torts. Several reasons for adopting strict liability are summarized . . . We
find the above reasons persuasive. . . . Therefore, we adopt the theory of strict liability
as expressed in § 402A of the Restatement (Second) of Torts.”). As the court stated in
Greeno v. Clark Equip. Co., 237 F. Supp. 427, 432-33 (N.D. Ind. 1965):
The direction of the law is clear. Again drawing on the language of and
authorities cited by Judge Wisdom in Putman, we find that “Part of the
impetus has come from an almost unanimous call from the authorities in the
field of torts.” If the Restatement correctly states the conditions of recovery
now in practice, let those elements have a fresh name. . . . The question is
now squarely before this court and must be decided. It is perhaps fortuitous
that the Indiana Supreme Court has not yet passed on this issue, but
doubtlessly that forward-looking court would embrace the Restatement
(Second), Torts §402A, and the many recent cases and authors who have done
likewise, as eminently just and as the law of Indiana today.
Id. (internal citations omitted).
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There were three types of defect. Products could be
defective in design, in warning, or in manufacture. All three
types of defect were covered under § 402A by a single rule of
strict liability. Of the three, the last, mismanufactured
products, need not detain us here: manufacturers have for
many decades been liable for mismanufactured products under
a theory of res ipsa loquitur.3 This basis for liability seamlessly
became the mismanufacture doctrine of 402A, and has caused
neither courts nor manufacturers any qualms.
Strict liability for design defects and failure to warn,
however, began causing courts problems as soon as § 402A was
adopted. Most jurisdictions had never imposed liability without
fault in such a broad spectrum of cases, although liability
without fault was not unknown, even in tort cases, where res
ipsa loquitur had come to function as a form of liability without
fault. In Escola v. Coca Cola Bottling Co., for example, the
defendant manufacturer presented “pretty near infallible”
evidence that it had acted as a reasonable manufacturer in the
bottle-filling and inspection processes,4 but no one was
interested because the bottle exploded.5 It is more than possible
that Coca-Cola was not, in fact, negligent.6 In fact, the plaintiff
3
Escola v. Coca Cola Bottling Co., 150 P.2d 436 (Cal. 1944) (exploding soda
bottle).
4
Id. at 440.
Id. at 439-40:
[T]he evidence appears sufficient to support a reasonable inference that the
bottle here involved was not damaged by any extraneous force after delivery
to the restaurant by defendant. It follows, therefore, that the bottle was in
some matter defective at the time defendant relinquished control, because
sound and properly prepared bottles of carbonated liquids do not ordinarily
explode when carefully handled. . . . Under the general rules pertaining to
the doctrine, . . . it must appear that bottles of carbonated liquid are not
ordinarily defective without negligence by the bottling company. . . . Although
it is not clear in this case whether the explosion was caused by an excessive
charge or a defect in the glass, there is a sufficient showing that neither
cause would ordinarily have been present if due care had been used.
Id. See also Rizzo v. Corning, Inc., 105 F.3d 338, 343 (7th Cir. 1997) (“A carafe designed
to be used for years, not months, breaks in half without being dropped or banged or
cleaned with abrasive cleaners or damaged in a flood or fire. In these unusual
circumstances the accident itself is sufficient evidence of a defect to permit, though of
course not compel, the jury to infer a defect.”); Jenkins v. Whittaker Corp., 785 F.2d
720, 733 (9th Cir. 1986) (“Under Hawaii law, application of res ipsa loquitur raises no
presumption of negligence. The doctrine merely establishes a prima facie case of
negligence; it allows the case to go to the jury.”); Higgins v. Gen. Motors Corp., 699
S.W.2d 741, 743 (Ark. 1985) (“Strictly speaking, since proof of negligence is not in
issue, res ipsa loquitur has no application to strict liability; but the inferences which
are the core of the doctrine remain, and are no less applicable.”).
6
As the court pointed out:
5
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admitted that she could not prove negligence on the part of the
defendant.7 The court was not concerned.
Unlike mismanufacture cases, however, failure to warn
and design defect cases presented problems for courts
accustomed to negligence-based liability. In design and failure
to warn cases, courts found it difficult to develop standards
that would differentiate strict liability from negligence,
simplify the plaintiffs’ burden of proof, yet stop short of
imposing absolute liability on manufacturers for all productrelated injuries. Negligence had proven inadequate in
providing the level of consumer protection that courts felt was
necessary in the modern era, and plaintiffs’ resources were
viewed as similarly inadequate to compete with the resources
available to manufacturers. But no one felt that all injuries
should be compensated, just those caused by defective
products.8
Two types of defect—in design and in warning—are the
focus of this analysis. The thesis of this article is that courts,
initially enthusiastic about strict products liability, gradually
retreated from their own standards for imposing liability until,
in many jurisdictions, strict products liability ceased to exist.
The Third Restatement of Products Liability, ostensibly
codifying this incremental retreat into black-letter law,
eliminated any strictness from products liability and
transformed it back into a negligence-based doctrine. Some
courts, however, forced to confront the Third Restatement=s
clear recognition of the doctrine’s collapse, subsequently
remembered why they had adopted strict products liability in
the first place and returned to the doctrine. The very
codification of what had been an incremental process forced
It is true that defendant presented evidence tending to show that it exercised
considerable precaution by carefully regulating and checking the pressure in
the bottles and by making visual inspections for defects in the glass at
several stages during the bottling process. It is well settled, however, that
when a defendant produces evidence to rebut the inference of negligence
which arises upon application of the doctrine of res ipsa loquitur, it is
ordinarily a question of fact for the jury to determine whether the inference
has been dispelled.
Escola, 150 P.2d at 440.
7
Id. at 438 (“Plaintiff then rested her case, having announced to the court
that being unable to show any specific acts of negligence she relied completely on the
doctrine of res ipsa loquitur.”).
8
See Phillips v. Kimwood Mach. Co., 525 P.2d 1033, 1036 (Or. 1974) (en
banc) (“No one wants absolute liability where all the article has to do is cause injury.”).
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893
courts fully to confront the implications of such process, and
they did not like what they saw.
Part I of this article outlines the definitions of defect, in
which the seeds of the retreat from strict products liability
were planted. While the definitions of defect have been
discussed on numerous occasions, both in cases9 and in legal
literature,10 the discussion in this article will focus on the three
problem points of unknowable dangers, consumer expectation
and reasonable alternative designs. Part II discusses the
incremental erosion of strict products liability for unknowable
dangers, and the turn away from the consumer expectation
test. Part III discusses the legal climate prior to the writing of
the Third Restatement, including the advent of negligencebased defenses to strict products liability and the concomitant
breakdown in the doctrine’s conceptual framework. Part IV
analyzes the codification of a negligence standard for strict
liability as set forth by the Third Restatement. The article then
documents the subsequent judicial trend toward returning to
the pro-consumer policies of origin, arguing that the Third
Restatement, by its very rejection of strict products liability,
forced courts to confront the logical end result of their own
incremental rejection of the doctrine. Several courts, when so
confronted, have elected to reinstate strict products liability
rather than preside over its demise.
I.
THE EARLY DAYS OF DEFINING DEFECT: EASY CASES
MAKE PROBLEMATIC LAW
Once courts decided that strict products liability was a
good idea, they set about defining its scope. Everyone agreed
that manufacturers should not be liable for all injuries caused
9
See Anderson v. Owens-Corning Fiberglas Corp., 810 P.2d 549, 553 (Cal.
1991); Brown v. Super. Ct., 751 P.2d 470, 474-75, 477 (Cal. 1988); Barker v. Lull Eng’g
Co., 573 P.2d 443, 446 (Cal. 1978); Feldman v. Lederle Labs., 479 A.2d 374, 384-85
(N.J. 1984); Beshada v. Johns-Manville Prods. Corp., 447 A.2d 539, 544 (N.J. 1982);
Phillips v. Kimwood Mach. Co., 525 P.2d 1033, 1036 (Or. 1974).
10
See Sheila L. Birnbaum, Unmasking the Test for Design Defect: From
Negligence [to Warranty] to Strict Liability to Negligence, 33 VAND. L. REV. 593, 602
(1980) (discussing the problems engendered by imprecise judicial analysis of the notion
of design defect); James A. Henderson, Jr., Coping with the Time Dimension in
Products Liability, 69 CAL. L. REV. 919, 920 (1981) (concluding that judicial reliance on
hindsight by applying knowledge and attitudes prevailing at the time of trial in
assessing defect is unwarranted); Frank J. Vandall, “Design Defect” in Products
Liability: Rethinking Negligence and Strict Liability, 43 OHIO ST. L.J. 61 (1982)
(examining the origins of the Restatement’s definition of defect and proposing a
functional defect test).
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by their dangerous products; they should only be liable for
injuries caused by their defective products.11 Thus, dangerous
products fell into two categories: dangerous and defective
products, and dangerous and non-defective ones. Into the latter
group would fall reasonably dangerous products like knives,
ladders,
and
automobiles,
and
certain
prescription
pharmaceuticals like vaccines. Into the former would fall
unreasonably dangerous products, products that fit the
definition of defective.
The first step in developing strict products liability
doctrine was thus to define defect. Not all dangerous products
would be considered defective; strict liability was never
intended to be absolute.12 Unlike defectiveness, dangerousness
is a factual attribute. Defectiveness, on the other hand, is a
legal one. Indeed, the difference between dangerous products
and defective products resembles the difference between
factual causation and proximate causation. Factual causation
is, as its name suggests, a finding that the defendant actually
caused the plaintiff’s injury. Proximate causation, on the other
hand, represents a legal conclusion that the defendant should
be liable for the injury. Causation may be factual without being
proximate: the defendant may have caused the plaintiff’s injury
11
Kaiser Aluminum & Chem. Corp. v. Westinghouse Elec. Corp., 981 F.2d
136, 144 (4th Cir. 1992). While discussing definitions of defect with regard to the
doctrine of strict liability in tort, the court states:
What is common to all these definitions is the idea that “defect” in the strict
liability context is not synonymous with ineffectiveness or “ordinary”
malfunction; the “defect” must be one that is unreasonably unsafe for the
intended use of the product. It is the safety and dangerousness of the defect
that is the essential element of the doctrine.
Id.; McCarthy v. Olin Corp., 119 F.3d 148, 171 (2d Cir. 1997) (“In order for strict
products liability to apply, there must be a defect, i.e., something wrong with the
product . . . .”); Morningstar v. Black & Decker Mfg. Co., 253 S.E.2d 666, 677 (W. Va.
1979) (quoting Dippel v. Sciano, 37 Wis. 2d 443 (Wis. 1967), in which the court held
that strict liability does not mean that the manufacturer has become the insurer of its
product nor does it result in absolute liability); Thibault v. Sears, Roebuck & Co., 395
A.2d 843 (N.H. 1978); Baughn v. Honda Motor Co., 727 P.2d 655, 660 (Wash. 1986)
(“Most jurisdictions that employ the risk-utility approach require that there be
something wrong with the product before a risk-utility analysis is permitted.”).
12
The court in Phipps v. Gen. Motors Corp., 363 A.2d 955, 963 (Md. 1976)
pointed out that:
Thus, the theory of strict liability is not a radical departure from traditional
tort concepts. Despite the use of the term “strict liability” the seller is not an
insurer, as absolute liability is not imposed on the seller for any injury
resulting from the use of his product. Proof of a defect in the product at the
time it leaves the control of the seller implies fault on the part of the seller
sufficient to justify imposing liability for injuries caused by the product.
Id. (internal citations omitted).
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895
but not be legally responsible for it.13 Similarly, while all injurycausing products are dangerous in the factual sense,
defectiveness is a legal conclusion that the manufacturer is
responsible for the injury.
In order to limit the scope of dangerous products for
which manufacturers would be liable,14 courts needed to define
defect, and reached various conclusions as to what should
constitute a defective product. The definitions uniformly
focused on the product and not on the manufacturer’s conduct.
As one court observed:
A negligence action focuses on conduct, specifically the quality of the
act causing the injury; a strict products liability action focuses on the
product itself. . . . The rise of strict liability in products liability
actions results from the perception that the manufacturing
enterprise can best carry the cost of injuries occasioned by defective
products as an element of product cost.15
But courts still needed to specify what characteristics of
a dangerous product made it defective. The major tests for
defect that emerged included the imputation of knowledge
test,16 the risk-utility test,17 and the consumer expectation test.18
Sometimes the courts used one of these tests exclusively;
sometimes they used them in combination.19
Under the imputation of knowledge test, a
manufacturer would be liable for the injuries caused by a
product if a reasonable manufacturer, irrebutably presumed to
13
In the famous case of Overseas Tankship (U.K.) Ltd. v. Morts Dock &
Engineering Co., [1961] App. Cas. 388 (P.C. 1961) (The Wagon Mound No. 1), it was
indisputable that the defendant had caused the fire by spilling oil on the surface of the
water. Without the oil, there would have been no material for the plaintiff’s workers to
ignite. The defendant was not liable to the plaintiff in this case, however, because the
oil was not the proximate cause of the damage.
14
The court in Barker v. Lull Engineering Co., 573 P.2d 443, 446-47 (Cal.
1978), reflected on the necessity for defining defect.
15
Lewis v. Timco, Inc., 716 F.2d 1425, 1434 (5th Cir. 1983) (footnote
omitted).
16
Phillips v. Kimwood Mach. Co., 525 P.2d 1033, 1036 (Or. 1974).
17
Sperry-New Holland v. Prestage, 617 So. 2d 248, 254-55 (Miss. 1993),
superceded by Wolf v. Stanley Works, 757 So. 2d 316, 321 (Miss. Ct. App. 2000) (noting
that the risk-utility test “has probably been replaced by the statutory command that
there is no liability unless the product ‘failed to perform as expected’”) (citing MISS.
CODE ANN. § 11-1-63(f)(ii) (2004)).
18
Barker, 573 P.2d at 446.
19
The Supreme Court of Oregon tied together consumer expectation and
manufacturer reasonableness in Phillips, 525 P.2d at 1036-37 (“A product is defective
and unreasonably dangerous when a reasonable seller would not sell the product if he
knew of the risks involved or if the risks are greater than a reasonable buyer would
expect.”) (quoting Welch v. Outboard Marine Corp., 481 F.2d 252, 254 (5th Cir. 1973)).
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know of the product=s danger, would have modified the product
in some way (design or warning) before selling it.20 Those
courts that expressed allegiance to this test would not ask what
a reasonable manufacturer should have known about the
product—lack of knowledge of the danger was no defense.
Under this definition of defect, various factors such as the
utility of the product, the feasibility of altering its design to
eliminate or reduce the danger without sacrificing its utility,
and the level of danger would come into play in the course of
examining the manufacturer=s hypothetical decision-making
process. The feasibility of an alternative design is highly
relevant in determining whether the manufacturer should have
changed the design or whether the product was non-defective
as designed and sold.21 If a design change had been feasible, it
would make it more likely that the court would find the
product defective, because a reasonable manufacturer would
have changed the design before the product passed out of its
control. As becomes apparent, this test is quite close to a pure
risk-utility test, because a reasonable manufacturer necessarily
engages in a risk-utility balancing process in the design phase
of every product it makes, and this balancing process informs
any potential design modification, as well as the decision
whether to sell the product at all.22
20
Id. at 1036 (“A dangerously defective article would be one which a
reasonable person would not put into the stream of commerce if he had knowledge of its
harmful character. The test, therefore, is whether the seller would be negligent if he
sold the article knowing of the risk involved. Strict liability imposes what amounts to
constructive knowledge of the condition of the product.”) (internal footnotes omitted).
21
For a discussion of alternative feasible designs, see Ellen Wertheimer, The
Smoke Gets in Their Eyes: Product Category Liability and Alternative Feasible Designs
in the Third Restatement, 61 TENN. L. REV. 1429, 1432-40 (1994).
22
The seven Wade-Keeton factors for evaluating the risks and utility of a
product are:
(1) The usefulness and desirability of the product–its utility to the user and
to the public as a whole. (2) The safety aspects of the product–the likelihood
that it will cause injury and the probable seriousness of the injury. (3) The
availability of a substitute product which would meet the same need and not
be as unsafe. (4) The manufacturer’s ability to eliminate the unsafe character
of the product without impairing its usefulness or making it too expensive to
maintain its utility. (5) The user’s ability to avoid danger by the exercise of
care in the use of the product. (6) The user’s anticipated awareness of the
dangers inherent in the product and their avoidability, because of general
public knowledge of the obvious condition of the product, or of the existence of
suitable warnings or instructions. (7) The feasibility, on the part of the
manufacturer, of spreading the loss by setting the price of the product or
carrying liability insurance.
Morningstar v. Black & Decker Mfg. Co., 253 S.E.2d 666, 681 n.20 (W. Va. 1979) (citing
Cepeda v. Cumberland Eng’g Co., 386 A.2d 816, 826-27 (1978)).
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Under the risk-utility test, a product is defective if its
risks outweigh its utility. In traditional and literal application,
knowledge of the danger is irrelevant: the product is examined
as it was and as it actually performed, including its dangers,
whether they were known to the manufacturer or not.23 This
test is close to the imputed knowledge test because a
reasonable manufacturer performs a risk-utility analysis on its
products before selling them, and because under neither test is
the court interested in whether the manufacturer knew of the
danger, this being tantamount to an imputation of knowledge.
As with the imputed knowledge test, the feasibility of an
alternative design is highly relevant in balancing the risks and
utility of the product in the form in which it was sold, as it may
(or may not) offer an example of a less harmful solution.
Under the consumer expectation test, the court asks
whether the product was more dangerous than a reasonable
consumer would expect. This test, like the other two, effectively
imputes knowledge of the danger to the manufacturer, because
the question is not what the manufacturer knew or should have
known about the product, but rather whether the product’s
actual danger was above reasonable consumer expectation. The
test requires an understanding of consumer expectations, but
no “understanding about the product itself.”24 Alternative
designs are perhaps less relevant here, as the focus is on what
the consumer expected of the particular product at issue.
The three tests were applied to define all defects,
whether of design or warning, depending on the test selected by
the particular jurisdiction.25 The types of defect were not
treated differently from each other: either a product was
defective, or it was not.
In practice as well as theory, the imputed knowledge
and consumer expectation tests tended to merge into the riskutility test. A reasonable manufacturer (under the imputed
knowledge test) performs a risk-utility test on all its products
before selling them. A reasonable consumer expects a product
23
See, e.g., Johnson v. Raybestos-Manhattan, Inc., 740 P.2d 548, 549 (Haw.
1987). Without the imputation of knowledge, there would have been no way to prove
the defendant negligent.
24
Green v. Smith & Nephew AHP, Inc., 629 N.W. 2d 727, 742 (Wis. 2001).
25
It is worth noting that a mismanufactured product is defective under all of
these tests: if a reasonable manufacturer had known of the flaw, that manufacturer
would have fixed it before selling the product; a flawed product fails any risk-utility
test; and a reasonable consumer does not, as a matter of law, expect a flawed product.
Res ipsa loquitur is basically a shortcut to these conclusions.
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to be one that a reasonable manufacturer would sell.26 Many
courts simply held that the consumer expectation test included
the risk-utility test, or abandoned the consumer expectation
test altogether.27 Whether courts applied a risk-utility test, one
of the other tests, or a combination, the results proved to be
controversial in design and warning cases, particularly in
situations where the product involved an unknowable danger
or could not be made safer by a change in design.
II.
THE EPIC BATTLES WITH STRICT PRODUCTS LIABILITY:
BEFORE THE THIRD RESTATEMENT
A.
The Demise of Liability for Unknowable Dangers in
Failure to Warn Cases
The original tests for defect did not deal explicitly with
the problem presented by liability for dangers that were
unknowable at the time the product was manufactured.28 By
the time the issue arose, the courts had set up their tests for
defective products. The cases in which the tests for defect were
adopted did not involve unknowable dangers. For example,
Phillips v. Kimwood, the leading case expounding the imputed
knowledge test, concerned an industrial sanding machine that
presented the risk of regurgitating sheets of plywood back at
the person using the machine.29 The installation of a set of rearfacing teeth, an easy and straightforward design change, would
have eliminated this danger. While the court used the case as a
vehicle for adopting the imputed knowledge test for defect, the
26
In Phillips v. Kimwood Mach. Co., 525 P.2d 1033, 1037 (Or. 1974) the court
pointed out that this is
because a seller acting reasonably would be selling the same product which a
reasonable consumer believes he is purchasing. That is to say, a
manufacturer who would be negligent in marketing a given product,
considering its risks, would necessarily be marketing a product which fell
below the reasonable expectations of consumers who purchase it.
Id.
27
See discussion infra Part II.B.
28
For the purposes of this article, there is no difference among the time of
design, manufacture, or sale. See Henderson, Jr., supra note 10, at 963-68. What is
important is that the manufacturer did not know of the danger before it materialized.
29
The details of the accident were as follows:
The pressure exerted by the pinch rolls in the top half of the machine was
insufficient to counteract the pressure which the sanding belts were exerting
upon the thin sheet of fiberboard and, as a result, the machine regurgitated
the piece of fiberboard back at plaintiff, hitting him in the abdomen and
causing him the injuries for which he now seeks compensation.
Phillips, 525 P.2d at 1035.
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plaintiff could, in all likelihood, have alternatively established
negligence in design.30 The danger was clearly knowable, and
the manufacturer arguably was unreasonable for failing to
protect against it. Similarly, Barker v. Lull Engineering, a
leading case adopting a combination of consumer expectation
and risk-utility tests, involved a piece of construction
equipment that lacked a roll-over shield that would protect the
operator of the equipment in the event of an accident.31 As with
Phillips, such a design change was both readily available and
straightforward, and the manufacturer was arguably negligent
in designing the product. The plaintiff could have won a
negligent design case and did not need strict products liability
in order to prevail.
Thus, courts were unprepared for the problem that
would be presented by lawsuits claiming that a product was
defective because the manufacturer had failed to warn of a
danger that was unknowable to the manufacturer. As Phillips
and Barker demonstrate, the early § 402A cases involved
eminently knowable dangers, dangers that could be eliminated
or reduced. The tests for defect adopted in these decisions did
not differentiate between types of defect or knowable or
unknowable dangers. This cannot have been accidental:
potential knowledge of the danger was completely irrelevant to
the policy that mandated recovery for innocent plaintiffs, even
when recovery was sought from innocent defendants. Indeed,
strict products liability was designed specifically to deal with
cases where the manufacturer had not been negligent. When
actually confronted with unknowable dangers, however, the
courts showed a tendency to back down from the principles and
law of strict products liability. As Professor Owen has
observed: “[i]n recent years, while an occasional court still
clings to the notion that strict liability for defective design and
warnings should not depend upon the foreseeability of the risk,
most courts squarely confronting the issue have shielded
30
Id. at 1038-39:
It is our opinion that the evidence was sufficient for the jury to find that a
reasonably prudent manufacturer, knowing that the machine would be fed
manually and having the constructive knowledge of its propensity to
regurgitate thin sheets when it was set for thick ones, which the courts via
strict liability have imposed upon it, would have warned plaintiff’s employer .
. . and that, in the absence of such a warning, the machine was dangerously
defective.
Id.
31
Barker v. Lull Eng’g Co., 573 P.2d 443, 446-47 (Cal. 1978).
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manufacturers from liability for harm caused by unforeseeable
product risks.”32
The issue that caused the massive retreat33 from strict
products liability centered around whether manufacturers
should be liable for injuries caused by dangers that had been
unknowable at the time of manufacture. While in theory there
are design dangers that may have been unknowable at the time
of manufacture,34 the cases tended to be about failure to warn,
and inevitably focused on whether a manufacturer should be
liable for failing to warn of a danger about which the
manufacturer could not have known.35 With one notable
exception, Beshada v. Johns-Manville Prods. Corp.,36 which
involved asbestos, most of the initial cases dealt with
prescription pharmaceuticals.37 In response to what was
32
David Owen, Products Liability Law Restated, 49 S.C. L. REV. 273, 288
(1998).
33
Frank J. Vandall, Constricting Products Liability: Reforms in Theory and
Procedure, 48 VILL. L. REV. 843, 851-64 (2003) (thoroughly documenting the retreat);
see also Ellen Wertheimer, Unknowable Dangers and the Death of Strict Products
Liability: The Empire Strikes Back, 60 U. CIN. L. REV. 1183, 1206-69 (1992)
[hereinafter Empire].
34
It is difficult to imagine a design defect that would have been unknowable
in the face of expert testing. In most design cases, the plaintiff could prevail even if
required to prove negligence, because the failure to uncover the design problem might
itself prove inadequate product testing. Escola v. Coca Cola Bottling Co., 150 P.2d 436,
439 (Cal. 1944) makes this clear:
If the explosion resulted from a defective bottle containing a safe pressure,
the defendant would be liable if it negligently failed to discover such flaw. If
the defect were visible, an inference of negligence would arise from the failure
of defendant to discover it. Where defects are discoverable, it may be assumed
that they will not ordinarily escape detection if a reasonable inspection is
made, and if such a defect is overlooked an inference arises that a proper
inspection was not made.
Id.
35
Clearly, if the danger were knowable, or if the manufacturer failed
adequately to test the product, the manufacturer would be liable in negligence.
36
Beshada v. Johns-Manville Prods. Corp., 447 A.2d 539, 542 (N.J. 1982).
37
Because they involved prescription pharmaceuticals, many of these cases
extensively discussed comment k of § 402A, which addressed application of products
liability principles to pharmaceutical products. See, e.g., Stone v. Smith, Kline &
French Labs., 447 So. 2d 1301, 1303 (Ala. 1984) (stating that comment k “provides for
drugs and vaccines an exception to the strict liability defined in 402A.”); Brown v.
Super. Ct., 751 P.2d 470, 475 (Cal. 1988); Wolfgruber v. Upjohn Co., 423 N.Y.S.2d 95,
97 (App. Div. 1979), aff’d, 417 N.E.2d 1002 (N.Y. 1980) (stating that “[t]he scope of the
warning is the key factor in a drug products liability suit because prescription drugs
are ‘unavoidably unsafe products.’”); Grundberg v. Upjohn Co., 813 P.2d 89, 95 (Utah
1991) (upheld a blanket exemption for prescription drugs but refused to rely
exclusively on the plain language of comment k); Young v. Key Pharms., Inc., 922 P.2d
59, 63 (Wash. 1996) (holding that comment k extends a blanket exemption to
pharmaceutical drug manufacturers). For further discussion of comment k, see infra
text accompanying notes 59-70.
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perceived as the unfairness of holding manufacturers liable for
failing to warn of dangers about which they could not have
known, courts almost uniformly, and sometimes with unseemly
haste,38 backed down from all of the tests for defect that they
had carefully developed over the preceding years, and imposed
a knowability requirement. When confronted specifically with
the prospect of imposing liability on pharmaceutical companies,
courts justified their retreat by reasoning that the development
of socially beneficial prescription pharmaceuticals should be
encouraged and that strict liability would inhibit their
development.39 This justification, however, did not adequately
explain the judicial haste in retreating from strict liability, nor
the breadth of the decisions, which went well beyond
pharmaceutical cases.40
The process of this decline—although more like a rout—
is readily documented.41 In Beshada, an asbestos case, the court
reacted almost with surprise to the defendants’ suggestion that
they should not be held liable for failing to warn of the
unknowable dangers of asbestos.42 The court pointed out that
strict products liability differed from negligence-based liability
precisely because it imputed knowledge of the danger to the
manufacturer.43 Allowing the defendant to use lack of
knowability as a defense would undercut the imputation of
knowledge test and replace it with the negligence standard
that § 402A was designed to supplement, thereby rendering §
402A meaningless.
The Beshada court noted that it was not asking
manufacturers to do the impossible in holding them liable for
38
See Feldman v. Lederle Labs., 479 A.2d 374, 386 (N.J. 1984). In Feldman,
the New Jersey Supreme Court, a scant 23 months after deciding Beshada, ruled that
imputed knowledge would be restricted to “knowledge at the time the manufacturer
distributed the product.” Id.
39
See Brown, 751 P.2d. at 477 (strict products liability not applicable to
prescription pharmaceuticals because of special concerns related to that industry).
40
See Anderson v. Owens-Corning Fiberglas Corp., 810 P.2d 549, 556-57
(Cal. 1991) (Brown not intended only to apply to prescription pharmaceuticals).
41
See Empire, supra note 33.
42
Beshada v. Johns-Manville Prods. Corp., 447 A.2d 539, 547 (N.J. 1982) (“If
we accepted defendants’ argument, we would create a distinction among fact situations
that defies common sense.”).
43
Id. at 545 (The “difference between negligence and strict liability in
warning cases . . . [is that] when a plaintiff sues under strict liability, there is no need
to prove that the manufacturer knew or should have known of any dangerous
propensities of its product—such knowledge is imputed to the manufacturer.” (quoting
Freund v. Cellofilm Props., Inc., 432 A.2d 925, 930 (N.J. 1981))).
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failing to warn of all dangers whether knowable or not.44 It is of
course impossible to warn of an unknowable danger.
Impossibility, however, is not the issue: responsibility for the
product, and for the injuries it has caused, is.45 The basis for
liability is not negligence, under which doctrine a
manufacturer would be liable only for dangers about which the
manufacturer should have known, but rather strict liability,
under which doctrine the basis for liability is defectiveness.
Under strict products liability, liability for a product follows
from responsibility for producing that product, and not from
negligence in producing it. The manufacturer may not have
known of the danger, but the plaintiff did not know of it
either.46 The manufacturer designed, packaged, and sold the
product, and should accept responsibility for the injuries it
causes provided the product fails the applicable test for defect.
The policy of strict products liability allocates the costs of
defective products to the manufacturer, not the plaintiff.
“‘[P]ublic policy demands that the burden of accidental injuries
caused by products . . . be placed on those who market them,
and be treated as a cost of production’ against which liability
insurance can be obtained.”47
Perhaps the fact that Beshada was an asbestos case
made it easier for the court to rule in favor of the plaintiffs,
because the public interest arguments that would later emerge
in prescription pharmaceutical cases were absent. Less than
two years later, however, in Feldman v. Lederle Labs., the
Supreme Court of New Jersey backed down from this
doctrinally pure position and allowed unknowability as a
defense in a case involving a prescription pharmaceutical.48 One
might argue that Beshada itself was a product of the “easy
cases make problematic law” proposition, and it is clear that
the court was much more comfortable holding asbestos
manufacturers liable for failing to warn of unknowable dangers
44
Id. at 546 (“When the defendants argue that it is unreasonable to impose a
duty on them to warn of the unknowable, they misconstrue both the purpose and effect
of strict liability. By imposing strict liability, we are not requiring defendant to have
done something that is impossible.”).
45
See Lewis v. Timco, Inc., 716 F.2d 1425, 1434 n.3 (5th Cir. 1983) (“As a
policy matter, strict liability in products cases deals with enterprise responsibility.”).
46
See Green v. Smith & Nephew AHP, Inc., 629 N.W.2d 727, 754-55 (Wis.
2001) (manufacturer liable for unknowable danger; consumer did not know of the
danger, and the consumer expectation test applied).
47
Id. at 750 (citing RESTATEMENT (SECOND) OF TORTS, § 402A cmt. c (1965)).
48
479 A.2d 374, 386 (N.J. 1984).
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than it was holding drug manufacturers liable in the same kind
of case. Be that as it may, the court in Feldman seemed
horrified at the prospect of holding a manufacturer liable for
failing to warn of an unknowable danger. Although the court
denied that it was overruling Beshada,49 it is clear that
Feldman did exactly that, stating that “[i]f Beshada were
deemed to hold generally or in all cases . . . that in a warning
context knowledge of the unknowable is irrelevant in
determining the applicability of strict liability, we would not
agree.”50 Feldman allowed manufacturers to argue that they
should not be liable for failing to warn of an unknowable
danger.51 As one court pointed out following Feldman:
Section 402A of the Restatement of Torts 2d does not require that
the plaintiff prove the manufacturer knew or should have known
that the product was unreasonably dangerous. However, courts have
refused to hold defendants strictly liable in the absence of such
knowledge or reason to know. The New Jersey Supreme Court held
in Beshada v. Johns-Manville Products Corp. (1982), 90 N.J. 191;
447 A. 2d 539, that a manufacturer could be strictly liable for harm
caused by a product even when it could not have known of the
danger at the time of manufacture. This case has not generally been
followed. Courts instead include foreseeability in their analysis of
strict liability.52
Instead of pursuing a case-by-case approach to the riskutility test, courts discarded the imputation of knowledge
approach altogether in the only category of cases where it
would determine the result: those in which the plaintiff could
not prove that the danger was knowable. As one commentator
put it:
[D]espite their bold rhetoric, courts are seldom willing to apply the
imputed knowledge approach in those rare cases where it actually
makes a difference. Rather, the tendency is to emphasize that
imputed knowledge differentiates strict liability from negligence only
49
Id. at 388 (“We do not overrule Beshada, but restrict Beshada to the
circumstances giving rise to its holding.”).
50
Id. at 387.
51
All that was left of strict products liability for failure to warn after
Feldman got through with it was the placement of the burden of showing
unknowability on the defendant. The plaintiff did not have to prove that the
manufacturer knew or should have known of the danger; rather, the defendant had to
prove that the danger was unknowable. See Feldman, 479 A.2d at 388.
52
Crislip v. TCH Liquidating Co., 556 N.E.2d 1177, 1183-84 n.1 (Ohio 1990).
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in those cases in which the defendant likely knew or should have
known of the risk even without imputed knowledge.53
Courts used several techniques in the incremental
process of whittling away at strict liability for unknowable
dangers. The first was simply to do so outright, the route taken
by the Feldman court. Another was the foot in the door
technique. In Brown v. Superior Court, the Supreme Court of
California ruled that manufacturers of prescription
pharmaceuticals should not be liable for failing to warn of
unknowable dangers because of the damage the threat of such
liability would do to the public interest in the development of
new prescription drugs.54 The opinion, although carefully
crafted to focus exclusively on the prescription drug industry,
was extended to asbestos litigation in subsequent cases. In
Anderson v. Owens-Corning Fiberglas Corp.,55 the court ruled
that asbestos manufacturers should not be liable for failing to
warn of unknowable dangers. Ignoring the difference between
pharmaceuticals and asbestos, the Anderson court based its
decision on the highly dubious ground that Brown was not
confined to prescription pharmaceuticals.56 Other courts used
similar arguments and tenuous analogies to avoid holding
manufacturers liable for unknown dangers.57
Yet another technique involved what I have called the
fox versus fox terrier approach.58 This technique relied on
53
Richard L. Cupp, Jr. & Danielle Polage, The Rhetoric of Strict Products
Liability versus Negligence: An Empirical Analysis, 77 N.Y.U. L. REV. 874, 896 (2002).
54
751 P.2d 470, 478-80 (Cal. 1988).
55
810 P.2d 549 (Cal. 1991). A prescription pharmaceutical might pass a riskutility test, even without a warning. Asbestos certainly does not.
56
Id. at 556-59.
57
Other courts have extended protection from liability for unknowable
dangers beyond the field of prescription drugs. See, e.g., Transue v. Aesthetech Corp.,
341 F.3d 911 (9th Cir. 2003) (breast implants); Brooks v. Medtronic, Inc., 750 F.2d
1227, 1232 (4th Cir. 1984) (holding that a pace maker can fall under comment k
protection); Hufft v. Horowitz, 5 Cal. Rptr. 2d 377, 378 (Ct. App. 1992) (extending
Brown to implanted medical devices); Brody v. Overlook Hosp., 317 A.2d 392, 397 (N.J.
1974) (holding that hepatitis-infected blood should be considered an “unavoidably
unsafe product” as defined in comment k), aff’d, 332 A.2d 596 (N.J. 1975); RuizGuzman v. Amvac Chem. Corp., 7 P.3d 795 (Wash. 2000) (blanket protection for all
medical products, but protection will be extended on a case-by-case basis for
pesticides); Rogers v. Miles Labs., Inc., 802 P.2d 1346, 1347 (Wash. 1991) (extending
comment k immunity to all blood and blood product cases); Terhune v. A.H. Robins Co.,
577 P.2d 975 (Wash. 1978) (extending comment k protection to include the Dalkon
Shield, an internal contraceptive device); see also Hines v. St. Joseph’s Hosp., 527 P.2d
1075, 1077 (N.M. Ct. App. 1974) (implying extension of Restatement § 402A comment k
protection to blood and, more specifically, blood infected with hepatitis).
58
This label is based on an essay by Stephen Jay Gould called “The Case of
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comment j to § 402A, which many courts, quoting an edited
version of this comment from other opinions in other
jurisdictions, misinterpreted to allow liability only for failing to
warn of knowable dangers. In applying this technique, a court
would quote comment j to § 402A in support of the position that
manufacturers should not be liable for failing to warn of
unknowable dangers. As quoted by the courts,59 comment j
provides:
Where, however, the product * * * is one whose danger is not
generally known, or if known is one which the consumer would
reasonably not expect to find in the product, the seller is required to
give warning against it, if he has knowledge, or by the application of
the Creeping Fox Terrier Clone,” in which he discussed the problem presented when
sequential sources simply quote from the preceding source, errors and all. The essay
deals with an error about the size of eohippus that appeared in an early biology text;
the error reappears through decades of texts because the subsequent authors all quote,
in sequence, the error as quoted in the preceding text. Comment j to § 402A has been
treated much as the evolutionary history of horses was treated in these texts. See
STEPHEN JAY GOULD, BULLY FOR BRONTOSAURUS: REFLECTIONS IN NATURAL HISTORY
155, 155-67 (W.W. Norton & Co. 1991).
59
Numerous courts have quoted comment j in this manner. See, e.g.,
Anderson v. Owens-Illinois, Inc., 799 F.2d 1, 4 (1st Cir. 1986); Vermeulen v. Armstrong
World Indus., 204 Cal. App. 3d 1192, 1204 (Ct. App. 1988); Malin v. Union Carbide
Corp., 530 A.2d 794, 798 (N.J. Super. Ct. App. Div. 1987); Chrysler Corp. v. Batten, 450
S.E.2d 208 (Ga. 1994) (utilizing quotation marks, the judge in this seatbelt failure case
quotes comment j in a way so that he eliminates the ellipses and takes comment j
completely out of the allergy context). Other courts picked up this version of comment j
in their own opinions, citing preceding opinions as the source. This process may be
traced as one follows an identical version from Zeigler v. CloWhite Co., 507 S.E.2d 182,
184 (Ga. Ct. App. 1998) and Uniroyal Goodrich Tire Co. v. Ford, 461 S.E.2d 877, 898
(Ga. Ct. App. 1995) (stating “see also Restatement (2d) of Torts, § 402A, Comment j
(seller is required to give warning ‘if he has knowledge, or by the application of
reasonable, developed human skill and foresight should have knowledge’ of the danger
. . . .”)) into subsequent opinions, in which the identical quotation appeared. See
Woodill v. Parke Davis & Co.,402 N.E.2d 194, 197 (Ill. 1980); Hickman v. Thomas C.
Thompson Co., 644 F. Supp. 1531, 1537 (D. Colo. 1986). This case involved the
inhalation of enamel dust:
This argument is supported by comment j to § 402A of the Restatement
(Second) of Torts (1965), which states, in applicable part, that “the seller is
required to give warning . . . if he has knowledge, or by the application of
reasonable, developed human skill and foresight should have knowledge, of
the presence of the ingredient and the danger.”
Id. (quoting RESTATEMENT (SECOND) OF TORTS § 402A cmt. j (1965)). In McElhaney v.
Eli Lilly & Co., 575 F. Supp. 228, 231 (D. S.D. 1983) the court quoted comment j as
follows:
In order to prevent the product from being unreasonably dangerous, the
seller may be required to give directions or warning . . . as to its use. . . . [T]he
seller is required to give warning . . . if he has knowledge, or by the
application of reasonable, developed human skill and foresight should have
knowledge, of the presence of . . . the danger.
Id.; Feldman v. Lederle Labs., 479 A.2d 374, 386) (N.J. 1984); Vassallo v. Baxter
Healthcare Corp., 696 N.E.2d 909, 922 (Mass. 1998).
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reasonable, developed human skill and foresight should have
knowledge, of the * * * danger.
Unfortunately for the intellectual integrity of this
analysis, however, comment j in fact says more.60 Comment j,
without the careful ellipses, provides:
Where, however, the product contains an ingredient to which a
substantial number of the population are allergic, and the ingredient
is one whose danger is not generally known, or if known is one which
the consumer would reasonably not expect to find in the product, the
seller is required to give warning against it, if he has knowledge, or
by the application of reasonable, developed human skill and
foresight should have knowledge, of the presence of the ingredient
and the danger.61
Comment j requires the seller to warn against
ingredients that might provoke allergic reactions. As the
antecedent of the word “it” in the fifth line of the above
quotation is “ingredient,” not “danger,” the risk involved is the
risk of an allergic reaction, not a general danger attached to
use of the product.62 It seems, then, that the courts simply
quoted comment j as quoted by each other, without reading the
actual text of the comment. When one reads the actual text,
one discovers that the comment is about allergic reactions and
only about knowability insofar as an ingredient is known to
60
As the court pointed out in Sternhagen v. Dow Co., 935 P.2d 1139, 1142
(Mont. 1997):
Furthermore, the Chemical Companies rely on only one part of the third
sentence of Comment j which, when considered in its entirety, indicated that
this sentence is not applicable to the question certified to this Court. . . . The
certified question before us involves an alleged cancer-causing ingredient, not
one to which the decedent is alleged to have been allergic. Therefore, the
third sentence of Comment j is not applicable to the certified question.
Id.
61
RESTATEMENT (SECOND) OF TORTS § 402A cmt. j (1965).
62
The court noted the major flaw in the defendant’s argument that comment
j provided immunity for unknowable dangers in In re Haw. Fed. Asbestos Cases, 665 F.
Supp. 1454, 1458-59 & n.4 (D. Haw. 1986):
Defendants believe that Hawaii will follow comment j, and that comment j
allows the defense. I do not believe that the Court will follow comment j with
the result that it overrides the consumer expectation test when the
defendants could not have known of the products defects . . . . But the largest
flaw in defendants’ argument is that comment j applies to products that
cause allergic reactions. Comment j applies to common products, such as
strawberries, eggs, and possibly cosmetics, that are otherwise safe yet cause
allergic reactions. Obviously no one would consider asbestosis, lung cancer, or
mesothelioma resulting from asbestos exposure an allergic reaction.
Id. at 1458-59.
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cause such an allergic reaction. Quite simply, the comment
does not support the use to which the courts have put it.63
Courts have employed a similar technique in using
comment k to justify exempting pharmaceutical manufacturers
from § 402A. Many happily held that comment k provided an
exemption from the strictures of § 402A for prescription drugs
because such drugs are unavoidably dangerous.64 Unfortunately
for the intellectual integrity of such judicial analysis, comment
k does not say this. Comment k, which again is almost never
quoted in its entirety, provides:
There are some products which, in the present state of human
knowledge, are quite incapable of being made safe for their intended
and ordinary use. These are especially common in the field of drugs.
An outstanding example is the vaccine for the Pasteur treatment of
rabies, which not uncommonly leads to very serious and damaging
consequences when it is injected. Since the disease itself invariably
leads to a dreadful death, both the marketing and the use of the
vaccine are fully justified, notwithstanding the unavoidable high
degree of risk which they involve. Such a product, properly prepared,
and accompanied by proper directions and warning, is not defective,
nor is it unreasonably dangerous. The same is true of many other
drugs, vaccines, and the like, many of which for this very reason
cannot legally be sold except to physicians, or under the prescription
of a physician. It is also true in particular of many new or
experimental drugs as to which, because of lack of time and
opportunity for sufficient medical experience, there can be no
assurance of safety, or perhaps even of purity of ingredients, but
such experience as there is justifies the marketing and use of the
drug notwithstanding a medically recognizable risk. The seller of
such products, again with the qualification that they are properly
prepared and marketed, and proper warning is given, where the
situation calls for it, is not to be held to strict liability for
unfortunate consequences attending their use, merely because he
has undertaken to supply the public with an apparently useful and
desirable product, attended with a known but apparently reasonable
risk.65
63
Even when they quote comment j in its entirety, however, some courts
persist in citing comment j as proof that the manufacturer is only liable for knowable
dangers. This knowability requirement, along with comment j, was then applied to
cases that had nothing to do with allergies or even pharmaceuticals. See, e.g., Crislip v.
TCH Liquidating Co., 556 N.E.2d 1177, 1180 (Ohio 1990) (wood-burning furnace). In
Crislip, while discussing failure to warn issues, the court cited comment j as supporting
the general proposition that a manufacturer can only be held liable for failing to warn
if the danger was knowable. Id. Although the court includes virtually all of the
language of comment j, it italicizes the warning language for emphasis and completely
ignores the language regarding allergies. Id.
64
See supra text accompanying note 37.
65
RESTATEMENT (SECOND) OF TORTS § 402A cmt. k (1965).
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This language does not include an exemption from §
402A for prescription pharmaceuticals. Far from it. Comment k
provides no immunities at all. Rather, comment k by its own
terms
provides
that
manufacturers
of
prescription
pharmaceuticals are not strictly liable for damages provided
their drug passes a risk-utility test. The example provided in
the comment itself is the Pasteur vaccine, which, although
dangerous, is not defective as the disease that it is designed to
prevent is hideously fatal. The Pasteur vaccine is dangerous,
but not unreasonably so. Indeed, comment k invites the
application of the risk-utility test to drugs; if the drug passes it,
the drug is dangerous but not defective; if not, the drug is
defective. It is also worth pointing out that a drug like the
Pasteur vaccine would be nondefective even in the absence of
any warning, because no consumer would reject the vaccine in
spite of being warned.66 Comment k recognizes the existence of
reasonably dangerous products. In order to be so classified,
however, the product must pass a risk-utility test.
Some courts simply ruled that there was no difference
between failure to warn in negligence and failure to warn
under § 402A.67 In doing so, these courts simply and explicitly
abolished strict liability for failure to warn altogether.
Manufacturers would only be liable for failing to warn under
negligence doctrine. One court remarked: “After reviewing the
authorities and comments on the failure to warn question, we
believe any posited distinction between strict liability and
negligence principles is illusory. We fail to see any distinction
between negligence and strict liability in the analysis of those
66
See Reyes v. Wyeth Labs., 498 F.2d 1264, 1273-74 (5th Cir. 1974) (noting
the risk of contracting polio from the vaccine compared with risk of contracting polio
without it).
67
Some jurisdictions required that manufacturers prove lack of knowability,
while others simply divided failure to warn law from strict products liability and put it
back into negligence.
The following are cases that require proof of lack of knowability: Oglesby v.
Gen. Motors Corp., 190 F.3d 244, 252 (4th Cir. 1999); Woodill v. Parke Davis & Co., 402
N.E.2d 194, 199 (Ill. 1980); Bilotta v. Kelley Co., 346 N.W.2d 616, 622 (Minn. 1984);
Mauch v. Mfrs. Sales & Serv., Inc., 345 N.W.2d 338, 346 (N.D. 1984); Bragg v. HiRanger, Inc., 462 S.E.2d 321, 328 (S.C. 1995).
The following cases stand for the concept that the standard in strict
liability is a negligence standard: Flaminio v. Honda Motor Co., 733 F.2d 463, 466 (7th
Cir. 1984); Crislip, 556 N.E.2d at 1183 (“Thus, the standard imposed upon the
defendant in a strict liability claim grounded upon an inadequate warning is the same
as that imposed in a negligence claim based upon inadequate warning.”); Standhardt v.
Flintkote Co., 508 P.2d 1283, 1290-91 (N.M. 1973); Castrignano v. E.R. Squibb & Sons,
Inc., 546 A.2d 775, 782 (R.I. 1988).
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jurisdictions injecting a knowledge requirement into their strict
liability/ failure to warn equation.”68
B.
The Consumer Expectation Test
Like the imputed knowledge test, the consumer
expectation test has nothing to do with a manufacturer’s
knowledge of the danger. Rather, the test concerns whether the
product performed as safely (or as unsafely) as a reasonable
consumer would expect.
As has often been documented,69 the consumer
expectation test ran into problems from the start. As an initial
matter, there may be no ascertainable consumer expectation
for a particular product.70 Consumer expectation for a product
may be too low, as is the case for products with obvious
dangers.71 Conversely, consumer expectation for a product may
be too high, as might be the case for prescription
pharmaceuticals.72
68
Olson v. Prosoco, Inc., 522 N.W.2d 284, 289 (Iowa 1994). Not all courts
abandoned the imputation of knowledge in such cases. Hawaii, for example, continued
to impute knowledge irrespective of its knowability. See Johnson v. RaybestosManhattan Inc., 740 P.2d 548, 549 (Haw. 1987). Massachusetts, which initially
adhered to the imputation of knowledge, only abandoned its commitment to strict
products liability in 1998, in Vassallo v. Baxter Healthcare Corp., 696 N.E.2d 909, 92223 (Mass. 1998), after other courts were returning to the Second Restatement.
69
See, e.g., Empire, supra note 33, at 1198.
70
Heaton v. Ford Motor Co., 435 P.2d 806, 810 (Or. 1967). See also Gen.
Motors Corp. v. Farnsworth, 965 P.2d 1209, 1221 n.16 (Alaska 1998) (The Supreme
Court of Alaska, discussing the possible shortcomings of the consumer expectations
test and citing Soule v. Gen. Motors Corp., 882 P.2d 298, 306 (Cal. 1994), stated “Soule
did recognize, however, that some products may be so unfamiliar to the average
consumer that it would be difficult to form any intelligent expectations about how they
should perform.”).
71
If the consumer expectation test governed, no product with an obvious
danger could be defective. Courts have uniformly rejected this argument, holding that
products with obvious dangers, while they passed a consumer expectation test, might
still fail a risk-utility test. See, e.g., Knitz v. Minster Mach. Co., No. L-84-125, 1987 WL
6486, at *35-36 (Ohio Ct. App. Feb. 9, 1987) (punch press).
72
A reasonable consumer might expect a vaccine to be without risks when it
cannot be so and should not be ruled defective simply because it is dangerous. Such a
product might pass a risk-utility test. See RESTATEMENT (SECOND) OF TORTS § 402A
cmt. k (1965); see also Reyes v. Wyeth Labs., 498 F.2d 1264, 1273-74 (5th Cir. 1974):
Although the living virus in the vaccine does not make the vaccine defective,
it does make it what the Restatement calls an “unavoidably unsafe product”,
one which cannot be made “safe” no matter how carefully it is manufactured.
Such products are not necessarily “unreasonably dangerous”, for as this
Court has long recognized in wrestling with product liability questions, many
goods possess both utility and danger. . . . Applying this standard here, the
scales must tip in favor of availability. The evil to be prevented–poliomyelitis
and its accompanying paralysis–is great. Although the danger that vaccinees
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Many courts dodged the problems presented by the
consumer expectation test by abolishing it or reconstruing it as
a risk-utility test.73 Thus, as the Phillips court declared,74 the
reasonable consumer would be held to expect the product that a
reasonable manufacturer would produce. Otherwise, the
reasonable consumer would perform an increasingly
hypothetical risk-utility balancing test on the product—the
same test the manufacturer would perform. The pure
reasonable consumer test fell into desuetude in the same caseby-case process that led to the abolition of liability for
unknowable dangers.
The shift away from the consumer expectation test was
initially motivated by the need for a standard that would
protect consumers from products that passed the consumer
expectation test because they were obviously dangerous. This is
clear in Barker v. Lull Engineering and ensuing cases: courts
perceived a need for a standard of defectiveness that would
leave room for a design to be defective even if the product were
no more dangerous than a reasonable consumer would expect.75
may contract polio is qualitatively devastating, it is statistically miniscule.
On balance then, marketing the vaccine is justified despite the danger.
Id. (internal citations omitted).
73
Flemister v. Gen. Motors Corp., 723 So. 2d 25, 27 (Ala. 1998) (concluding
that the appropriate standard in a crashworthiness case was a test that, although
referred to as a consumer expectation test, was a hybrid test including risk-utility
factors and the requirement of proof of a reasonable alternative design). The Justices in
Flemister stated:
“Consumer expectation,” considered in the context of the entire text of [the
relevant jury instruction], is not the exclusive test by which a jury evaluates
an alleged design defect. Rather, the term “consumer expectation” . . . states
only one factor of a standard that acknowledges a consumer’s reasonable
expectations as to the intended purpose of the automobile; [applicable law]
also requires proof of the attendant risk and utility of the automobile’s design
and of any available design alternatives, from which proof a jury could
reasonably conclude that the automobile’s design was defective.
723 So. 2d at 27; see also Miele v. Am. Tobacco Co., 770 N.Y.S.2d 386, 391 (App. Div.
2003):
While the dissent herein suggests that New York applies a consumer
expectations test to design defect causes of action, the Court of Appeals made
clear in Denny v. Ford Motor Co. (87 N.Y.2d 248, 662 N.E.2d 730, 639
N.Y.S.2d 250), that the determination of whether a design defect is actionable
requires a balancing of risks and utilities of the product, with the consumer’s
degree of awareness of the product’s potential danger but one factor to
consider in that analysis.
Id.
74
Phillips v. Kimwood Mach. Co., 525 P.2d 1033, 1036-37 (Or. 1974).
75
Barker v. Lull Eng’g Co., 573 P.2d 443, 454 (Cal. 1978) (“[A] product may
be found defective in design, even if it satisfies ordinary consumer expectations, if
through hindsight the jury determines that the product’s design embodies ‘excessive
preventable danger,’ or, in other words, if the jury finds that the risk of danger
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Numerous California decisions have implicitly recognized this fact
and have made clear, through varying linguistic formulations, that a
product may be found defective in design, even if it satisfies ordinary
consumer expectations, if through hindsight the jury determines
that the product’s design embodies “excessive preventable danger,”
or, in other words, if the jury finds that the risk of danger inherent
in the challenged design outweighs the benefits of such design.76
In other cases, consumer expectation tests were either
rejected or transformed into a risk-utility test in order to allow
complex products, about which consumers could have no
reasonable expectation, to be ruled defective.77 Thus, necessary
refinements in the consumer expectation test were made in
order to allow liability in a broader group of cases than the test,
literally applied, would have permitted.78
All of this led to the consumer expectation test becoming
increasingly disfavored. Some courts abandoned it altogether in
favor of a risk-utility test.79 Of course, this abandonment does
inherent in the challenged design outweighs the benefits of such design.”); CollazoSantiago v. Toyota Motor Corp., 937 F. Supp. 134, 137-39 (D.P.R. 1996) (holding that
Puerto Rico would adopt the two-prong Barker test which would allow a jury to find a
product defective even if the product meets an ordinary consumer’s expectations);
Caterpillar Tractor v. Beck, 593 P.2d 871, 884 (Alaska 1979) (adopting the Barker twoprong test, the Supreme Court of Alaska stated “[i]n view of the diversity of product
deficiencies which could fall within the notion of defect, we are persuaded that the
Barker two-prong test provides the most comprehensive guidelines for instructing
juries, without compromising any of the goals of strict liability.”); Ontai v. Straub
Clinic & Hosp., Inc., 659 P.2d 734, 740 (Haw. 1983) (holding that the Barker test would
be applied in the jurisdiction of Hawaii).
76
Barker, 573 P.2d at 454.
77
Dart v. Wiebe Mfg., Inc., 709 P.2d 876, 879 (Ariz. 1985) (holding that the
consumer expectation test applies in cases where the consumer could have formed an
expectation. “Where the consumer expectation test is inappropriate [because the
consumer has none], the question of defective and unreasonably dangerous condition
may be determined by applying Wade’s risk/benefit factors . . . .”). But see Clay v. Ford
Motor Co., 215 F.3d 663, 669 (6th Cir. 2000) (noting that although Ohio statute
previously provided for both the risk-utility test and the consumer expectation test, an
amendment to the statute in 1998 eliminated the consumer expectation test from
consideration in products designed after January 27, 1997).
78
That group of cases in which consumer expectations were unrealistically
high did not play a major role in the changing of the test for defectiveness. Most of
those cases involved prescription pharmaceuticals, and courts tended to deal with drug
manufacturers under warning, not design, law. Comment k provides an example of
such a product in the form of the Pasteur rabies vaccine. RESTATEMENT (SECOND) OF
TORTS § 402A cmt. k (1965), as does Reyes v. Wyeth Labs., 498 F.2d 1264 (5th Cir. 1974)
(polio vaccine).
79
See Habecker v. Clark Equip. Co., 942 F.2d 210, 215 (3d Cir. 1991) (stating
that “the fact finder can only determine whether design was defective after hearing
evidence about what designs were feasible the time the product was manufactured and
whether they were in fact safer.”); Beck, 593 P.2d at 885 (stating that once plaintiff has
shown that the injury was proximately caused by the product, defendant can avoid
liability by proving that the benefits of the design outweighed the risk of danger);
Barker, 573 P.2d at 457-58 (defining defect through a combination of consumer
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not in itself eliminate liability for unknowable dangers,
because the risk-utility test, like imputed knowledge and
consumer expectation, has nothing to do with knowability.
Rather, the risk-utility test involves weighing the product as it
was, and no party’s knowledge of the danger—whether plaintiff
or defendant—is relevant to this process.
C.
Reasonable Alternative Design
Section 402A did not require that the plaintiff prove the
existence of a reasonable alternative design as an element of
defectiveness. To be sure, many courts were reluctant to rule
that a design could be defective without proof that it could be
made safer,80 but not all held that a reasonable alternative
design was a sine qua non of design defect under § 402A.81 Some
commentators, however, took the position that liability in the
absence of an alternative feasible design, (which they called
“product category liability”), was tantamount to liability
without defect.82 This characterization is inaccurate and
theoretically unsound. Liability in the absence of an alternative
feasible design is liability without defect if and only if defect is
defined as requiring an alternative feasible design. If defect is
defined in terms of a risk-utility test, the existence of an
alternative feasible design may be a factor in weighing the
product’s usefulness and dangers, but is not a requirement for
engaging in the weighing process.83 A product must pass a riskexpectation test and risk-utility balancing analysis).
80
Kotler v. Am. Tobacco Co., 926 F.2d 1217, 1225 (1st Cir. 1990) (“[T]he
existence of a safer alternative design is a sine qua non for the imposition of liability. . .
. It is illogical to say that a product is defective . . . when ‘defect’ has historically been
measured in reference to the availability, or at least the feasibility of safer
alternatives.”), vacated, 505 U.S. 1215 (1992) (for further consideration in light of
Cipollone), aff’d on reh’g, 981 F.2d 7 (1st Cir. 1992); Miller v. Brown & Williamson
Tobacco Corp., 679 F. Supp. 485 (E.D. Pa. 1988) (granting summary judgment where
plaintiff failed to allege that cigarettes were capable of being safely designed), aff’d,
856 F.2d 184 (3d Cir. 1988); Kelley v. R.G. Indus., Inc., 497 A.2d 1143 (Md. 1985)
(declining to impose strict liability under doctrine of abnormally dangerous activity
upon manufacturer and marketer of a handgun and holding that the risk-utility strict
liability test was inapplicable).
81
Couch v. Mine Safety Appliances Co., 728 P.2d 585, 586 (Wash. 1986) (The
availability of a reasonable alternative design is “not a necessary element of a
plaintiff’s burden” in a design defect action.).
82
These commentators include Professors Henderson and Twerski, who were
the Reporters for the Third Restatement. See James A. Henderson, Jr. & Aaron D.
Twerski, Closing the American Products Liability Frontier: The Rejection of Liability
Without Defect, 66 N.Y.U. L. REV. 1263 (1991).
83
As one court stated:
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utility test in order to be nondefective; it can pass (or fail) such
a test whether there is or is not an alternative feasible design.
An unavoidably unsafe product, even one bearing a warning,
can still be tested under a risk-utility standard.84 Holding such
a product nondefective solely because it is unavoidably unsafe
is illogical, as the risks may still outweigh the benefits of the
unavoidably unsafe product. Useful, unavoidably unsafe
products may well be nondefective; useless ones should not be
exempt from defective status simply because they cannot be
made safer.85 Be this as it may, courts tended to allow
themselves to be persuaded that liability in the absence of an
alternative feasible design was liability without defect,86 even
Defendants argue that in order to recover, Plaintiffs should have been
required to prove there was a safer alternative design; there is no such
requirement under Michigan law. The existence of, or lack of a safer
alternative design, may have been relevant, but it is not dispositive in the
sense that such proof is necessary to make out a prima facie case or in the
sense that the court should have decided the issue as a matter of law. The
trial court correctly instructed that there may be more than one proximate
cause and that defendants’ conduct need only be a proximate cause in order
for plaintiffs to recover.
Leichtamer v. Am. Motors Corp., No. 5223, 1980 Ohio App. LEXIS 13923, at *36 (Ohio
Ct. App. July 30, 1980) (citing Anderson, Admr. v. Volkswagenwerk & Traverse
Motors, Inc., Case No. 31230); see also Timmons v. Ford Motor Co., 982 F. Supp. 1475,
1479 (S.D. Ga. 1997) (Although the Georgia Supreme Court refers to proof of the
existence of an alternative design in design defect cases as the “heart of a design defect
analysis,” alternative designs are only one factor in the analysis.); Pease v. Am.
Cyanamid, 795 F. Supp. 755, 759 (D. Md. 1992) (proof of an alternative design is one of
seven factors to be weighed in the balancing test to determine if a product can be
considered unreasonably dangerous); Newman v. Ford Motor Co., 975 S.W.2d 147, 15253 (Mo. 1998) (declining to incorporate into the jury instructions the Third
Restatement’s requirement of a reasonable alternative design).
84
Some products are unavoidably unsafe, and can be rendered non-defective
by the addition of a warning. The mere presence of a warning, however, should not
automatically mean that the product passes a risk-utility test, particularly where the
warning provides information that does not render the product safe, but which rather
informs the consumer about dangers that inhere in the normal use of the product. See
Rogers v. Ingersoll-Rand Co., 144 F.3d 841 (D.C. Cir. 1998).
85
Ellen Wertheimer, The Smoke Gets in their Eyes, Product Category
Liability and Alternative Feasible Designs in the Third Restatement, 61 TENN. L. REV.
1429, 1435 (1994).
86
See Miller v. Brown & Williamson Tobacco Corp., 679 F. Supp. 485 (E.D.
Pa. 1988), aff’d, 856 F.2d 184 (3d Cir. 1988) (holding that plaintiff’s claim that
cigarettes were incapable of being designed safely precluded a design defect charge);
Kelley v. R.G. Indus., 497 A.2d 1143 (Md. 1985) (declining to impose strict liability
under the doctrine of abnormally dangerous activity upon manufacturer and marketer
of a handgun and holding that the risk-utility strict liability test was inapplicable). For
more recent cases, see Quintana-Ruiz v. Hyundai Motor Corp., 303 F.3d 63, 71 (1st Cir.
2002); Lederman v. Pac. Indus., 119 F.3d 551, 555 n.5 (7th Cir. 1997); Bravman v.
Baxter Healthcare Corp., 794 F. Supp. 96, 101 (S.D.N.Y. 1992), aff’d in part and rev’d
in part, 984 F.2d 71 (2d Cir. 1993); Kaiser Aluminum & Chem. Corp. v. Westinghouse
Elec. Corp., 981 F.2d 136, 144 (4th Cir. 1992).
But see Frank J. Vandall, The Restatement (Third) of Torts: Products
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though this meant exempting manufacturers of highly
dangerous/low utility products from liability.
As is the case with unknowable dangers, the idea of a
reasonable alternative design has implications for the
consumer expectation test for defect. If the consumer
expectation test is used, the court simply asks whether the
product was as safe as a reasonable consumer would expect.
This question has nothing to do with either knowability of the
danger or availability of an alternative feasible design: the
question is simply whether the product was as safe as expected
by the consumer. Thus, neither unknowability nor lack of a
reasonable alternative design should constitute a defense for
the manufacturer under the consumer expectation test. It
should come as no surprise, then, that the Third Restatement
does not include a consumer expectation test for design or
warning defect.87
Liability Section 2(b): The Reasonable Alternative Design Requirement, 61 TENN. L.
REV. 1407, 1428 (1994) (“The centerpiece of the proposed Restatement (Third) of Torts:
Products Liability is the requirement that the plaintiff present evidence of a reasonable
alternative design as part of her prima facie case. This requirement is not supported by
the majority of the jurisdictions that have considered the question.”).
Efforts to foreclose liability in the absence of an alternative feasible design
have not been restricted to the courts. Legislatures have enacted statutes defining
products liability to exclude liability in the absence of such a design. See Brown v.
Philip Morris, Inc., 228 F. Supp. 2d 506, 520-24 (D.N.J. 2002) (discussing the
application of one such statute as applied to cigarettes). The New Jersey Product
Liability Act foreclosed liability both in the absence of an alternative feasible design
and in the presence of consumer expectation of the danger. N.J. STAT. ANN. § 2A:58C3a (West 2000). Other jurisdictions have adopted statutes to protect manufacturers of
guns and ammunition, as well as cigarettes. See, e.g., N.C. GEN. STAT. § 99B-11 (2001).
Significantly, North Carolina’s statute was enacted in 1987, the period when strict
products liability was being curtailed nationally. Id.
87
Mismanufactured products almost by definition fail a consumer
expectation test, and the Third Restatement has left the law applicable to such
products alone. Res ipsa loquitur applies to mismanufactured products, and not to any
other type of defect. This leads to the fascinating problem of classifying products as
defective by reason of mismanufacture or design; as Professor Twerski himself has
implied, one cannot always tell from what type of defect a product suffers. See Alvin S.
Weinstein, Aaron D. Twerski, Henry R. Piehler & William A. Donaher, Product
Liability: An Interaction of Law and Technology, 12 DUQ. L. REV. 425, 430-31 (1974)
(product might be defective in either design or manufacture, or neither, because “all
products are flawed at some technological level”). The implications of the classification
are potentially vast; however, the plaintiff must prove an alternative feasible design if
the claim is one of design defect, but need only prove that the product caused the injury
and that it should not have done so if the claim is one of mismanufacture. See, e.g.,
James A. Henderson, Jr. & Aaron D. Twerski, Achieving Consensus on Defective
Product Design, 83 CORNELL L. REV. 867, 869-70 (1998).
[B]oth legal commentators and the practicing bar muddied the waters by
confusing the issue of the standard for design defect with other issues that
have little or nothing directly to do with the standard, such as the issue of
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This article now sets the stage for the Third
Restatement of Products Liability. It turns to the eve of the
Third Restatement, and analyzes where the legal permutations
of § 402A discussed above had landed the law as the Third
Restatement drafting process began.
D.
The Eve of the Third Restatement: The Special Problem
of Unknowable Dangers
The decimation of strict products liability was greeted
with enthusiasm by many scholars, including Professors
Henderson and Twerski, the Reporters for the Third
Restatement, who had been opposed to liability without fault
from the start.88 These eminent scholars were appointed to be
the reporters for the Third Restatement of Torts, and they
enthusiastically embraced what they viewed as a judicial trend
towards reshaping strict products liability into negligencebased liability.89
It is worth noting that the courts that abolished the
imputation of knowledge in cases involving unknowable
dangers focused exclusively on the perceived unfairness to the
defendants of holding them liable for failing to do something
they could not, by definition, have done. In their zeal to protect
manufacturing endeavors, the courts ignored or glossed over
the unfairness to the plaintiffs in leaving them with costs they
could not, also by definition, have avoided.90 Strict products
liability stands for the idea that the party that designed, sold,
marketed and profited from the product should pay for the
injuries it causes as a cost of doing business.91 However unfair
whether the producer should be liable when a design conforms with the best
technology available at the time of sale.
Id. at 871.
88
For an extensive listing of articles written by Professors Henderson and
Twerski, see Jerry J. Phillips, Achilles’ Heel, 61 TENN. L. REV. 1265, 1265 n.3 (1994).
89
Not everyone agreed that there was any such trend. John Vargo presented
strong evidence to the contrary in his monumental article. John F. Vargo, The
Emperor’s New Clothes: The American Law Institute Adorns a “New Cloth” for Section
402A Products Liability Design Defects—A Survey of the States Reveals a Different
Weave, 26 U. MEM. L. REV. 493 (1996). Vargo claims that the reporters of the Third
Restatement overstated the strength of the precedents on which they relied.
90
One of the original policy reasons driving the imposition of strict liability
was that it “insure[d] that the costs of injuries resulting from defective products are
borne by the manufacturers that put such products on the market rather than by the
injured persons who are powerless to protect themselves.” Greenman v. Yuba Power
Prods., Inc., 377 P.2d 897, 901 (Cal. 1963).
91
See Mark. C. RAHDERT, COVERING ACCIDENT COSTS: INSURANCE, LIABILITY,
AND TORT REFORM 73-74 (1995).
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it may appear to hold a manufacturer liable for failing to warn
of an unknowable danger, it is surely more unfair to leave the
costs of the injury on the plaintiff. Allowing manufacturers to
escape liability imposes a subsidy of their manufacturing
efforts on whatever entity gets left with the costs. This result is
indefensible both morally and economically.
The Third Restatement, by codifying this subsidy, also
brought it judicial attention. As the following analysis will
demonstrate, however, proponents of eliminating strict
products liability would probably have been better off leaving
their views uncodified.
As previously discussed, the basis for the fairly
wholesale retreat from imposing liability for unknowable
dangers lay in the idea that liability for failing to warn of
unknowable dangers would be absolute. If the test is whether a
manufacturer acted reasonably in not warning of knowable
dangers, defenses are few and far between, because what
factfinder would conclude that a reasonable manufacturer,
knowing of the danger, would fail to warn about it? The courts
could see no defenses that would protect the manufacturer
from liability in such a scenario, and thus began the retreat
from strict products liability.
The New Jersey Supreme Court’s highly disingenuous
opinion in Feldman exemplifies the dismay of the courts when
confronted with the fruition of their adoption of strict products
liability, and the possibility that a manufacturer might have no
defenses when charged with failing to warn of an unknowable
danger. In design cases, the manufacturer can argue with at
least a chance of success that the product, dangers aside,
passes a risk-utility test. This is the case when a product has a
high utility and cannot be made safe. The idea that there are
reasonably dangerous products comes as a corollary to the idea
that some products are unreasonably dangerous. Any product
that is dangerous, but whose utility outweighs its dangers, is
nondefective. As mentioned in Part I, examples include knives,
automobiles (with available safety technology), and ladders
(ditto). A product whose dangers cause it to fail a risk-utility
test, like a sander without teeth, is defective.
The problem in warning cases is that the risk-utility
calculus is different than in design cases. A challenged design
may pass a risk-utility test because its design cannot be altered
in such a way as to reduce or eliminate the danger. Warnings,
however, are both inexpensive and easy to include with or on a
product, at least in theory. A product with a warning will
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inevitably be safer than a product without one,92 and it seems
easy, at least with hindsight, to conclude that the product
should have contained a warning. Courts, egged on by
defendants, concluded that factfinders would reason as follows:
1. The product was dangerous, even though the
manufacturer did not know of the danger.
2. Knowledge of the danger is imputed to the
manufacturer.
3. Any reasonable person knowing of the danger would
have put a warning of the danger onto the product.
4. There was no warning on the product.
5. Therefore, the product was defective and the
manufacturer is liable.
Thus, courts decided that imputing knowledge of the
danger to the manufacturer was inappropriate, because the
imputation would lead to automatic liability in failure to warn
cases.
In design defect cases, manufacturers can defend
themselves by arguing that the danger (knowledge of which is
imputed) was not curable, at least not without destroying the
product or rendering it useless or prohibitively expensive, and
thus that there was no feasible alternative design. The product
may pass a risk-utility test in the absence of an ability to
eliminate or reduce the dangers, meaning that the product,
although dangerous, was reasonably so given the “state of the
art” of the technology at the time it was released, and therefore
was not defective.93 This “state of the art” defense applies solely
to design cases. No truly analogous defense is immediately
apparent in warning cases: there is nothing uninventable about
a warning, and it is almost always possible to convey one,
(although perhaps not a useful one). The Feldman court viewed
unknowability in warning cases as analogous to the lack of
ability to make a safer product in design cases, concluding that
unknowability should be a defense in failure to warn cases.94
92
At the very least, a warning will inform the consumer about dangers in the
product, and, if these dangers are unavoidable, permit an informed choice as to use of
that product.
93
This is not the same as requiring an alternative feasible design for the
product. The product is still tested under a risk-utility standard, but it must pass or
fail that test as it is, in the absence of an alternative feasible design.
94
This is what the court must have meant when it said “similarly, as to
warning[] [cases].” Feldman v. Lederle Labs., 479 A.2d 374, 386 (N.J. 1984). See also
Becker v. Baron Bros., 649 A.2d 613, 616-17 (N.J. 1994), in which the court analogized
the state-of-the-art defense in warning cases to the risk-utility arguments of design
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Other courts were all too eager to adopt the state of the art
defense in its warning cases guise, pursuant to which the
defendant would be allowed to argue that it was not feasible to
warn of the danger because the danger was unknowable. This,
of course, created a defense to strict products liability,
effectively eliminating the aspect that set it apart from
negligence-based liability in the first place. The only distinction
that remained was the allocation of the burden of proof.
The courts that embraced this analogy—that feasible
alternative design is to design defect as knowability of danger
defense is to failure to warn cases—missed the point of strict
products liability completely. Not only did this result leave
plaintiffs paying for injuries caused by manufacturers, it also
provided support for an unworkable analogy. Courts forgot the
most important part of strict products liability: the risk-utility
test. A dangerous product is not necessarily defective: it is only
defective if its risk is higher than its utility. Many of the
products that courts ruled defective in the absence of warnings
might not have been ruled defective at all, because their utility
might well have outweighed their dangers, even without a
warning. The dangerous aspect of the product must have also
caused injury, another aspect of strict products liability
neglected by the courts, at least in this context. If the presence
of a warning on a product would not have affected the use to
which the consumer put that product, then it is not defective
for failure to warn. Therefore, whether an injury was
“discoverable” at the time of manufacture should have no
bearing on whether the benefit of the product outweighs its
risk, and should not provide a defense. Such a determination is
completely irrelevant to defect.
A better analogy appears in the realm of informed
consent. The question in informed consent is: would a
reasonable patient, knowing of the undisclosed risk, have
elected the procedure anyway? The answer to this question is
often “yes.” For example, the plaintiff sues when he or she
develops polio after being vaccinated or after being exposed to
someone who was. The risk of developing polio from the vaccine
was not disclosed to the patient. Would a reasonable person,
knowing of the risk, have undergone the vaccination anyway?
It is perfectly possible that the answer to this is yes, and may
defect.
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even be “yes” as a matter of law.95 In fact, many informed
consent cases founder on precisely this causation shoal.96
Analogously, a court can decide that a product is not defective
as a matter of law, if there is a risk that a jury will impose
liability for a reasonably dangerous product.97
The risk-utility test and causation standards generate
two defenses in strict products liability cases. The first is the
argument that the product, even without a warning, was not
defective. Of course, having a warning would have been better,
but its absence might not make the product defective because
the product, even without a warning, might be of such high
utility that the failure to warn pales in significance. The second
is the argument that the plaintiff=s decision to use the product
did not depend on the warning. Had the plaintiff been warned,
he or she would have used the product anyway. The absence of
the warning does not make the product defective unless the
product without the warning fails a risk-utility test and the
absence of the warning affected the plaintiff=s decision to use
the product in the first place.
The irony of the demise of strict products liability, then,
is that all this retreating was unnecessary. It centered on a
fundamental mistake, an idea that defendants and many
scholars were able to sell to the courts. This idea was that
holding manufacturers strictly liable for failing to warn of
unknowable dangers was tantamount to absolute liability and
liability without defect. Manufacturers persuaded the courts
that they would be irretrievably damaged and unfairly affected
by such “absolute” liability. It is, after all, impossible to warn of
an unknowable danger.
Thus, the courts were frightened into believing that
liability for unknowable dangers was a form of absolute
liability: liability without defect. They were encouraged in this
belief by legions of articles, many authored by extremely
distinguished law professors, many of whom had, from the
start, opposed liability without fault,98 who successfully
95
See Reyes v. Wyeth Labs., 498 F.2d 1264 (5th Cir. 1974).
See Pauscher v. Iowa Methodist Med. Ctr., 408 N.W.2d 355, 362 (Iowa
1987) (holding that since informing the patient about a remote risk of death would not
have affected her decision whether to undergo the procedure, the failure to inform the
patient of the risk was not causally linked to her death).
97
See Jordan v. K-Mart Corp., 611 A.2d 1328, 1331-32 (Pa. Super. Ct. 1992)
(holding the sled is dangerous but not defective).
98
See, e.g., John L. Diamond, Eliminating the “Defect” in Design Strict
Products Liability Theory, 34 HASTINGS L.J. 529 (1983); James A. Henderson, Jr. &
96
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persuaded the courts that liability for unknowable dangers was
absolute, and unfair, liability. The syllogism worked like this:
1. Strict products liability had never been intended to
impose absolute liability.
2. Liability for unknowable dangers was liability
without defect, and therefore absolute.
3. Strict products liability should not impose liability
for unknowable dangers.
Understandably, the vast majority of courts, when
confronted by the issue as presented above, ruled that
manufacturers were not liable for unknowable dangers. This
process was perhaps assisted by the fact that the opinions in
which the original tests for defect had been developed all
involved products with eminently knowable dangers. Thus, the
courts were not only willing to reject what had been
conceptualized as absolute liability, they were able to do so
without disturbing precedent, using lack of knowability as a
means of distinguishing the case before them from prior cases
under § 402A.
The flaw in this analysis is that liability for failing to
warn requires that the product be defective in order for the
manufacturer to be held liable, an aspect ignored by those who
argue that liability for failing to warn of unknowable dangers is
absolute. Liability for unknowable dangers is liability without
defect if and only if defect is defined as including only
foreseeable (knowable) dangers. The original tests for defect, of
course, included no such requirement. All of the tests defined
defect in what came to be viewed as risk-utility terms. In other
words, a product is defective if it fails a risk-utility test, no
matter who knew what, when, about the product. A
manufacturer will not be liable for dangerous products, only for
defective ones. Liability is only absolute if the manufacturer is
held liable for all injuries caused by a dangerous product; it is
not absolute if the manufacturer is held liable only for all
injuries caused by a defective product.
Aaron D. Twerski, Closing the American Products Liability Frontier: The Rejection of
Liability Without Defect, 66 N.Y.U. L. REV. 1263; James A Henderson, Jr. & Aaron D.
Twerski, Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn,
65 N.Y.U. L. REV. 265 (1990); John W. Wade, On the Effect in Product Liability of
Knowledge Unavailable Prior to Marketing, 58 N.Y.U. L. REV. 734 (1983). For a more
complete listing of articles written by Henderson and Twerski see Jerry J. Phillips,
Achilles’ Heel, 61 TENN. L. REV. 1265, 1265 n.3 (1994).
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Confusion between the concepts of dangerousness and
defectiveness fed the terror of absolute liability.99 But whether
the danger was knowable or not, no manufacturer should be
liable unless that danger made the product defective—unless
the product failed a risk-utility test. Many of the products at
issue in the courts’ retreat from strict products liability—
prescription pharmaceuticals—were probably not defective at
all, because they would have passed a risk-utility test with or
without a warning. But since the courts were muddled about
the difference between dangerousness and defectiveness, they
never performed any kind of risk-utility test on these products,
preferring instead to dismiss the cases on the ground that
manufacturers could not be found liable for failing to warn of
unknowable dangers.
It is perhaps worth reiterating that no court in the
process of the retreat pointed out that the danger had been
unknown to the consumer as well, and that their refusal to
impose liability left the costs on the consumer. Refusing to hold
manufacturers liable does not make the costs go away; it
simply imposes them on someone else. Emphasizing the need
for an uninhibited pharmaceutical industry allowed courts to
sacrifice individual plaintiffs for the greater good, without
analyzing whether liability was appropriate in the first place.100
In many cases, the drug would probably have passed a riskutility test, perhaps as a matter of law; alternatively, the
plaintiff might have been unable to show that the presence of a
warning would have had an impact on the plaintiff=s conduct.
In order to avoid imposing liability for dangerous, but
non-defective products, courts, encouraged by various
academics and economic recessions,101 discarded strict products
liability altogether. As I have said in earlier articles, the
requirement that the danger be foreseeable basically
eliminates liability without negligence: if the danger were
foreseeable, the manufacturer who fails adequately to perform
a risk-utility test on the product was negligent in its design
99
See Ellen Wertheimer, The Smoke Gets in Their Eyes: Product Category
Liability and Alternative Feasible Designs in the Third Restatement, 61 TENN. L. REV.
1429, 1441 (1994) (“‘[D]angerousness’ represents a factual characteristic of a product,
while ‘defectiveness’ is a legal conclusion about that product.”); Empire, supra note 34,
at 1187 (concluding that defectiveness liability is about responsibility rather than
blame).
100
There was also no empirical evidence that pharmaceutical companies were
in fact inhibited by strict products liability.
101
See RAHDERT, supra, note 93, at 159-61.
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and/or marketing. In other words, under this theory of
foreseeability a product is defective when the manufacturer has
acted unreasonably in the face of a known danger. This is
negligence, not strict products liability.
It also follows that if, as many courts state, imputing
knowledge of the danger is the hallmark of strict products
liability, reinstating the requirement that the danger be
foreseeable eliminates the imputation of knowledge in all cases
in which the imputation is result determinative. This includes
all cases where the danger was unknowable at the time of
manufacture. With this approach, plaintiffs will lose all cases
involving unknowable dangers. They can win all others under a
negligence theory, and the availability of a strict liability
theory will not determine the result.
III.
THE THIRD RESTATEMENT AND THE RESPONSE
As predicted, the Third Restatement codified the
abolition of the imputation of knowledge by defining defects in
terms of foreseeable risks.102 This, of course, does away with
liability for unknowable dangers in all circumstances. The
Third Restatement also established a risk-utility test as the
sole criterion for defect, eliminating any consumer expectation
test from the definition of defect, and it added the requirement
that the plaintiff prove a reasonable alternative design as a
“centerpiece.”103 As Professor Owen observed:
102
RESTATEMENT (THIRD) OF TORTS § 2 (1998). This section provides, in
relevant part:
Categories of Product Defect
A product is defective when, at the time of sale or distribution, it
contains a manufacturing defect, is defective in design, or is
defective because of inadequate instructions or warnings. A
product:
....
(b) is defective in design when the foreseeable risks of harm posed
by the product could have been reduced or avoided by the adoption
of a reasonable alternative design by the seller or other distributor,
or a predecessor in the commercial chain of distribution, and the
omission of the alternative design renders the product not
reasonably safe;
(c) is defective because of inadequate instructions or warnings when
the foreseeable risks of harm posed by the product could have been
reduced or avoided by the provision of reasonable instructions or
warnings by the seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of the
instructions or warnings renders the product not reasonably safe.
103
See RESTATEMENT (THIRD) OF TORTS § 2(b) (1998); Frank J. Vandall, The
Restatement (Third) of Torts: Products Liability Section 2(b): The Reasonable
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The requirements of “foreseeability” and “reasonableness” in
subsections 2(b) and 2(c) effectively reconvert the products liability
standard for these types of cases to one of negligence—a rather
remarkable retreat from section 402A=s explicitly “strict” standard of
liability of the Second Restatement that most courts boldly
purported to apply to design and warnings cases for thirty years.
Thus, . . . subsections 2(b) and 2(c) of the Third Restatement
abandon the strict liability concept and employ negligence principles
in design and warnings cases.104
The use of the word “purported” by Professor Owen is
particularly relevant, given that courts had whittled away at
the imputation of knowledge and the consumer expectation test
over the years. The Third Restatement, however, made it
impossible for courts to ignore what they had done, and many
did not like what they saw.105
In one of the supreme ironies of modern tort
jurisprudence, upon meeting the Third Restatement, many
courts took a step back from what they had cavalierly
accomplished in abolishing the imputation of knowledge of
unknowable risks, and realized that there was no need to rule
out liability for such dangers. As this Part will show, many
decisions rejecting the Third Restatement and reinstating
strict products liability might have been decided differently
without it. In confronting the fact that manufacturers were
avoiding paying for injuries they caused, courts realized the
implications of requiring foreseeability, eliminating the
consumer expectation element, and demanding a reasonable
alternative design in order for liability to result. Many
rediscovered that letting manufacturers off the hook does not
make the costs go away. It simply leaves them on another
innocent party—the plaintiff. The Third Restatement sent
courts back to the roots of strict products liability, to the idea
that, as between two faultless entities, the party who caused
the injury, who designed the product, who sold it, who profited
from its availability, should pay for the injuries it caused. This
article takes the position that without its opponents pushing
Alternative Design Requirement, 61 TENN. L. REV. 1407, 1428 (1994).
104
David Owen, Products Liability Law Restated, 49 S.C. L. REV. 273, 285
(1998).
105
Some courts, of course, followed the Third Restatement, even in the face of
their own prior precedent that would have required its rejection. See Vassallo v. Baxter
Healthcare Corp., 696 N.E.2d 909, 910 (Mass. 1998) (rejecting earlier Massachusetts
law to follow Third Restatement).
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too far, too fast, this resurgence in strict liability might never
have happened.
The Third Restatement tried to transform strict
products liability into negligence—based liability in three
relevant respects: unknowable dangers, consumer expectation,
and the reasonable alternative design requirement. The first,
liability for unknowable dangers, was eliminated by requiring
foreseeability of danger as an element of defect. The second,
consumer expectation, was eliminated by the adoption of an
exclusive risk-utility test for defect. The third, liability in the
absence of a reasonable alternative design, was eliminated by
the requirement that the plaintiff prove that the product could
have been made safer.
This article now turns to these three subjects by
examining their treatment under the Third Restatement and
subsequent court opinions addressing their role in products
liability.
A.
Unknowable Dangers
The Third Restatement requires that dangers be
“foreseeable” in both design and warning contexts before the
product can be found defective. By including foreseeability in
the definition of defect, the Third Restatement foreclosed any
liability for unknowable dangers in either the design or
warning context. The pronouncement that strict products
liability for unknowable dangers is dead may have been
premature, however. Judging from many of the opinions that
have been handed down since, the Third Restatement seems to
have constituted some sort of a wake up call, although not the
call its Reporters intended.
The Supreme Court of Wisconsin, in refusing to exempt
manufacturers from liability for unknowable dangers,
implicitly rejected the Third Restatement’s call for just such an
exemption. The court in Green v. Smith & Nephew AHP, Inc.,
pointed out that “[f]oreseeability of harm is an element of
negligence. . . . In other words, strict products liability imposes
liability without regard to negligence and its attendant factors
of duty of care and foreseeability [of danger].”106 Nor does
liability for unknowable dangers constitute absolute liability:
106
629 N.W.2d 727, 745-46 (Wis. 2001). The use by the plaintiff must be
foreseeable, but the danger need not be. Id. at 747.
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the plaintiff must prove the product defective as well as
dangerous.107
It is perfectly correct to argue that the products liability
goal of enhancing product safety is not particularly well served
(if at all) by imposing liability for unknowable dangers. But the
conclusion that this lack of congruence justifies eliminating
liability for unknowable dangers altogether only follows if
enhancing product safety is the only, or even the most
important, goal of imposing liability in the first place. The
Green court rejected this contention:
[The argument that product safety is not encouraged by liability for
unknowable dangers] focuses on one public policy underlying strict
products liability while ignoring a second, more important policy
consideration. Although products liability law is intended in part to
make products safer for consumers, the primary “rationale
underlying the imposition of strict liability on manufacturers and
sellers is that the risk of the loss associated with the use of defective
products should be borne by those who have created the risk and
who have reaped the profit by placing a defective product in the
stream of commerce.”108
The court in Green refused to allow a knowability
defense, adhering instead to a pure consumer expectation test
which does not involve examination of what the manufacturer
knew and when the manufacturer knew it.
The Green opinion is particularly noteworthy for its
detailed analysis and rejection of the defendant’s contention
that the evolution of Wisconsin law prior to Green required
that the danger be foreseeable in order for the manufacturer to
be liable for injuries caused by that danger. The defendant,
with some support, argued that earlier opinions had settled
Wisconsin law as establishing that strict product liability
would not apply in cases where “a manufacturer does not and
cannot foresee the risk of harm presented by its product.”109 The
court painstakingly analyzed away earlier opinions cited by the
defendant, reaching the conclusion that Wisconsin law did not
embody a knowability requirement.110 It further refused to
adopt the Third Restatement, which it viewed as a change to
its own law. Not only did the newest Restatement fail to serve
“the policies underlying strict products liability law,” said the
107
108
109
110
Id. at 746.
Id. at 750 (quoting Kemp v. Miller, 453 N.W.2d 872, 879 (Wis. 1990)).
Id. at 745.
Id. at 745-751.
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court, it added both the requirement that the plaintiff prove
negligence and a reasonable alternative design to the burden
on the consumer. The court refused to “impose such a burden
on injured persons.”111
The Supreme Court of Montana also refused to adopt a
knowability requirement in Sternhagen v. Dow Co.112 The court
adhered to its imputed knowledge test, stating that “[u]nder
the imputation of knowledge doctrine, which is based on strict
liability’s focus on the product and not the manufacturer’s
conduct, knowledge of a product’s undiscovered or
undiscoverable dangers shall be imputed to the manufacturer.
Our adoption of the imputation of knowledge doctrine [brings
with it a] concomitant rejection of the state-of-the-art
defense.”113
Sternhagen and Green differ from Beshada in one
important respect. Like Beshada, they impose liability for
unknowable dangers. Like Beshada, they are true to the
original formulations of the tests for defect, the imputation of
knowledge and the consumer expectation tests, respectively.
But they differ from Beshada in one important respect: timing.
They come at the end of the process of dismantling strict
products liability, not at the beginning, and represent a return
to the doctrine’s first principles. The Beshada court, writing at
the beginning of strict products liability, simply followed its
own definition of defect in imputing knowledge to the
manufacturer, refusing to create an exception for unknowable
dangers. Sternhagen and Green, on the other hand, were
written after an exception for unknowable dangers had been
created. They are all the stronger for confronting the
arguments that led to the development of the Third
Restatement, then rejecting them. Sternhagen and Green
should prove more durable than Beshada, if only because they
confront the years of backtracking and return to the doctrine’s
origins: given a choice between leaving the costs of a defective
product on an innocent consumer and placing them on the
manufacturer, the choice is clear. The manufacturer should
pay.
111
112
113
Green, N.W.2d at 752.
935 P.2d 1139 (Mont. 1997).
Id. at 1143.
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Consumer Expectation Test
The Third Restatement eliminated any consumer
expectation tests from its concept of products liability, adopting
an exclusive risk-utility test instead.114 This cleverly removed
another means by which manufacturers might be liable for
unknowable dangers, because such knowability is irrelevant to
what the consumer might or might not have expected from the
product at issue.115 Removing the consumer from the products
liability equation is highly significant, and symbolic of the
orientation of the Third Restatement towards protecting
manufacturers.116 As has been discussed above, courts that fled
from liability for unknowable dangers focused exclusively on
the impact of such liability on manufacturers, not on the
impact of non-liability on the injured consumer. It seems
appropriate that the Third Restatement, which eliminated any
liability for unknowable dangers, would also, like the courts
before it, remove the consumer from the determination of
defectiveness altogether.
Confronted by this newly imposed consumer invisibility,
and feeling a renewed need to respond to it, courts and some
legislatures have rejected removal of the consumer from the
equation. In Green v. Smith & Nephew AHP Inc., the court not
only reaffirmed its commitment to the consumer expectation
test, but also reaffirmed its commitment to the consumer
expectation test as the sole test of defectiveness, even in cases
involving open and obvious dangers and complex products, two
areas where the consumer expectation test had proved
problematic. When the danger is open and obvious, the Green
court pointed out, the product will pass a consumer expectation
test, but suit may be brought for “negligence, breach of implied
114
Vautour v. Body Masters Sports Indus., Inc., 784 A.2d 1178, 1182-83 (N.H.
2001) (stating that § 2(b) of the Restatement (Third) of Torts requires proof of a
reasonable alternative design in design cases, and pointing out that, under New
Hampshire law, proof of a reasonable alternative design is only one possible factor to
be considered under a risk-utility analysis)
115
Green, 629 N.W.2d at 742.
116
One commentator has pointed out that various sources characterize § 2(b)
of the Restatement (Third) as “a wish list from manufacturing America.” Douglas A.
Kysar, The Expectations of Consumers, 103 COLUM. L. REV. 1700, 1727 n.116 (2003)
(quoting Green v. Smith & Nephew AHP, Inc., 629 N.W.2d 727, 751 n.16 (Wis. 2001)
(quoting Frank J. Vandall, Constructing a Roof Before the Foundation is Prepared: The
Restatement (Third) of Torts: Product Liability section 2(b) Design Defect, 30 U. MICH.
J.L. REFORM 261, 261 (1997))).
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warranty, or breach of express warranty.”117 Complexity of the
product was simply irrelevant, in the court’s view, because the
issue was whether “the product falls below . . . minimum
consumer expectations,” and not the “scientific understanding
of the product itself . . . . This court frequently has upheld use
of the consumer-contemplation test in cases involving complex
products.”118 In vigorously reaffirming its commitment to the
consumer expectation test, the Green court renewed its
dedication to § 402A of the Restatement (Second) of Torts and
firmly rejected the Third Restatement’s formulations.
The Supreme Court of Kansas agreed, and in Delaney v.
Deere & Co. renewed its commitment to the consumer
expectation test by rejecting both an exclusive risk-utility
approach and the requirement of a reasonable alternative
design:
[W]e agree that as the foreword to the Third Restatement makes
clear, the new Restatement “goes beyond the law.” Hazard, Foreword
to Restatement (Third) of Torts, xv, xvi (1997). Rather than simply
taking a photograph of the law of the field, the Third Restatement
goes beyond this to create a framework for products liability. We
have examined Comment 1 and find it wanting. The adoption of
Comment 1 necessarily involves the adoption of the reasonable
alternative design standard and an exclusive risk-utility analysis of
that reasonable alternative design to determine whether the subject
product is defective. This is contrary to the law in Kansas. To
summarize the law in Kansas, whether a design defect in a products
exists is determined using the consumer expectations test.119
Other courts have come to the same conclusion. As in
Delaney, a number of courts have rejected the Third
Restatement’s reliance on a risk-utility test and its
requirement of a reasonable alternative design because these
tests reject the consumer expectation standard altogether. As
the court stated in Potter v. Chicago Pneumatic Tool Co., in the
course of rejecting the Third Restatement, “[T]he defendants
propose that it is time for this court to abandon the consumer
expectation standard and adopt the requirement that the
plaintiff must prove the existence of a reasonable alternative
design in order to prevail on a design defect claim. We decline
to accept the defendants’ invitation.”120 Unlike the court in
117
Green, 629 N.W.2d at 743.
Id. at 742.
119
Delaney v. Deere & Co., 999 P.2d 930, 946 (Kan. 2000).
120
694 A.2d 1319, 1331 (Conn. 1997). See also Delaney v. Deere & Co., 999
P.2d 930, 945 (Kan. 2000) (The Kansas Supreme Court Justices stated: “However,
118
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Green, however, the Potter court did not view consumer
expectation as the sole test of defectiveness:
Although today we adopt a modified formulation of the consumer
expectation test, we emphasize that we do not require a plaintiff to
present evidence relating to the product’s risks and utility in every
case. . . . [T]he ordinary consumer expectation test is appropriate
when the everyday experience of the particular product’s users
permits the inference that the product did not meet minimum safety
expectations. Conversely, the jury should engage in the risk-utility
balancing required by our modified consumer expectation test when
the particular facts do not reasonably permit the inference that the
product did not meet the safety expectations of the ordinary
consumer.121
Refusing to adopt § 6(c) of the Third Restatement, and
salvaging consumer expectation as an important part of
products liability, another court remarked:
Next, defendant asks us to adopt section 6(c) of the Restatement
(Third) of Torts: Product liability. That section provides:
A prescription drug or medical device is not reasonably safe
due to defective design if the foreseeable risks of harm posed
by the drug or medical device are sufficiently great in
relation to is foreseeable therapeutic benefits that
reasonable health-care providers, knowing of such
foreseeable risks and therapeutic benefits, would not
prescribe the drug or medical device for any class of
patients.
This section completely eliminates appraisal of the
consumer’s expectations from determination of whether a
medical device is unreasonably dangerous. Thus, the section
conflicts with Illinois law.
Moreover, the section provides manufacturers with virtual
immunity from liability for all medical products. Even when
Kansas has consistently held that evidence of a reasonable alternative design may but
is not required to be introduced in a design defect action. Kansas has not used the
concept of reasonable alternative design to become the standard by which the
questioned product is measured.”) (internal citation omitted); Couch v. Mine Safety
Appliances Co., 728 P.2d 585, 586 (Wash. 1986) (holding that the availability of a
reasonable alternative design is “not a necessary element of a plaintiff’s burden” in a
defective design action).
In all fairness, it must be said that the Potter court did not include liability
for unknowable dangers within the scope of strict products liability, ruling that
manufacturers could only be liable for knowable dangers. Potter, 694 A.2d at 1328-29.
The dangers in that case, however, were not unknowable. Id. at 1326. Potter also
indicated that there might be cases involving complex products in which consumer
expectation would not be an appropriate test because “an ordinary consumer may not
be able to form expectations of safety.” Id. at 1333.
121
Potter, 694 A.2d at 1335 (citations omitted).
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doctors discover unexpected injuries due to a medical device,
they may find the device useful in some extreme cases. . . .
Under section 6(c), the fact that the device remains useful
for some patients would immunize the manufacturer from
liability.
Commentators have noted that section 6(c) represents a
substantial departure from established common law
throughout the country. . . . Most courts that have
considered related provisions of the Restatement (Third)
have refused to adopt them.122
This last quotation, highly significant in terms of the
subject matter of this article, indicates that the Third
Restatement forced courts to take another look at where strict
products liability had been and where it was going. The
necessity for this reexamination was generated by Third
Faced with the total exclusion of
Restatement itself.123
consumers from products liability law, many courts rejected the
Third Restatement and adhered to the law they had developed
under the Second.
C.
Reasonable Alternative Design
The Third Restatement defines design defect in terms of
the availability of an alternative feasible design. Under the
Third Restatement, the plaintiff must prove the existence of a
122
Mele v. Howmedica, Inc., 808 N.E.2d 1026, 1038-39 (Ill. App. Ct. 2004)
(internal citations omitted).
123
For other courts and opinions rejecting the Third Restatement and
approving the consumer expectation test, see Jackson v. Gen. Motors Corp., 60 S.W.3d
800, 802 (Tenn. 2001) (reaffirming that, under Tennessee law, the consumer
expectation test “is applicable to any products liability claim where the plaintiff
intends to show that a manufacturer is liable for plaintiff’s injuries as a result of an
unreasonably dangerous product”); Hiner v. Deere & Co., 340 F.3d 1190, 1197 (10th
Cir. 2003) (affirming that the Kansas courts will continue to use the consumer
expectation test as laid out in § 402A of the Restatement (Second) of Torts in defective
design claims); Haddix v. Playtex Family Prods. Corp., 138 F.3d 681, 683-84 (7th Cir.
1998); McCoy v. Whirlpool Corp., Nos. 02-2229-KHV, 02-2230-KHV, 02-2231-KHV,
2003 U.S. Dist. LEXIS 11712, at *20-21 (D. Kan. July 8, 2003) (reiterating this point);
Murphy v. Playtex Family Prods. Corp., 176 F. Supp. 2d 473, 486-87 (D. Md. 2001)
(adopting the reasoning of the Seventh and Ninth circuits in Haddix and Papike). In
Haddix, the court cited with approval the holding in Papike v. Tambrands, Inc., 107
F.3d 737 (9th Cir. 1997), and held that the risk of contracting Toxic Shock Syndrome
was within an ordinary consumer’s knowledge and so, even though the jurisdiction
allows for use of either the consumer expectation test or the risk-utility test, in
defective design cases where you have “a simple product which poses an obvious
danger” the risk-utility test is inapplicable and the consumer expectation test must be
applied. Haddix, 138 F.3d at 684, 686.
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931
reasonable alternative design in order to show that the
product’s design was defective.
Ironically, the trend toward incorporating risk-utility
analysis into a consumer expectation test with the goal of
broader protection in cases of obvious product danger
metamorphosed into the Third Restatement’s abolition of the
consumer expectation test, with its alternative goal of
shrinking consumer protection. “Substitution of a risk-utility
analysis, however, especially as formulated in the Restatement
(Third), has attracted considerable criticism and has been
viewed as a retrogression, as returning to negligence concepts
and placing a very difficult burden on plaintiffs.”124 The
Supreme Court of Kansas reacted with horror to the Third
Restatement’s requirement of a reasonable alternative design:
The Third Restatement’s requirement that a plaintiff produce a
reasonable alternative design has been harshly criticized. See
Vargo, The Emperor’s New Clothes: The American Law Institute
Adorns a “New Cloth” for Section 402A Products Liability Design
Defects—A Survey of the States Reveals a Different Weave, 26 U.
MEM. L. REV. 493 (1996); Frank Vandall, State Judges Should Reject
the Reasonable Alternative Design Standard of the Restatement
(Third), Products Liability, Section 2(b), 8 KAN. J.L. & PUB. POL’Y 62
(1998); Westerbeke, The Reasonable Alternative Design Requirement,
8 KAN. J.L. & PUB. POL’Y 66 (1998). Vandall states that the
reasonable alternative design requirement is not supported by public
policy or economic analysis because the cost of processing a case will
make it economically impossible to produce a reasonable alternative
design in a small products liability case. 8 KAN. J.L. & PUB. POL’Y at
63. Further, contrary to the view of the authors of the Third
Restatement that the majority of states require a reasonable
alternative design to establish a design defect, research by John F.
Vargo indicates that very few states in fact have this requirement.
See 26 U. MEM. L. REV. at 550-553. Vargo, in his exhaustive review,
examines the Restatement (Third) of Torts’ claim that “reasonable
alternative design” is the majority rule in this country and concludes
that, far from a majority rule, only three states require a reasonable
alternative design and five do so by statute. See Appendix IV and
related textual support for author’s conclusions, 26 U. MEM. L. REV.
at 951, 501-951.125
124
Halliday v. Sturm, Ruger & Co., 792 A.2d 1145, 1154 (Md. 2002). The court
further pointed out that, despite efforts by the Reporters of the Third Restatement to
portray this as the majority view, it was unclear that most courts would agree with this
position, and, “to the extent that it is shared, it has been criticized as representing an
unwanted ascendency of corporate interests under the guise of tort reform.” Id. at
1154-55.
125
Delaney v. Deere & Co., 999 P.2d 930, 945-46 (Kan. 2000).
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The goal of requiring a reasonable alternative design
was clearly retrogressive. Under this standard, manufacturers
would never be liable unless the product could have been made
safer. In other words, there would be no such thing as a
product that was unavoidably dangerous and defective. Under
the Third Restatement, manufacturers would only be liable for
products with curable dangers, and never for product designs
that could not be changed to reduce or eliminate hazards.
This shift in focus to protecting manufacturers is all the
more pernicious because strict products liability was developed
to protect consumers.126 The focus should be on the injured
consumer and the product that caused the injury, and not on
the manufacturer’s conduct. Focus on the manufacturer’s
conduct amply appears in negligence based doctrine, but strict
products liability was supposed to be something else.
Faced with the Third Restatement, however, courts
have realized that products liability doctrine is at risk of losing
the attributes that led to its development in the first place. In
few contexts is this clearer than in that of prescription drugs.
Section 6(c) of the Third Restatement pronounces that a
prescription pharmaceutical is only defective if no doctor would
ever prescribe it to any “class of patients” for any condition. It
is highly unlikely that any plaintiff could ever meet this burden
of proof, as it is hard to imagine a drug that has passed
through the FDA processes and is not useful to any patient
whatsoever. As one court pointed out:
The Third Restatement was intended as “a complete overhaul” of the
Second Restatement. These changes have garnered substantial
criticism. In particular, 6(c) has been criticized for its failure to
reflect existing case law, its lack of flexibility with regard to drugs
involving differing benefits and risks, its unprecedented application
of a reasonable physician standard, and the fact that a consumer’s
claim could easily be defeated by expert opinion that the drug had
some use for someone, despite potentially harmful effects on a large
class of individuals. To date, no court has adopted the Third
126
See Andrew F. Popper, Tort Reform Policy More Than State Law
Dominates Section 2 of the Third Restatement, 8 KAN. J.L. & PUB. POL’Y 38, 40 (1999):
Controversy happens when you deal with a product that is made by a
company that is not negligent and the product ends up killing people, and
there is no readily available alternative, or the cost of producing an available
alternative is prohibitive. In that area, the Restatement fails you, as judges,
and, more importantly, fails the public.
Id. at 41.
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Restatement’s strict liability test for prescription drugs, and one
court has explicitly refused to adopt the test.127
The Third Restatement thus brought out in the codified open
what courts had been comfortable doing on a case by case basis.
Eliminating the consumer expectation test in favor of a
risk utility test is one thing when its dilution is designed to
further the goal of consumer protection, as was the case when
it was modified so as to avoid precluding liability for open and
obvious hazards. It is quite another when the goal of its
abolition is to protect manufacturers, a goal that becomes
patently clear when the risk-utility test is coupled with the
requirement of a reasonable alternative design. In Vautour v.
Body Masters Sports Industries, the court pointed out that
adopting a risk-utility test did not automatically mean that the
plaintiff had to prove a reasonable alternative design. “The
plaintiffs’ burden was to present evidence regarding the riskutility factors; they did not have the duty of proving a safer,
alternative design.”128 Risk-utility tests can exist in the absence
of a reasonable alternative design requirement, and “the rigid
prerequisite of a reasonable alternative design places too much
emphasis on one of many possible factors that could potentially
affect the risk-utility analysis.”129 Requiring a reasonable
alternative design simply brought the goal of deterring
lawsuits out in the open. The Vautour court decided that “the
risk-utility test as currently applied protects the interests of
both consumers and manufacturers in design defect cases, and
we decline to adopt section 2(b) of the [Third] Restatement.”130
There has been considerable controversy surrounding the adoption of
Restatement (Third) of Torts § 2(b). Most of the controversy stems
from the concern that a reasonable alternative design requirement
would impose an undue burden on plaintiffs . . . . Commentators
have noted that for suits against manufacturers who produce highly
complex products, the reasonable alternative design requirement
will deter the complainant from filing suit because of the enormous
costs involved in obtaining expert testimony. Thus, because of the
increased costs to plaintiffs of bringing actions based on defective
product design, commentators fear that an alternative design
requirement presents the possibility that substantial litigation
127
Bryant v. Hoffman-La Roche, Inc., 585 S.E.2d 723, 727 (Ga. Ct. App. 2003)
(internal citations omitted).
128
784 A.2d 1178, 1184 (N.H. 2001).
129
Id.
130
Id.
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expenses may effectively eliminate recourse, especially in cases in
which the plaintiff has suffered little damage.131
The Sternhagen court likewise refused to adopt the
Third Restatement=s requirement of a reasonable alternative
design, comprehensively rejecting the Third Restatement on
several grounds simultaneously:
We decline to extend [the requirement of a reasonable alternative
design] to cases where alternative designs did not exist and a
product’s dangers were undiscovered or undiscoverable at the time of
manufacture. If we were to do so, we would inject negligence
concepts into Montana’s strict products liability law and eviscerate
the public policy underlying strict products liability law in this
State.132
Injecting negligence concepts into strict products
liability law was, of course, precisely the goal of the Third
Restatement. Indeed, as the courts point out, there is nothing
left of strict products liability under the Third Restatement.
IV.
CONCLUSION: THE BITER BIT
The Third Restatement forced courts to confront their
own roles in eliminating protections for injured plaintiffs and
the potential for further harm the Restatement’s ratification
could create. It is this recognition of the doctrine’s erosion and
the resultant need to confront it that has caused, even
compelled courts—to return to strict products liability. Once
the changes that had gradually been made under § 402A were
openly accepted, courts recognized how far strict products
liability had strayed from its origins and goals, and realized
that the Third Restatement was at risk of abolishing it
altogether. For the same reasons that strict products liability
was originally adopted, the courts are now in the process of
reaffirming their commitment to retaining—or reinstating—
the doctrine.133
The Third Restatement did one of two things in every
jurisdiction in which it was invoked. In some jurisdictions, it
codified the law as it had developed over the years, with
rejection of liability for unknowable dangers, elimination of the
consumer expectation test, and a requirement of a reasonable
131
132
133
Id. at 182-83 (internal citations omitted).
Sternhagen v. Dow Co., 935 P.2d 1139, 1147 (Mont. 1997).
Delaney v. Deere & Co., 999 P.2d 930, 946 (Kan. 2000).
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alternative design. This forced courts in those jurisdictions to
confront the fact that strict products liability had been
incrementally eroded almost to the point where it had ceased to
exist. In other jurisdictions, it provided courts with a view of
strict products liability in contrast to the current one in place.
This led courts to reexamine their prior law, developed under
the Second Restatement, and in some cases, to reaffirm their
commitment to that law. In providing a mirror for examination
of strict products liability law, the Third Restatement
frequently stood up poorly to the challenge of the Second,
leading courts to take positions contrary to those expressed in
the Third. Those advocating abandoning strict products
liability might have done better to leave it alone, allowing the
incremental process to continue its work.
In short, the Third Restatement made explicit what
courts had implicitly been doing in ruling that manufacturers
would not be liable for failing to warn of unknowable dangers,
for design defects in the absence of an alternative feasible
design, or for products that failed consumer expectation tests.
In this very explicitness lay the seeds of a renewal for strict
products liability. Courts, more comfortable with exempting
manufacturers from liability for products that failed a riskutility test on a case by case basis, had to confront the blanket
nature of manufacturer exemption from liability for injuries to
consumers who (like the manufacturers) could not avoid injury
but who (unlike the manufacturers) were not responsible for
and did not profit from the availability of the product. Faced
with an uncompromising rule, courts, like the Sternhagen
court, have come to recognize the fundamental unfairness of
exempting manufacturers from paying for the injuries their
products caused. Strict products liability has returned, and we
ironically owe this return to the Third Restatement.
What the Third Restatement did was prove too much.
The pro-defendant trend, which the Third Restatement
attempted to codify and encourage, had occurred, where it
existed, without close scrutiny. It happened gradually, and in
small steps that allowed courts to avoid confronting the plight
into which consumers were being cast by their rulings. But
turning this incremental phenomenon into a rule, as the Third
Restatement did, pushed the courts too far and to hard down
the slippery slope. It meant that the courts could no longer
ignore what their own rulings had so subtly accomplished. It
has also caused the re-examination of the ALI as an
appropriate policy-making entity, leading to questions about
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whether the ALI is any more qualified to make policy than the
courts.134
It is, of course, true that in the process of ruling in
individual cases the courts were making bad law. A prime
example is the rule that manufacturers could not be liable for
failing to warn of unknowable dangers. The breadth of these
rulings is breathtaking. But the route to liability through later
distinctions between cases remained open. Feldman could
pretend it was not overruling Beshada, and Brown could
pretend it was limited to prescription pharmaceuticals, leaving
its extension to all products to Anderson. In a common law
area, distinguishing earlier precedent to achieve a different
result is itself an art. But when the rule is codified, such
distinctions are no longer so easy to draw, ignore, or rationalize
away.
When the courts were faced with the Third
Restatement, they were taken back to the days before strict
products liability, when all agreed that consumers needed
protection from dangerous and defective products, protection
that negligence standards could not supply. The rationale
behind strict products liability was that manufacturers should
be liable, even in the absence of negligence, because it was
appropriate that manufacturers compensate equally innocent
plaintiffs for injuries caused by defective products. Instead of
adopting the Third Restatement, many courts have returned to
the idea that gave birth to strict products liability in the first
place: as between innocent plaintiffs and innocent
manufacturers, the manufacturers should pay for the injuries
caused by their defective products.
The causal link between the Third Restatement and the
renewal of strict products liability cannot be directly proven.
Rather, circumstantial evidence leads to the conclusion that
the Third Restatement, far from promoting the retreat from
strict products liability, has caused its revival. First, opinions
like Sternhagen carefully analyze the Third Restatement,
making explicit exemptions that had earlier been implicit or
disguised in opinions that rejected liability for unknowable
dangers. Second, it seems unusual that the revival of strict
products liability should occur in today’s world, where
134
See Marshall S. Shapo, Products Liability: The Next Act, 26 HOFSTRA L.
REV. 761, 766 (1998) (“[T]he processes of the ALI may have no comparative advantage
with political institutions in making choices among political arguments.”).
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conservatism is rampant and corporations are more powerful
than ever. The recessions of the 1980s allowed corporations to
cry poverty and persuade courts to rule in their favor, cutting
back on laws that would have led to liability. The market
failures of this decade should, at least in theory, produce the
same results. The factor that differentiates this era from the
1980s, however, is the very presence of the Third Restatement.
Third, for lack of any other reason that would explain
Sternhagen and its progeny other than the Third Restatement,
I am left with a res ipsa loquitur of causation argument: post
hoc, ergo propter hoc.
3/9/2005 2:46:20 PM
A Fictional Tale of Unintended
Consequences
A RESPONSE TO PROFESSOR WERTHEIMER
*
James A. Henderson, Jr.†
Aaron D. Twerski‡
Professor Wertheimer has provided a provocative
article,1 an ironic tale of unintended consequences. She claims
that, prior to the Products Liability Restatement, American
courts rejected the notion that manufacturers should be held
liable for not designing or warning against unknowable product
risks. In similar fashion, pre-Restatement case law insisted
that design defect claims be judged by a negligence-like riskutility balancing test. She acknowledges that the Restatement
accurately reflects the law on both of these issues. But here is
the rub. Wertheimer claims that the Restatement, by firmly
taking the majority position on these issues, inadvertently
served as a wake-up call to American courts, reminding them
that they had abandoned the true religion of strict liability and
had slipped back to negligence norms. This, she says, has
resulted in a post-Restatement backlash with courts scurrying
back to implement true strict liability. By accurately describing
what courts had been doing, the Restatement is having exactly
*
© 2005 James A. Henderson, Jr. & Aaron D. Twerski. All Rights Reserved.
Frank B. Ingersoll Professor of Law, Cornell Law School. A.B. 1959,
Princeton University; L.L.B. 1962, L.L.M. 1964, Harvard University
‡
Newell DeValpine Professor of Law, Brooklyn Law School. A.B. 1962, Beth
Medrash Elyon Research Institute; B.S. 1970, University of Wisconsin-Milwaukee, J.D.
1965, Marquette University.
1
See Ellen Wertheimer, The Biter Bit: Unknowable Dangers, The Third
Restatement, and the Reinstatement of Liability Without Fault, 70 BROOK. L. REV. 891
(2005).
†
939
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the opposite effect from what its supporters anticipated. Talk
about unintended consequences!
We are gratified that Professor Wertheimer confirms
that the Restatement captures the thrust of developing case
law. That is what it is supposed to do. However, the rest of her
story about a backlash taking place in the courts is pure fiction.
Make no mistake—Professor Wertheimer would very much like
such a palace revolt to occur. But it has not happened and will
not take place in the future. The positions that Professor
Wertheimer and a few others have advocated for years have,
for good reason, been rejected by the overwhelming majority of
courts and scholars.
I.
IMPUTATION OF KNOWLEDGE OF UNKNOWABLE RISKS
The view that foreseeability of risk should be irrelevant
as to whether a manufacturer should bear liability for defective
design and failure to warn was the subject of short-lived but
serious debate early in the products liability era.2 However,
when actually faced with the question of whether to hold a
manufacturer liable for scientifically unknowable risks, court
after court has said “No.”3 Wertheimer cites two cases to
support her view that a revolt on this issue is afoot—one from
Wisconsin4 and the other from Montana.5 Wisconsin has long
been the lone star state in our products liability law, marching
to its own, sometimes quite peculiar, drummer.6 The Montana
court acknowledges that it rejects both Section 402A and the
Third Restatement.7 On the other side of the issue, Wertheimer
does admit in a footnote that Massachusetts, relying on the
2
See generally Symposium, The Passage of Time: The Implications of
Product Liability, 58 N.Y.U. L. REV. 733 (1983).
3
For a comprehensive discussion of the development of the case law and
academic commentary, see RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 2 cmt. m
and reporters’ notes at 101-07 (1998).
4
Green v. Smith & Nephew AHP, Inc., 629 N.W.2d 727, 743-51 (Wis. 2001).
5
Sternhagen v. Dow Co., 935 P.2d 1139, 1144-47 (Mont. 1997).
6
See, e.g., Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 360 N.W.2d 2, 12
(Wis. 1984) (finding that it was erroneous to instruct a jury in a crashworthiness case
that in order to recover, a plaintiff must have suffered injuries over and above those
that he would have sustained had the design not been defective). The Wisconsin view is
contrary to section 16 of the Product Liability Restatement and is inconsistent with the
majority of case law throughout the country. See, e.g., Trull v. Volkswagen of Am., Inc.,
761 A.2d 477, 481 (N.H. 2000). See also Greiten v. LaDow, 235 N.W.2d 677, 685 (Wis.
1975) (“[T]here may be recovery for the negligent design of a product even though it is
not unreasonably dangerous in the 402A sense.”) (erroneously labeled as concurring
opinion since four members of a seven member court voted for the concurring opinion).
7
Sternhagen, 935 P.2d at 1142, 1147.
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941
Products Liability Restatement, recently reversed its earlier
position applying strict liability without foreseeability.8 But she
does not tell the reader that in doing so the court said that it
had been “among a distinct minority of States that applies a
hindsight analysis to the duty to warn. . . . The goal of the law
is to induce conduct that is capable of being performed. The
goal is not advanced by imposing liability for failure to warn of
risks that were not capable of being known.”9
Professor David Owen in his excellent new hornbook on
the law of Products Liability puts the issue nicely. He says that
“but for a few rogue jurisdictions, American products liability
law, like the law of most of Europe and Japan, no longer holds
manufacturers responsible for unknowable product risks. The
rise and fall of the duty to warn of unforeseeable hazards has
played a decisive role in the more general rise and fall of ‘strict’
products liability in America . . . .”10 A decision from a renegade
jurisdiction and another from a court that rejects both the
Second and Third Restatement do not constitute a revolt. They
represent hardly a ripple in literally an ocean of authority to
the contrary.
II.
RISK-UTILITY V. CONSUMER EXPECTATIONS AS THE TEST
FOR DEFECTIVE DESIGN
It is no surprise that Professor Wertheimer is a fan of
the consumer expectations test and views the Restatement
requirement that in most cases plaintiff must establish a
reasonable alternative design as reneging on the promise of
true strict liability. The support for her position is terribly thin.
First, she argues that rejecting consumer expectations as an
independent grounds for establishing liability in design defect
cases was a clever method of insulating manufacturers from
liability for unknowable risk. One would think that any fair
application of the consumer expectations test would have
pointed in the opposite direction. Consumers would be hard put
to demonstrate an expectation that a product would protect
against risks that were unknowable or would incorporate
alternative designs that were not contemplated by any
manufacturer at the time of sale. Indeed, a rather famous early
8
Wertheimer, supra note 1, at 911 n.68 (citing Vassallo v. Baxter
Healthcare Corp., 696 N.E.2d 909, 910, 922-23 (Mass. 1992)).
9
Vassallo, 696 N.E.2d at 922-23.
10
DAVID G. OWEN, PRODUCTS LIABILITY LAW § 10.4, at 700 (2005).
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consumer expectations case took that very position. In Bruce v.
Martin-Marietta Corp.,11 an airplane manufactured by the
defendant crashed into a mountain, causing seats in the
passenger cabin to break loose from their floor attachments
and block the exit. More than half the passengers were trapped
in the airplane and died in the ensuing fire. Although the seats
conformed to existing standards when the plane had been
manufactured seventeen years earlier, plaintiffs submitted
affidavits from a recognized expert that airplane seats in
common use on the date of the accident would have remained
in place and thus would have allowed the passengers to escape.
The court rejected the claim that a plane, sold seventeen years
before the accident, failed to meet consumer expectations for
safety. In upholding summary judgment for defendant, the
Tenth Circuit said:
A consumer would not expect a Model T to have the safety features
which are incorporated in automobiles made today . . . . Plaintiffs
have not shown that the ordinary consumer would expect a plane
made in 1952 to have the safety features of one made in 1970.12
Returning to her thesis that courts that have faced the
design defect issue post-Restatement have opted for the
consumer expectations test, Professor Wertheimer trots out
Wisconsin13 and Kansas14 as two states whose case law has
soundly rejected the Restatement test. Neither Wisconsin nor
Kansas represents a backlash to the Restatement. In our
Reporters’ Note to the Restatement, we discuss both the
Wisconsin and Kansas case law and recognize that both follow
the consumer expectations test.15 It hardly comes as a surprise
that these two states have continued their past allegiance to
that test. They certainly do not support her thesis of a
backlash. The new Restatement merely gave them a forum to
express their strong allegiance to the minority view.
Conspicuously absent from the Wertheimer article is citation to
a whole host of decisions applying risk-utility balancing and/or
the reasonable alternative design standard to design defect
11
544 F.2d 442, 447 (10th Cir. 1976) (applying Oklahoma law).
Id. at 447.
Werthemier, supra note 1, at 927-28, 929-31 (citing Green v. Smith &
Nephew AHP, Inc., 629 N.W.2d 727, 742, 743-51, 754-55 (Wis. 2001)).
14
Werthemier, supra note 1, at 931-35 (citing Delaney v. Deere & Co., 999
P.2d 930, 946 (Kan. 2000)).
15
RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 2 cmt. d and reporters’
notes at 67, 76 (1998).
12
13
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A FICTIONAL TALE OF UNINTENDED CONSEQUENCES
943
litigation in the post-Restatement era.16 In actual fact, these are
the states that had been embracing a risk-utility approach to
product design, and they have expressed no backlash sentiment
whatever. Nor is Wertheimer’s statement that the Restatement
completely eliminates consumer expectations from the test for
defective design accurate. Section 2, Comment h says quite
clearly that consumer expectations “may substantially
influence or even be ultimately determinative on risk-utility
balancing.”17 Admittedly, several states allow a two-pronged
test for defective design.18 A plaintiff can establish liability
under either consumer expectations or risk-utility. But, those
cases make it clear that the consumer expectations test can
work only when a product fails to perform its intended
function.19 When trade-offs have to be considered, risk-utility
must be employed.20 The Restatement does not disagree. It
allows a plaintiff to draw an inference of defect when common
sense indicates us that the injury would ordinarily occur as a
result of product defect.21 In short, risk-utility balancing is alive
16
See, e.g., Wankier v. Crown Equip. Co., 353 F.3d 862, 867 (10th Cir. 2003)
(applying Utah law and requiring plaintiff to prove “safer, feasible alternative design”);
Peck v. Bridgeport Machs., Inc., 237 F.3d 614, 619 (6th Cir. 2001) (applying Michigan
law and upholding summary judgment for defendant due to plaintiff’s failure to
present sufficient evidence of reasonable alternative design); Cohen v. Winnebago
Indus., Inc., 2000 WL 299459 at *4 (4th Cir. 2000) (applying South Carolina law and
holding that “providing evidence of the existence of an alternative safer, feasible design
is part of the plaintiff’s product liability case under South Carolina law); Rypkema v.
Time Mfg. Co., 263 F. Supp. 2d 687, 692 (S.D.N.Y. 2003) (“Under New York law, in a
design defect case a plaintiff is required to prove the existence of a feasible alternative
[design] which would have prevented the accident.”); Jeter ex rel. Estate of Smith v.
Brown & Williamson Tobacco Corp., 294 F. Supp. 2d 681, 686 (W.D. Pa. 2003)
(requiring plaintiff to prove “a feasible alternative design”); Jones v. Nordictrack, Inc.,
550 S.E.2d 101, 103-04 (Ga. 2001) (citing the Third Restatement § 2 and
acknowledging that under risk-utility standards, “[t]he ‘heart’ of a design defect case is
the reasonableness of selecting from among alternative product designs and adopting
the safer feasible one.”); Wright v. Brooke Group, Ltd., 652 N.W.2d 159, 169 (Iowa
2002) (adopting reasonable attempt in design standard for defective design).
17
RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 2 cmt. g (1998).
18
See, e.g., Soule v. General Motors Corp., 882 P.2d 298, 307-08 (Cal. 1994);
Potter v. Chicago Pneumatic Tool Co., 694 A.2d 1319, 1333-34 (Conn. 1997).
19
See, e.g., Soule, 882 P.2d at 307-08; Chicago Pneumatic Tool, 694 A.2d at
1333-34.
20
See, e.g., Soule, 882 P.2d at 307-08; Chicago Pneumatic Tool, 694 A.2d at
1333-34.
21
Section 3 of the Third Restatement provides:
It may be inferred that the harm sustained by the plaintiff was caused by a
product defect existing at the time of sale or distribution, without proof of a
specific defect, when the incident that harmed the plaintiff:
(a) was of a kind that ordinarily occurs as a result of product defect;
and
(b) was not, in the particular case, solely the result of causes other
than product defect existing at the time of sale or distribution.
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and well. A true consumer expectations test remains as it was,
the darling of a small minority of states.
III.
CATEGORY LIABILITY
Wertheimer saves her guns for her long-standing
concern, the rejection by the Restatement of category liability.22
By requiring proof of a reasonable alternative design, the
Restatement rejects the notion that courts should perform
macro risk-utility balancing and declare products that cannot
be made safer and whose warnings adequately portray risks
attendant to their use to be defective. She says that the goal of
requiring a reasonable alternative design was clearly
retrogressive in that “[u]nder the [] Restatement,
manufacturers would only be liable for products with curable
dangers, and never for product designs that could not be
changed to reduce or eliminate hazards.”23 We have two
observations about her views. First, it is not true under the
Restatement that courts are “never” to declare that a product
category fails risk-utility norms. Section 2 Comment e
specifically addresses the possibility of liability without
establishing a reasonable alternative design when a product
has low social utility and a high degree of danger.24 Second, and
RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 3 (1998).
22
See Ellen Wertheimer, The Smoke Gets in Their Eyes: Product Category
Liability and Alternative Feasible Designs in the Third Restatement, 61 TENN. L. REV.
1429, 1442 (1994).
23
Wertheimer, supra note 1, at 934.
24
The text of comment e provides:
Design defects: possibility of manifestly unreasonable design. Several courts
have suggested that the designs of some products are so manifestly
unreasonable, in that they have low social utility and high degree of danger,
that liability should attach even absent proof of a reasonable alternative
design. In large part the problem is one of how the range of relevant
alternative designs is described. For example, a toy gun that shoots hard
rubber pellets with sufficient velocity to cause injury to children could be
found to be defectively designed within the rule of Subsection (b). Toy guns
unlikely to cause injury would constitute reasonable alternatives to the
dangerous toy. Thus, toy guns that project ping-pong balls, soft gelatin
pellets, or water might be found to be reasonable alternative designs to a toy
gun that shoots hard pellets. However, if the realism of the hard-pellet gun,
and thus its capacity to cause injury, is sufficiently important to those who
purchase and use such products to justify the court’s limiting consideration to
toy guns that achieve realism by shooting hard pellets, then no reasonable
alternative will, by hypothesis, be available. In that instance, the design
feature that defines which alternatives are relevant—the realism of the hardpellet gun and thus its capacity to injure—is precisely the feature on which
the user places value and of which the plaintiff complains. If a court were to
adopt this characterization of the product, and deem the capacity to cause
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945
more important, we challenge Professor Wertheimer to find a
case where a court has actually found liability based on her
notion that the product creates more risk than utility when
there was no way to make the product safer. What products
would she include on her list? Certainly not productive
machinery. How about SUV’s or motorcycles? The authors will
admit to a strong personal dislike for motorcycles. They are
death traps on wheels. But, would any court consider, even for
an instant, declaring these products to be defective because
they disturb a jury’s notion that they score too high on the
misery scale? And why not alcoholic beverages? The societal
toll taken by alcohol is mind-boggling. Is it because martinis
are too deeply ingrained in our culture? That leaves only
tobacco. But here, too, courts have not taken on the issue of
cigarettes as a defective product. The cases have proceeded
under either failure to warn or fraud and misrepresentation,
not under the theory that cigarettes themselves are per se
unreasonably dangerous.25 For reasons that we have detailed
elsewhere, American courts have avoided product category like
the plague.26 The Restatement reflected and continues to reflect
the overwhelming consensus on this issue. There is no
backlash. None whatsoever.
IV.
THE RESTATEMENT IS NEITHER PRO-DEFENDANT NOR
PRO-PLAINTIFF
Professor Wertheimer and a handful of other critics
portray the Third Restatement as pro-defendant. We would
urge them to read both the Restatement and the developing
case law more carefully. A strong case can be made that
plaintiffs have utilized the Restatement and the positions it
espouses more successfully than defendants. Examples abound.
injury an egregiously unacceptable quality in a toy for use by children, it
could conclude that liability should attach without proof of a reasonable
alternative design. The court would declare the product design to be defective
and not reasonably safe because the extremely high degree of danger posed
by its use or consumption so substantially outweighs its negligible social
utility that no rational, reasonable person, fully aware of the relevant facts,
would choose to use, or to allow children to use, the product.
RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 2 cmt. e (1998).
25
See, e.g., Williams v. Phillip Morris, Inc., 48 P.3d 824, 49 (Or. Ct. App.
2002) (proceeding under fraud theory).
26
James A. Henderson, Jr. & Aaron D. Twerski, Closing the American
Products Liability Frontier: The Rejection of Liability Without Defect, 66 N.Y.U. L. REV.
1263, 1300-14 (1991).
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(1) Warnings Cannot Cure a Defective Design. One of
the unfortunate legacies of Restatement, Second, Comment j
was that a product whose dangers are adequately warned
against is not defective in design.27 The authors and others
found this position untenable. The Third Restatement puts this
issue to rest. Section 2, Comment l says that “when a safer
design can reasonably be implemented and risks can
reasonably be designed out of a product, adoption of the safer
design is required over a warning that leaves a significant
residuum of such risk.”28 Several high-profile cases have taken
this position much to the chagrin of manufacturers who sought
to absolve themselves from liability because they had
thoroughly warned against the dangers.29
(2) An Inference of Defect May be Drawn Without Proof
of Specific Defect. Courts had questioned the applicability of
the negligence res ipsa doctrine to strict liability cases.30 The
Restatement takes the position that res ipsa is fully analogous
and that one can draw an inference of defect when the incident
that harmed the plaintiff was of a kind that ordinarily occurs
as a result of product defect.31 Plaintiff need not establish
whether the defect stemmed from design or from faulty
manufacture and thus is not required to introduce a reasonable
alternative design to establish a prima facie case of defect.32
This is another provision in the Restatement upon which courts
have relied to the great advantage of plaintiffs.33
27
Section 402A, comment j provides:
Where warning is given, the seller may reasonably assume that it will be
read and heeded; and a product bearing such a warning, which is safe for use
if it is followed, is not in defective condition, nor is it unreasonably
dangerous.
RESTATEMENT (SECOND) OF TORTS § 402A cmt. j (1965).
28
RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 2 cmt. l (1998).
29
Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334-37 (Tex.
1998); Rogers v. Ingersoll-Rand Co., 144 F.3d 841, 844-45 (D.C. Cir. 1998); Lewis v.
American Cyanamid Co., 715 A.2d 967, 982 (N.J. 1998).
30
Welge v. Planters Lifesavers Co., 17 F.3d 209, 211 (7th Cir. 1994) (applying
Illinois law). The court held:
The doctrine of res ipsa loquitur teaches that an accident that is unlikely to
occur unless the defendant was negligent is itself circumstantial evidence
that the defendant was negligent. The doctrine is not strictly applicable to a
product liability case because unlike an ordinary accident case the defendant
in a products case has parted with possession and control of the harmful
object before the accident occurs.
Id.
31
See text of § 3 supra note 21.
32
RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 3 cmt. b (1998).
33
See, e.g., Speller v. Sears, Roebuck & Co., 790 N.E.2d 252, 254-55 (N.Y.
2003); Myrlak v. Port Auth. of N.Y. & N.J., 723 A.2d 45, 57 (N.J. 1999).
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(3) Violation of Safety Statutes and Regulations is
Dispositive for Plaintiffs; Compliance is Not Dispositive for
Defendants. Section 4 of the Third Restatement takes a onesided position. Violation of statute or regulation renders a
product defective. On the other hand, compliance with a
statute or regulation is not dispositive. A defendant may
introduce evidence of compliance but compliance does not
preclude a finder of fact from a finding that a product is
defective.
(4) Product Distributors Owe Post-Sale Duties to Warn.
Section 10 of the Third Restatement sets forth the structure for
the imposition of a post-sale failure to warn. Some courts have
resisted recognizing a duty to warn of after-discovered risks
when the product was not defective at time of sale.34 Once again
courts have relied on the factors set forth in Section 10 and will
recognize a post-sale duty when the facts indicate that the
factors have been met.35 By creating a coherent structure the
Restatement has allayed the fears that a post-sale duty to warn
will result in unbridled liability.
(5) Plaintiffs Receive the Benefit of the Doubt in
Crashworthiness Cases. For years courts debated whether a
plaintiff who could not establish the amount of increased
damages caused by a defect in an auto that rendered it
uncrashworthy could recover from a defendant who caused
some add-on injury to that which the plaintiff would otherwise
have suffered.36 Section 16 of the Restatement takes the
position that once plaintiff has proved that a defect caused
some increased harm but the full extent of the harm cannot be
determined, the auto manufacturer is liable for the entirety of
the damages. We are pleased that every court that has faced
the issue post-Restatement has adopted Section 16.37
34
See, e.g., McLennan v. Am. Eurocopter Corp., 245 F.3d 403, 429 (5th Cir.
2001) (applying Texas law); Modelski v. Navistar Int’l Transp. Corp., 707 N.E.2d 239
(Ill. App. Ct. 1999).
35
See, e.g., Lovick v. Wil-Rich, 588 N.W.2d 688, 693-96 (Iowa 1999) (adopting
§ 10); Lewis v. Ariens Co., 751 N.E.2d 862, 867 (Mass. 2001) (adopting § 10).
36
For a review of the authority pro and con on this issue, see the
RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 16 cmt. d and reporters’ notes at 243-53
(1998).
37
Gen. Motors Corp. v. Farnsworth, 965 P.2d 1209, 1219-20 (Alaska 1998);
Lally v. Volkswagen Aktiengesellschaft, 698 N.E.2d 28, 36-37 (Mass. Application. Ct.
1998); Poliseno v. Gen. Motors Corp., 744 A.2d 679, 686 (N.J. Super. Ct. App. Div.
2000); Green v. Gen. Motors Corp., 709 A.2d 205, 214-16 (N.J. Super. Ct. App. Div.
1998); cert. denied, 718 A.2d 1210 (N.J. 1998); Trull v. Volkswagen of Am., Inc., 761
A.2d 477 (N.H. 2000).
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The list goes on. In drafting the Restatement, we did not
seek to trade off one issue against the other. We endeavored
only to reflect the law as it was developing and to ask ourselves
whether the result was fair. In a Restatement that has twentyone sections and one hundred and thirty-three comments, it is
not surprising that some courts will differ on one or another
rule or comment. But the world is not as Professor Wertheimer
would have her readers see it. As intriguing as her ironic tale
of unintended consequences may be, it is an imaginative work
of fiction.
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NOTES
Not As Bad As We Thought
THE LEGACY OF GEIER V. AMERICAN HONDA
MOTOR COMPANY IN PRODUCT LIABILITY
PREEMPTION
*
I.
INTRODUCTION
[I]n federal preemption, the court decides as a matter of federal law
that the relevant federal statute or regulation reflects, expressly or
impliedly, the intent of Congress to displace state law, including
state tort law, with the federal statute or regulation. The question of
preemption is thus a question of federal law, and a determination
that there is preemption nullifies otherwise operational state law.1
This statement cuts to the heart of why preemption2 is
such a powerful, confusing and controversial area of federal
law. By declaring that federal law preempts state actions3 in a
*
© 2005 Mason A. Barney. All Rights Reserved.
RESTATEMENT (THIRD) OF TORTS: PRODUCT LIABILITY § 4, cmt. e (1998).
2
There is a difference of opinion on how to spell “preemption.” The modern
Supreme Court appears to prefer the “pre-emption” spelling. E.g., Geier v. Am. Honda
Motors Co., 529 U.S. 861, 867 (2000); Freightliner Corp. v. Myrick, 514 U.S. 280, 287
(1995); English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990); Jones v. Rath Packing, Co.,
430 U.S. 519, 525 (1976). In contrast, most scholars on the topic appear to prefer the
“preemption” spelling. E.g., Mary J. Davis, Unmasking the Presumption in Favor of
Preemption, 53 S.C. L. REV. 967 (2002); Caleb Nelson, Preemption, 86 VA. L. REV. 225
(2000); Stephen A. Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. 767
(1994). Since it is a scholarly work, this Note shall use the “preemption” spelling.
3
The term “state action[s]” as used in this note refers to both state
legislatures creation of legislation and state judicial consideration of tort cases based
on either state common law or state legislation.
1
949
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given field, a judge permanently displaces all state claims
within the scope of the federal law.4 This is the powerful aspect
of preemption.5 However, because preemption rests upon the
intent of Congress, a difficult concept to pin down under the
best of circumstances, it remains (and probably will always be)
a confusing and sometimes unpredictable area of federal law.6
This Note will examine the impact one case, Geier v.
American Honda Motors Company,7 has had on the preemption
doctrine as it applies to all product liability cases. In Geier, the
Supreme Court considered the question of whether the federal
regulation8 concerning the need for passive restraint
technology9 in new cars preempted the plaintiff’s claim of
defective design against Honda for not manufacturing the 1987
Honda Accord with a driver’s side air bag.10 The Court found
Geier’s claim to be preempted because it “would stand as an
obstacle” to the Department of Transportation’s (DOT)
objectives for FMVSS 208.11 A number of authors, including
Justice Stevens for the dissent in Geier, declared that the
4
Several authors have referred to this type of action as “jurispathic,”
because, through federal preemption, a court can “kill” an entire segment of state law.
Robert M. Cover, The Supreme Court 1982 Term: Foreword: Nomos and Narrative, 97
HARV. L. REV. 4, 40 (1983). See also S. Candice Hoke, Preemption Pathologies and Civic
Republican Values, 71 B.U. L. REV. 685, 694 (1991) (noting how a preemption ruling is
almost always “jurispathic” in result).
5
See Hoke supra note 4, at 690-99 (declaring how the power of preemption
rests in its ability to remove topics from the reach of state law).
6
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 540 (2001) (stating that the
court has over the years found the Supremacy Clause, a relatively clear and simple
statement, very difficult to interpret consistently).
7
529 U.S. 861 (2000).
8
The regulation in question in Geier was Federal Motor Vehicle Safety
Standard 208. 49 C.F.R. §571.208 (1984) [hereinafter FMVSS 208]. The Geier suit only
dealt with the 1984 version of the FMVSS 208. See Geier, 529 U.S. at 864.
9
Passive restraint technology is an automotive industry term referring to
devices that protect the car’s occupants in the event of a crash without requiring the
occupant to actively engage the technology. Air bags, for example, automatically deploy
in a crash without the driver having to perform any action beyond the normal
operation of the car. On the other hand, regular seatbelts require the passenger to
buckle them in order for them to be effective. Motor Vehicle Mfrs. Ass'n of the United
States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 34-35 (1983) (hereinafter
“State Farm”). See also 49 C.F.R. § 571.208 (2003) (requiring cars to meet the
requirements using technology “that require no action by vehicle occupants”). In 1987,
when Geier’s Honda was manufactured, the only passive restraint systems that could
satisfy the standard were airbags and automatic seatbelts. State Farm, 463 U.S. at 35
(1983).
10
Geier, 529 U.S. at 864-65 (stating that the plaintiff’s suit arose from
injuries sustained in 1992 when the plaintiff crashed her 1987 Honda Accord, equipped
only with seat belts, into a tree).
11
Id. at 886 (internal quotations omitted).
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951
decision shifted the balance of the federal and state power,12
further “muddled” the already confusing preemption doctrine13
and limited many individuals’ rights to recover damages.14
In contrast to this position, this Note will argue that
these declarations of doom were premature and exaggerated.
Geier provides an excellent example of the Court’s modern
approach to implied preemption, the case represents a
refinement of the current preemption methodology without
adversely affecting the way lower courts evaluate the federalstate balance.
Section II of this Note examines the history of federal
preemption that shaped the Court’s decision in Geier. Section II
first examines why the framers of the Constitution thought it
necessary to expressly declare federal law’s supremacy over
state law. Next, Section II briefly reviews the important
preemption principles that developed over the last century.
Section III of this Note summarizes the Supreme Court’s
decision in Geier and comments on Justice Breyer’s reasoning.
Section IV reviews the important effects of the Geier decision,
and argues that those effects are logical extensions of the
existing preemption doctrine. Finally, Section V provides
several examples of how lower courts, and subsequently the
Supreme Court, have interpreted and utilized the Geier
decision. This last section includes a detailed look at the
Supreme Court’s decision in Sprietsma v. Mercury Marine,15
which provides some validation that the lower courts have been
interpreting Geier correctly.
12
See id. at 906-07 (Steven, J., dissenting) (discussing how the majority has
ignored the presumption against preemption, and forced the state plaintiff to show
instead that their action does not interfere with the federal government’s regulation).
13
Susan Raeker-Jordan, A Study in Judicial Sleight of Hand: Did Geier v.
American Honda Motor Co. Eradicate the Presumption Against Preemption?, 17 BYU J.
PUB. L. 1, 3 (2002) (“[t]he Geier Court, . . . further muddl[ed] long standing preemption
doctrine . . . .”); Nelson, supra note 2, at 232 (“Most commentators who write about
preemption agree on at least one thing: Modern preemption jurisprudence is a
muddle.”).
14
Stacey Allen Carroll, Federal Preemption of State Products Liability
Claims: Adding Clarity and Respect for State Sovereignty to the Analysis of Federal
Preemption Defenses, 36 GA. L. REV. 797, 819 (2002) (declaring that among Geier’s
many damaging potential effects, one was that the holding “eviscerated the possibility
of recovery for many injured plaintiffs”).
15
537 U.S. 51 (2002).
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II.
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BACKGROUND AND HISTORY OF PREEMPTION
Since the founding of this nation the preemption of state
actions has been a hotly debated topic. The Constitution’s
Supremacy Clause declares: “[t]his Constitution, and the Laws
of the United States which shall be made in Pursuance thereof;
. . . shall be the supreme Law of the Land . . . .”16 From this
“relatively clear and simple mandate,”17 grew most of the
complex federal preemption doctrine.18 The doctrine's evolution
began at the inception of the nation and it has continued to be
refined up to the present day.19 The modern doctrine that has
developed out of this evaluation is a complex one, which
attempts to maintain a balance between the federal
government and the states and contains inherent safeguards to
preserve this balance.
A.
The Origins of Federal Supremacy
The modern preemption doctrine, as embodied in the
Supremacy Clause, was originally considered necessary to
remedy one of the major deficiencies of the Articles of
Confederation. Before the Constitution, the Articles of
Confederation declared: “[e]very State shall abide by the
determination of the United States in Congress assembled, on
all questions which by this confederation are submitted to
them.”20 Under this Article, however, the state and federal
16
U.S. CONST. art. VI, cl. 2.
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 540 (2001) (stating that the
court has over the years found the Supremacy Clause, a relatively clear and simple
statement, very difficult to consistently interpret).
18
It is important to note that not all federal preemption occurs strictly under
the Supremacy Clause. For example preemption can also occur under the dormant
commerce clause or the privileges and immunities clause. Additionally, in order for a
federal action to have preemptive effect it must first be a valid exercise of federal
power. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW, 303 (2001) (summarizing the
various ways Congress can limit state regulatory and taxing power). But see
Gardbaum, supra note 2 (arguing that contrary to the mainstream opinion, supremacy
of federal law and the preemption of state law are in fact two different legal concepts,
and for the sake of clarity of the doctrine should not be viewed as the same). Gardbaum
argues that a supremacy doctrine should be used on a case-by-case basis to determine
which law, state or federal, should apply, whereas a preemption doctrine should be
used when Congress has explicitly stripped a state of jurisdiction in a given area. Id.
19
See Gardbaum, supra note 2, at 785-807 (providing a detailed
“Constitutional History of Preemption”); Davis, supra note 2 at 972-1005 (discussing
th
the history of preemption in the 20 century).
20
ARTICLES OF CONFEDERATION art. XIII. See generally Nelson, supra note 2,
at 247 n.66 (providing a history of supremacy in the United States, including
supremacy under the Articles of Confederation).
17
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953
judicial systems operated completely independent of one
another.21 This separate and equal existence meant that state
judges were not bound to enforce the determinations of
Congress unless the state legislature passed a law
implementing the congressional act.22 This practice allowed
states to sidestep federal legislation they considered to be
against their interests. If an individual state did not agree with
Congress on an issue, the state could simply not enact any
enforcing legislation.23 Consequently, the effectiveness of the
central government under the Articles of Confederation was
severely limited even over those areas where the Articles gave
the central government control.24 Having learned from the
weaknesses of the Articles of Confederation,25 the Constitution’s
framers not only required states to enforce federal law,26 but
made federal law the “highest in authority” in every state.27
21
See THE FEDERALIST No. 44, at 236 (James Madison) (George W. Carey,
James McClellan ed., 2001) (stating that, during the writing of the Constitution, many
state constitutions did not even recognize the existence of the federal government).
22
Nelson, supra note 2, at 247; THE FEDERALIST No. 15, at 71 (Alexander
Hamilton) (George W. Carey, James McClellan ed., 2001) (referring to the
ineffectiveness of laws passed by Congress under the Articles of Confederation,
Hamilton stated: “in practice they are mere recommendations which the States observe
or disregard at their option.”). See also Gerald Gunther, The Supremacy Clause: The
Central Element of the Constitutional Scheme, in OUR PECULIAR SECURITY: THE
WRITTEN CONSTITUTION AND LIMITED GOVERNMENT 133, 136-37 (Eugene W. Hickock
Jr. et al. eds. 1993) (stating that under the Articles of Confederation there was an
“absence of machinery to enforce national measures . . . against individuals”).
23
See Gunther, supra note 22, at 136 (arguing that the idea of supremacy of
the federal government was not a new idea to the Constitution and that the problem
with the supremacy of the Articles of Confederation arose from their implementation
and not their underlying theory). See e.g., Nelson, supra note 2, at 248-250 (discussing
how after the Treaty of Peace which ended the revolutionary war, the states and
Congress disagreed over whether the Treaty automatically became part of every state’s
laws and therefore overrode previous or subsequent state acts that ran counter to it).
24
See THE FEDERALIST No. 44, at 236 (James Madison) (George W. Carey,
James McClellan ed., 2001) (arguing in favor of the need for the Supremacy Clause by
comparing the powers of Congress under a Constitution without the Supremacy Clause
to “the same impotent condition with [Congress under the Articles of Confederation]”).
25
See id. (giving four reasons why, in comparison to the government under
the Articles of Confederation, the Supremacy Clause was necessary; 1) the federal
Constitution made the state sovereign powers, and therefore as such they could
potentially have annulled any act performed under a power beyond that granted the
Congress under the Articles of Confederation; 2) many of the state constitutions did not
recognize the federal government, and without the Supremacy Clause, in those states,
the power of the federal government could be questioned; 3) since the constitutions of
the states are different, a federal law or treaty might conflict with some and not with
others, thereby making federal law applicable in some states and not in others; and 4)
without the Supremacy Clause, the federal government would be at the mercy of every
state government, creating “a monster, in which the head was under the direction of
the members.”).
26
U.S. CONST. art. VI, cl. 2 (“This Constitution, and the Laws of the United
States . . . shall be the supreme Law of the Land; and the Judges in every State shall
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Despite this apparent agreement about the necessity of
the Supremacy Clause, even from the early history of the
republic,28 settling on where the federal law ends and state law
begins has always been a contentious issue.29 According to the
Supreme Court, the question of where to draw this line is a
matter of Congressional intent.30 Framing the decision to
preempt in terms of Congressional intent may have made the
preemption doctrine more difficult to implement, but it was the
correct approach.31 It is correct because as shown, the framers
unquestioningly made congressional laws supreme over the
be bound thereby, any Thing in the . . . Laws of any State to the Contrary
notwithstanding.”).
27
Nelson, supra note 2, at 250-252 (describing why the framers thought it
important to include the Supremacy Clause). Additionally Nelson stated that both
Samuel Johnson in his 1785 dictionary of the English language, and Chief Justice
Marshall in his article in defense of McCulloch v. Maryland, defined supreme to mean
“highest in authority.” Id. at 250.
28
See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 3 (1824) (declaring that
New York’s grant of a monopoly over the water transportation in New York harbor “in
collision with the acts of Congress regulating the coasting trade, which being made in
pursuance of the Constitution, are supreme, and the State laws must yield to that
supremacy. . . .”); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 436 (1819). The
Court stated:
[T]he states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operation of the constitutional laws enacted by Congress to carry into execution the power vested in the general
government. This is, we think, the unavoidable consequence of that supremacy which the Constitution has declared.
Id. See also HERBERT A. JOHNSON, THE CHIEF JUSTICESHIP OF JOHN MARSHALL 1801–
1835, at 140-47 (1997) (discussing McCulloch’s position as Marshall’s premier opinion
defining the federal-state balance, but acknowledging that even after the opinion, there
was still considerable debate over federal supremacy, to the point that Marshall later
wrote anonymous essays replying to numerous attacks on the very concept of federal
supremacy).
29
See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 540-41 (2001) (“[The
Supremacy Clause] has generated considerable discussion in cases where we have had
to discern whether Congress has preempted state action in a particular area.”).
30
English v. Gen. Elec. Co., 496 U.S. 72, 78-79 (1990) (“[p]re-emption
fundamentally is a question of congressional intent.”).
31
See Geier v. Am. Honda Motors Co., 529 U.S. 861, 907-908 (2000) (Stevens,
J., dissenting) (arguing that placing the power of preemption in Congress’s hands is
correct as an inherent structural safeguard to the preemption principle). Justice
Stevens declared that Congress, as the branch which most represents the interests of
the states, would be the best branch to balance the power between the federal
government and the state. Id. at 908. This is also not just Justice Stevens’ theory. In
the Unfunded Mandates Reform Act of 1995, Pub. L. No. 104-4, 109 Stat 48 (codified in
scattered sections of 2 U.S.C), Congress ordered the Congressional Budget Office to
review all legislation coming out of committee for potential unfunded mandates that
the legislation will place on the states, especially areas where the federal law will
preempt state laws. CONGRESSIONAL BUDGET OFFICE, PREEMPTIONS IN FEDERAL
LEGISLATION IN THE 106TH CONGRESS (JUNE 2001), available at ftp://ftp.cbo.gov/
28xx/doc2885/Preemptions.pdf.
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states.32 Additionally, as Justice Marshal in McCulloch phrased
it, Congress may choose whatever means it deems “necessary
and proper . . . for carrying its powers into execution.”33
Therefore, the decision of whether it is “necessary and proper”
to preempt state law is a decision Congress must make and
determining its intent is the “ultimate touchstone” of every
preemption analysis.34
Determining whether Congress intended to preempt a
given state action is, however, a difficult proposition.35 It is
impossible for Congress to articulate for every conceivable
situation whether it intended to preempt the state law at
issue.36 Rather, courts are charged with determining on a caseby-case basis whether Congress intended to preempt the
particular state action. Since Congress rarely speaks with one
voice in giving its reasons for enacting a law, the Supreme
Court has stated that, as an initial matter, “evidence of
preemptive purpose [should be] sought in the text and
structure of the statute at issue.”37
However, a statute’s text often does not clearly evince
Congress’s intent.38 In these instances, courts must often resort
32
Yet, the federal government is inherently a government of limited power,
and its laws are superior to state laws only when it acts within one of its enumerated
powers. See CHEMERINSKY, supra note 18, at 304.
33
17 U.S. (4 Wheat.) at 324. See also Cipollone v. Liggett Group, Inc, 505
U.S. 504, 516 (1992) (declaring that since McCulloch, it has been clear that any “state
law that conflicts with federal law is ‘without effect.’”); THE FEDERALIST No. 33 at 158161 (Alexander Hamilton) (George W. Carey, James McClellan ed., 2001) (arguing that
the Supremacy Clause and the Necessary and Proper Clause are merely truisms which
cannot exist without each other).
34
Cipollone, 505 U.S. at 516 (quoting Malone v. White Motor Corp., 435 U.S.
497, 504 (1978) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963))).
35
Hines v. Davidowitz 312 U.S. 52, 67 (1941) (“There is not—and from the
very nature of the problem there cannot be—any rigid formula or rule which can be
used as a universal pattern to determine the meaning and purpose of every act of
Congress.”).
36
See Malone, 435 U.S. at 504 (stating that Congress rarely indicates its
preemptive intent clearly). When courts talk about preempting state law, they
sometimes will also include state common law. Compare Cipollone, 505 U.S. at 521
(discussing how the phrase chosen by Congress to discuss the state laws it intended to
preempt was broad and included state common law as well as positive state
enactments) with Geier, 529 U.S. at 868 (declaring that the express preemption clause
in the Federal Motor Vehicles Safety Act does not automatically preempt state common
law because of the saving clause).
37
CXS Transp. v. Easterwood, 507 U.S. 658, 664 (1993) (evaluating the reach
of the express preemption clause in the Federal Railroad Safety Act, Justice White first
analyzed the words in the clause to see if the words provided any guidance as to
Congress’s preemptive intent).
38
See Colon ex rel. Molina v. BIC USA, Inc., 136 F. Supp. 2d 196, 202-05
(S.D.N.Y. 2000) (discussing the difficulty of discerning Congress’s preemptive intent
when the Consumer Product Safety Act contains both an express preemption clause,
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to using circumstantial evidence, like the history surrounding
the law or regulation,39 or an implementing agency's post hoc
opinion of the act,40 to determine whether Congress intended to
preempt the state action.41 One illustration of how problematic
this determination can be is the fact that the Supreme Court
has attempted to tackle preemption questions no fewer than
300 times in the past fifty years.42 Simply by virtue of this
volume of decisions, it is easy to understand why the resulting
doctrine is quite convoluted.43
B.
How Congress Can Preempt State Actions
The complexity of the preemption problem has created a
doctrine where by Congress is said to have preempted state
actions in a variety of different situations. Beginning in the
th
early part of the 20 century,44 the Court recognized that a
state action could be preempted in two ways—either expressly
or impliedly.45 Express preemption occurs when Congress
and a saving clause that states that compliance with the Act does not exempt an
individual from common law liability).
39
Geier was by no means the first case where the Supreme Court used
resources beyond the text of the statute to interpret Congress’s intent. In what
Professor Gardbaum believed was the genesis of modern implied preemption theory,
Gardbaum, supra note 2, at 807, the Court in Rice v. Santa Fe Elevator, 331 U.S. 218
(1947), relied heavily on statutory history in holding that the Warehouse Act implicitly
preempted state regulatory actions regarding Warehouse rates. Id. at 232.
40
See e.g., Geier v. Am. Honda Motors Co., 529 U.S. 861, 875-85 (2000) (using
the Department of Transportation’s evaluation of the preemptive effects of the
regulation in making the Court’s final determination); Hillsborough County, Fla. v.
Automated Med. Labs., Inc., 471 U.S. 707 (1985) (evaluating an action challenging the
constitutionality of local ordinances governing blood donation, the Court placed a good
deal of emphasis on the Food and Drug Administration’s intention not to preempt state
actions).
41
See S. Doc. No. 103-6, at 917-19 (1992) (Supp. S. Doc. No. 106-27 (2000)) at
918 (describing for U.S. Senators the role of the courts and the methods the courts
employ when deciding a preemption case), available at http://www.gpoaccess.gov/
constitution/pdf/con009.pdf.
42
Davis, supra note 2, at 969 n.9 (describing how there had been
approximately 150 Supreme Court decisions concerning preemption between 1940 and
1980, and then approximately another 150 decisions on the subject between 1980 and
2000).
43
See Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (stating that it is
impossible to formulate a simple “yardstick” or “infallible” test; preemption inherently
requires a complex analysis without a “clear distinctly marked formula”).
44
Professor Davis has argued that much of modern preemption doctrine was
developed as a response to the expansion of congressional power during the New Deal.
Davis, supra note 2, at 978.
45
See Jones v. Savage, 225 U.S. 501, 533 (1912) (“For when the question is
whether a Federal act overrides a state law, the entire scheme of the statute must, of
course, be considered, and that which needs must be implied is of no less force than
that which is expressed.”).
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declares within a statute its intention to preempt state laws
governing the same issue as the federal law.46 Conversely,
implied preemption occurs when an act’s “structure and
purpose”47 suggest that Congress intended federal law to
supersede state actions governing the same field or issue.48
The Supreme Court has accepted two different
categories of implied preemption. One category of preemption,
called “field preemption,” is found where Congress legislates a
field so completely that it is clear Congress intended the
federal government to have exclusive jurisdiction in that field.49
The second category of implied preemption is broadly referred
to as “implied conflict preemption,” or just “conflict
preemption.”50 Conflict preemption can be found in two different
situations. One instance of conflict preemption is when the
state action is incompatible with the congressional law, such as
when it is physically impossible for an individual to
simultaneously comply with both the federal law and the state
law.51 This is often referred to as “physical impossibility”
conflict preemption.52 The other situation where conflict
preemption occurs is where the state action will stand as an
46
English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990) (“[W]hen Congress has
made its intent known through explicit statutory language, the court’s task is an easy
one.”). E.g., Cipollone v. Liggett Group, Inc, 505 U.S. 504 (1992) (holding that the
section of the Public Health Cigarette Smoking Act of 1969 which stated “no statement
relating to smoking and health, other than the statement required by section 4 of this
act, shall be required on any cigarette package” expressly showed Congress’s intent to
preempt all state laws relating to the labeling of cigarette packages).
47
Jones v. Rath Packing 430 U.S. 519, 529 (1976) (“[State law is preempted]
whether Congress’s command is explicitly stated in the statute’s language or implicitly
contained in its structure and purpose.”).
48
E.g., Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001)
(dismissing plaintiff’s state law “fraud on the FDA” claim, because such a claim would
stand as an obstacle to the flexibility built into the Food and Drug Administration’s
regulatory process, and therefore was implicitly preempted by the Food, Drug, and
Cosmetic Act).
49
E.g., Napier v. Atl. Coast Line R.R. Co., 272 U.S. 605 (1926) (affirming the
judgment of the Wisconsin Supreme Court that in delegating authority to the
Interstate Commerce Commission over “the design, construction and material of every
part of the locomotive,” Congress had occupied the field of locomotive safety and had
excluded all state actions on the topic); Rice v. Santa Fe Elevator 331 U.S. 218, 230
(1947) (“The scheme of federal regulation may be so pervasive as to make reasonable
the inference that Congress left no room for the States to supplement it.”).
50
See Gibbons v. Ogden 22 U.S. (9 Wheat.) 1 (1824) (declaring that since the
New York grant and the Federal license conflict, the New York grant can not be
allowed to stand).
51
Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143
(1963) (“A holding of federal exclusion of state law is inescapable, and requires no
inquiry into congressional design, where compliance with both federal and state
regulations is a physical impossibility . . . .”).
52
Carroll, supra note 14, at 821.
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obstacle to the federal law’s objectives.53 Commentators often
refer to this latter form of conflict preemption as “obstacle
preemption” or “frustration of purpose preemption.”54
The Supreme Court in Geier ultimately rested their
decision on an obstacle preemption theory.55 The Court’s
majority based this conclusion on the idea that the plaintiff’s
tort claim would frustrate the Department of Transportation’s
objectives for FMVSS 208.56 Despite the Court’s recent reliance
on obstacle preemption in Geier, this type of preemption has
long been the most contentious.57 Most commentators have been
concerned about the expansion of obstacle preemption due to
its inherent ability for courts to manipulate a perceived
congressional objective.58 This issue of what were Congress’s
objectives was, in fact, the major disagreement between the
majority and dissent in Geier. Justice Breyer, writing for the
majority, declared the objective of FMVSS 208 to be the
“gradual phase-in of passive restraints.”59 Conversely, Justice
Stevens, writing for the dissent, stated the objective to be the
53
Hines v. Davidowitz 312 U.S. 52, 67 (1941) (“Our primary function is to
determine whether, under the circumstances of this particular case, [the state law]
stands as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress.”). E.g., Carrasquilla v. Mazda Motor Corp., 166 F. Supp. 2d 169
(M.D. Pa. 2001) (finding that a “shoulder-only” automatic seat belt defective design
claim would stand as an obstacle to FMVSS 208’s objective of offering manufacturers a
choice of restraint technologies). See also Nelson, supra note 2, at 265-70 (discussing
how the Supreme Court in Perez v. Campbell, 402 U.S. 637, 650 (1971), traced the
origins of obstacle preemption back to a quote from Chief Justice Marshall’s decision in
Gibbons v. Ogden, “‘acts of the State Legislatures . . . [which] interfere with, or are
contrary to the laws of Congress, made in pursuance of the Constitution,’ are invalid
under the Supremacy Clause”).
54
Stephen R. Bough & Lynn R. Johnson, Crossing the Center Line:
Preemption in Automobile Product Liability Cases, 57 J. MO. B. 30, 31 (2001) (“Obstacle
or frustration of purpose preemption is quite common, and is found where state laws
frustrate the purpose behind the federal statutes regulating the same subject matter.”).
55
Geier, 529 U.S. at 881 (holding that the plaintiff’s tort action creating a
duty to install airbags on all 1987 cars would present an obstacle to the mix of passive
restraint devices sought by the federal regulation).
56
See discussion infra Part II.B.
57
Rice v. Santa Fe Elevator 331 U.S. 218, 231 (1947) (Referring to obstacle
preemption, the court stated, “[i]t is often a perplexing question whether Congress has
precluded state action or by the choice of selective regulatory measures has left the
police power of the state undisturbed except as the state and federal regulations
collide”).
58
The Supreme Court 1999 Term—Leading Cases, (pt. III A) 114 HARV. L.
REV. 339, 345-46 (2000) [hereinafter Supreme Court 1999, Leading Cases] (quoting
Hines v. Davidowitz, 312 U.S. at 67) (“Because obstacle preemption relies by definition
on the ‘full purposes and objectives of Congress,’ its boundaries are somewhat
indeterminate.”). See Davis, supra note 2, at 1021 (discussing how obstacle preemption
eradicated the presumption against preemption and ultimately leads to a presumption
in favor of preemption).
59
Geier, 529 U.S. at 879.
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general reduction in automotive related injuries.60 The
majority’s narrowly defined objective resulted in more state
actions conflicting with it, whereas the dissent’s more broadly
defined objective was harmonious with more state actions,
thereby preserving those actions.61 Despite all this, however, it
is important to remember that the category distinctions for
preemption (express preemption, physical impossibility
preemption, field preemption, and obstacle preemption) are by
no means rigid, and the lines between them are often unclear.62
C.
The Presumption Against Preemption
The presumption against preemption is an additional
rule of interpretation that the Supreme Court and
commentators have often cited as a limitation to federal
preemption.63 In an oft-cited passage,64 the Supreme Court in
Rice v. Santa Fe Elevator Corp.65 explained that an analysis of a
60
Id. at 889 (Stevens, J. dissenting). This disagreement was due in large
measure to the fact that Justice Stevens was taking as the congressional objective only
the objective stated in the Safety Act. Id. Justice Breyer however chose to say that the
congressional objective was in fact the DOT’s objective since the DOT was the rule
making body as concerns FMVSS 208. Id. at 874-75 (Breyer, J. majority).
61
Supreme Court 1999, Leading Cases, supra note 58, at 345 (pointing out
that the majority’s narrower objective had a broader “preemptive scope” than the
dissent’s looser objective).
62
English v. Gen. Elec. Co., 496 U.S. 72, 79 n.5 (1990) (discussing how this
framework is not “rigidly distinct,” but that since it had been previously recognized
that the court believed it appropriate to invoke it generally). An excellent example of
the vagueness of this line comes from Cipollone v. Liggett Group Inc., 505 U.S. at 518.
As Justice Thomas later explained it in Freightliner Corp. v. Myrick, the Court in
Cipollone first stated that it must analyze the case using only the express preemption
clause in the Federal Cigarette Labeling and Advertising Act, but then two paragraphs
later engaged in a clear conflict preemption analysis. Freightliner Corp. v. Myrick 514
U.S. 208, 288-289 (1995) (citing Cipollone v. Liggett Group, Inc., 505 U.S. 504, 518
(1992)).
63
See English, 496 U.S. at 79 (stating that the court has been hesitant to find
field preemption in areas governed by the presumption against preemption);
Hillsborough County, Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 715-716 (1985)
(describing how the presumption against preemption made the court less inclined to
find the local ordinance implicitly preempted, because an ordinance regulating the
safety of blood plasma dealt with the health of the state’s citizens, a field traditionally
occupied by the state).
64
According to the Westlaw Online Custom Digest for the presumption
KeyCite (KeyCite 360k18.3), Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) had
been cited 781 times as of Feb. 2, 2005. This makes Rice the most frequently cited case
for this proposition. See also Gardbaum, supra note 2, at 807 (stating that the Rice
decision was the “locus classicus” of the modern preemption doctrine, and that it is the
most cited statement of the presumption against preemption).
65
331 U.S. 218 (1947) (deciding, in light of the state’s long standing interest
in internal state commerce, if the Illinois Commerce Commission had been preempted
from adjudicating complaints concerning unjust and excessive rates for the storage of
grain).
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preemption issue begins “with the assumption that the historic
police powers of the state were not to be superseded by the
federal act unless that was the clear and manifest purpose of
Congress.”66 While the presumption has had a limited effect in
the area of express preemption,67 its effects have been far
greater in the area of implied preemption.68 According to the
Court, the presumption against preemption is a counterweight
against the judiciary’s tendency towards giving an expansive
interpretation to ambiguous congressional intent.69 As Justice
Thurgood Marshall explained, the real purpose behind the
presumption is to ensure that the carefully established balance
between the federal government and the states is not
“disturbed unintentionally by Congress or unnecessarily by the
courts.”70
While serving an important role in preserving the
federal-state balance, the presumption against preemption is
nevertheless only a tool of interpretation.71 Rather than stifling
66
Id. at 230. While not an issue in Geier, it is important to note that a
threshold inquiry to the presumption is its applicability only in areas of historic state
control. In areas that have traditionally been regulated by the federal government, like
the nuclear power industry, the presumption against preemption does not apply. E.g.,
Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248-249 (1984) (discussing the federal
government’s long standing occupation of all regulations relating to the field of nuclear
power). Additionally, the court in Rice also stated that the “clear and manifest purpose
of Congress” could be established through either express or implied preemption
theories. 331 U.S. at 230.
67
See Cipollone, 505 U.S. at 518 (Stevens plurality opinion) (Discussing an
express preemption clause, the plurality declared “we must construe these provisions
in light of the presumption against the preemption of state police power relations. This
presumption reinforces the appropriateness of a narrow reading of [the express
preemption clause].”) (emphasis added). But see Nelson, supra note 2, at 293-94
(questioning the appropriateness of the application of the presumption against
preemption to express preemption clauses, especially since Congress, in theory, has
already taken into account state interests when it wrote the law, and therefore
asserting that there is no need, as a rule of statutory interpretation, to give those same
interests a preferable standing).
68
See Nelson, supra note 2, at 293 (stating that that the courts have always
required “persuasive reasons” when declaring a state law to be preempted by
implication of federal law); Florida Lime & Avocado Growers, Inc v. Paul, 373 U.S. 132,
142 (1964) (“[F]ederal regulation of a field of commerce should not be deemed
preemptive of state regulatory power in the absence of persuasive reasons.”).
69
Geier v. Am. Honda Motors Co., 529 U.S. 861, 907 (2000) (Stevens, J.,
dissenting) (“[T]he presumption serves as a limiting principle that prevents federal
judges from running amok with our potentially boundless . . . doctrine of implied
conflict preemption . . . .”).
70
Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977); See United States v.
Bass 404 U.S. 336, 349 (1971) (“[U]nless Congress conveys its purpose clearly, it will
not be deemed to have significantly changed the federal-state balance.”).
71
See Gardbaum, supra note 2, at 805-07 (describing the history behind the
presumption, and clearly stating that it was a creation of the court to help it in
divining Congress’s intent in implied preemption situations).
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in any way Congress’s ability to preempt state law, the
presumption is intended merely to aid the judiciary in
discerning Congressional intent—the “ultimate touchstone” of
every preemption case.72 In recent years, many commentators
have noted that the presumption has somewhat fallen into
disfavor with the Court.73 However, as a tool of interpretation
the presumption has been re-interpreted and applied in diverse
ways by the Court over time.74 While it is true that, in recent
years, the Supreme Court appears to have invoked the
presumption by name less frequently,75 it is a mistake to
conclude that the Court therefore ignored the presumption
entirely in implied preemption cases.76 Rather, it is more
accurate to say that the Court simply has found reasons to say
that the given legislation or regulation overcame the
presumption against preemption.77
III.
GEIER V. AMERICAN HONDA MOTOR COMPANY
In 1992, Alexis Geier hit a tree while driving her 1987
Honda Accord.78 At the time, she was wearing a manual
shoulder and lap seat belt—the only passive restraint
technology the car possessed.79 The car was not equipped with a
driver’s side air bag.80 After the accident, Ms. Geier and her
72
Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963).
See, e.g., Supreme Court 1999, Leading Cases, supra note 58, at 339-40;
Raeker-Jordan, supra note 13, at 1-3.
74
See generally Davis, supra note 2, at 972-97 (providing a detailed history of
the evolution of the preemption doctrine and specifically the presumption against
preemption).
75
See id. at 990-97 (detailing the use of the presumption against preemption
in the 1980’s and 1990’s).
76
Contra Geier v. Am. Honda Motors Co., 529 U.S. 861, 906-907 (2000)
(Stevens, J., dissenting) (stating that the majority ignored the presumption and “put
the burden on petitioners to show that their tort claim would not frustrate the
Secretary’s purposes”); Raeker-Jordan, supra note 13, at 43-44 (declaring that the
Geier court departed from its established preemption doctrine and ignored the
presumption against preemption).
77
See discussion infra Part III.B. See also Ernest A. Young, State Sovereign
immunity and the Future of Federalism, 1999 SUP. CT. REV 1, 40 (1999) (“[O]ne critical
characteristic of the presumption against preemption is that it can be overcome by an
adequate showing of Congressional intent . . . .”). Professor Young notes that there are
very few meaningful limits that can be placed on the preemption doctrine while
remaining true to the Supremacy Clause. Id. at 40 n.181. As a result, he suggests that
the Court’s reluctance in recent years to interpret preemption too narrowly stems from
the Court’s inherently limited political capital and its desire not to enter into direct
conflict with Congress over the issue. Id. at 38.
78
Geier, 529 U.S. at 865.
79
Id.
80
Id.
73
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parents filed a common law claim in the District of Columbia
against American Honda Motor Company Inc. (Honda),
alleging that Ms. Geier’s Accord had been negligently and
defectively designed because it lacked a driver’s side air bag.81
Honda, however, responded by arguing that the 1984 version82
of Federal Motor Vehicle Safety Standard 208 (FMVSS 208),
promulgated under the National Traffic and Motor Vehicle
Safety Act of 1966 (Safety Act), 83 both expressly and impliedly
preempted any state action against Honda for not installing a
passive restraint system.84
A.
The Express Preemption and Saving Clauses
Justice Breyer, writing for a five-member majority,85
started his analysis by examining whether the Safety Act’s
express preemption clause affected Ms. Geier’s action.86
Contrary to the approach advocated by Honda,87 Justice Breyer
did not solely look to the text of the Act’s express preemption
clause,88 stating instead that the express preemption provision
81
Id.
Geier’s Honda had been manufactured in 1987 under the 1984 version of
FMVSS 208. Id. at 864. As a result, the Court only examined the 1984 version of
FMVSS 208. Id. at 864-65.
83
Pub. L. No. 89-563, 80 Stat. 718 (codified as amended at 15 U.S.C. §§ 13811431 (1988)).
84
Brief for Respondent at 9, Geier v. Am. Honda Motor Co., 529 U.S. 861
(2000) (No. 98-1811). In its brief Honda clearly stated that it was worried about
“massive, repeated, tort liability for having installed seat belts, and not airbags.” Id. at
7. With that as its primary concern, Honda’s position was that the express preemption
clause of the Safety Act preempted any attempt by the state to establish any safety
standard, which Honda argued included the creation of a standard through tort
actions. Id. Honda contended that the saving clause did not preserve any liability, but
instead simply precluded a defendant from asserting a defense of compliance with a
federal standard. Id. at 7-8. While the Court did eventually find that the plaintiff’s
claims were preempted, it rejected most of Honda’s reasoning for doing so. Geier, 529
U.S. at 867-68.
85
The five member majority consisted of Chief Justice Rehnquist, and
Associate Justices Breyer, O’Conner, Scalia, and Kennedy. Geier, 529 U.S. at 863.
86
Id. at 867.
87
Brief for Respondent at 10-14, Geier (advocating that the plain language of
the express preemption clause showed that it was meant to encompass common law
actions).
88
The Safety Act’s express preemption clause read:
Whenever a Federal motor vehicle safety standard established under this
subchapter is in effect, no State or political subdivision of a State shall have
any authority either to establish, or to continue in effect, with respect to any
motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment
which is not identical to the Federal standard.
Geier, 529 U.S. at 867 (quoting 15 U.S.C. § 1392(d) (repealed 1994)) (internal
quotations omitted).
82
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must be interpreted along with the Safety Act’s “saving
clause.”89 The saving clause stated, “‘[c]ompliance with’ a
federal safety standard ‘does not exempt any person from any
liability under common law.’”90
In holding that “[t]he saving clause assumes that there
are some significant number of common-law liability cases to
save,”91 Justice Breyer argued that if the express preemption
clause applied to common law actions, then there would be
little, if any, common law liability remaining.92 Yet if Congress
had intended little or no liability to remain, Justice Breyer
questioned why the Act would include a saving clause, which
had no meaning other than to exclude a type of defense to a
common law tort claim.93 Consequently, he held that a broad
reading of the express preemption clause could not be correct.
In order to harmonize the two clauses,94 Justice Breyer declared
that, read in the “presence of the saving clause,” the express
preemption clause inherently preempted positive state actions,
89
Geier, 529 U.S. at 868. Justice Breyer did concede that a broad reading of
the express preemption clause, without the saving clause, would probably preempt
common law tort actions as well as positive state legislative enactments. Id. However,
he points out that such a reading would eliminate all potential liability at common law,
and he said there was no convincing evidence that Congress sought to do this. Id.
90
Id. The full text of the saving clause reads: “[C]ompliance with any Federal
motor vehicle safety standard issued under this subchapter does not exempt any
person from any liability under common law.” 15 U.S.C. § 1397(k) (repealed 1994).
Justice Breyer chose to refer to this clause as the “saving clause” because, in his
analysis, it preserved, or saved, the common law from being totally preempted by the
express preemption clause. The term “savings clause” was the term favored in the brief
by the Solicitor General when referring to §1397(k). Brief for the United States as
Amicus Curiae Supporting Affirmance at 8, Geier v. Am. Honda Motor Co., 529 U.S.
861 (2000) (No. 98-1811). To the contrary, Geier, who was advocating that the saving
clause preserved all tort actions, preferred the term “anti-preemption provision” to
refer to § 1397(k). Brief for Petitioner at 14, Geier v. Am. Honda Motor Co., 529 U.S.
861 (2000) (No. 98-1811).
91
Geier, 529 U.S. at 868. This statement is probably the single most
fundamental building block upon which the Court’s interpretation of the express and
saving clauses rests.
92
Id.
93
Id. This holding can be understood as a response to the position held by
Honda and several lower courts that the saving clause merely prohibited a defendant
from defending an action by asserting compliance with a federal standard. See Brief for
Respondent at 21-26, Geier; Sprietsma v. Mercury Marine, 729 N.E.2d 45, 49-50 (Ill.
App. Ct. 2000), aff’d, 757 N.E.2d 75 (Ill. 2001), rev’d, 537 U.S. 51 (2002) (holding, before
Geier was decided, that the Federal Boating Act’s saving clause, which was worded
very similarly to the Safety Act’s saving clause, was merely meant to preclude a
defense of compliance).
94
Supreme Court 1999, Leading Cases, supra note 58, at 340-41
(characterizing Justice Breyer’s decision as harmonizing the preemption and saving
clauses).
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such as a legislative enactment, but did not necessarily
preempt state common law tort actions.95
Having determined that the saving clause preserved
some common law actions, Justice Breyer next examined
whether the clause went further, preserving absolutely all tort
actions from ever being preempted under the Safety Act.96 He
concluded, “that the savings clause . . . does not bar the
ordinary working of conflict preemption principles.”97 Justice
Breyer reasoned that Congress would not enact legislation that
required
“compliance-with-federal-regulation”
as
a
precondition, and then allow states to carve away the
regulation through common law actions that conflicted with it.98
It was more likely, in his opinion, that the saving clause was
designed as a buffer to the express preemption clause to allow
for some common law liability while still preserving implied
preemption principles to protect the overall objectives of the
regulation.99 Justice Breyer stated that, in the past, the Court
had refused to read a saving clause broadly when such a
95
Geier, 529 U.S. at 868. See also Rogers v. Cosco 737 N.E.2d 1158 (Ind. Ct.
App. 2000) (interpreting the Safety Act’s having both a preemption and a saving clause
as a “congressional compromise” between a national interest in uniformity and a local
interest in compensating accident victims based upon common law tort standards).
According to the Indiana Court of Appeals in Rogers, the dichotomy between legislative
actions versus common law actions should not be taken too literally. Id. at 1164-1165.
There the defendants argued that the saving clause was inapplicable because the
Indiana state legislature had included product liability common law negligence actions
within the framework of its product liability statute. Id. at 1164. The Court of Appeals
however said that this distinction was without merit because the underlying purpose
behind the express preemption clause was to bar state courts from enacting motor
vehicle safety regulations that were different from the national standard. Id. at 1165.
The appellate court held that it was not Congress’s intent to render inapplicable a
state’s general common law standards simply because the state chose to codify those
standards. Id.
96
Geier, 529 U.S. at 869. The petitioner (Geier) advocated in her brief that
the Safety Act’s saving clause exempted all common law actions from the effects of the
express preemption clause. Brief for Petitioner at 35-41, Geier v. Am. Honda Motor Co.,
519 U.S. 861 (2000) (No. 98-1811). Then she took this argument a step further. Ms.
Geier asserted that, according to Supreme Court precedent, the inclusion of an express
preemption clause did not specifically preclude common law actions from being
impliedly preempted. Id.
97
Geier, 529 U.S. at 869. (emphasis added).
98
Id. at 869-70. This reading complied with Justice Scalia’s comments in
Cipollone, where he expressed concern over what he perceived as the Court’s
declaration that when express preemption exists, implied preemption cannot also exist.
Cipollone v. Liggett Group, Inc., 505 U.S. 504, 547-548 (1992) (Scalia, J. concurring in
the judgment in part and dissenting in part). In this comment he stated that it would
be inconsistent with precedent to hold that a state “could impose requirements entirely
contrary to federal law” so long as they were outside the prescribed scope express
preemption clause. Id. at 547.
99
Geier, 529 U.S. at 870.
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reading would unbalance an established federal regulatory
scheme.100 This determination, that in statutes containing both
an express preemption clause and a saving clause, the
“ordinary workings of [implied] preemption” still apply,101 has
proven to be one of Geier’s most important contributions to the
preemption doctrine.102
B.
Did Geier’s Action Conflict with FMVSS 208?
Applying this analysis to the facts at hand, the Court
identified the major question posed as whether a common law
“no airbag” action would conflict with FMVSS 208.103 Since
FMVSS 208 was a regulation promulgated under a
congressional act, the regulation’s preemptive reach became a
question of departmental intent.104 To determine whether the
Department of Transportation (DOT) intended to preempt state
law, Justice Breyer looked to the history of the regulation, the
DOT’s comments at the time of FMVSS 208’s promulgation,
and the department’s current stance on the issue.105 The
regulation’s history, as presented in the Court’s opinion,
showed how the DOT had struggled since 1970 to implement a
passive restraint requirement that would be economical for the
manufacturers to implement and which the public would
embrace.106 The Department’s contemporaneous explanation of
the regulation made clear that there were seven “significant
considerations” that were taken into account when creating the
100
Id. (quoting United States v. Locke, 529 U.S. 89, 106-07 (2000)).
Id. at 869. This was the interpretation advocated by the Solicitor General
in his brief Amicus Curiae and on behalf of the DOT. Brief for the United States as
Amicus Curiae Supporting Affirmance at 8-9, Geier. He argued, when Congress
legislates it always does so “against the background of the Supremacy Clause.” Id. at
17. Implicit in this background is the understanding that the federal law will always
prevail when there is a conflict between state and federal law. Id. As a result, unless
Congress expressly excludes it from implied preemption, common law claims preserved
by a saving clause, must still be subject to the limitations of implied preemption. Id.
17-18. If common law actions were allowed to operate outside of implied preemption
principles, the Solicitor General reasoned that the actions could then undermine the
congressional objectives for a given regulation. Id.
102
See discussion infra Part V.A.
103
Geier, 529 U.S. at 874.
104
In this situation Justice Breyer stated that “[t]he agency is likely to have a
thorough understanding of its own regulations and its objective and is ‘uniquely
qualified’ to comprehend the likely impact of state requirements.” Id. at 883. Therefore,
he declared that the Agency’s own views should make a difference in the interpretation
of its own regulation. Id.
105
Id. at 874-75, 881.
106
Id. at 875-77.
101
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regulation.107 The DOT made clear that seatbelts were a critical
part of overall passenger safety.108 In 1984, less than 20% of
front seat passengers used manual seatbelts.109 Airbags and
other passive restraint systems could bridge the safety gap
created by the lack of individuals using seat belts.110 Yet the
DOT also had to take into account the fact that passive
restraint systems had their own problems.111 Non-detachable
automatic safety belts had their own shortcomings and were
disliked by the public.112 Moreover, airbags could be hazardous,
and were significantly more expensive to install and maintain
than automatic safety belts.113
The DOT believed that FMVSS 208 had two important
components that would balance these varying and somewhat
conflicting considerations.114 The DOT allowed manufacturers to
choose between several different passive restraint systems.115
By not mandating a single type of passive restraint system, it
was thought that manufactures would have more of an
incentive to explore alternative passive restraint systems in
the hopes that they could improve the automobile's safety and
reduce the passive restraint system’s cost.116 In addition to
offering a choice, FMVSS 208 also allowed the passive restraint
systems to be phased in gradually between 1986 and 1989.117
The reason for this was that manufacturers needed time to
develop improved airbags and alternative passive restraint
systems.118 The phase-in program was also designed to increase
public awareness and acceptance of passive restraint systems.119
To encourage the manufacturers to have a mix of systems that
would include air bags, FMVSS 208 allowed manufacturers to
count each vehicle designed with an airbag as 1.5 vehicles for
purposes of achieving the percentages required by the
107
Id. at 877-78.
Geier, 529 U.S. at 877-78.
Id.
110
Id. at 877.
111
Id.
112
Id.
113
Geier, 529 U.S. at 878.
114
See id. at 878-79.
115
Id. at 878.
116
Id. at 879. The Department specifically rejected an “all airbag” standard
out of safety concerns and a desire to gather more data about the effectiveness of
alternative passive restraint systems. Id. at 879.
117
Id.
118
Geier, 529 U.S. at 879.
119
Id. at 879.
108
109
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regulation.120 Through the Solicitor General, the DOT informed
the Court that FMVSS 208 “‘embodies the Secretary’s policy
judgment that safety would best be promoted if manufacturers
installed alternative protection systems in their fleets rather
than one particular system in every car.’”121
Considering FMVSS 208’s long and complex history,
Justice Breyer stated that the DOT’s opinion that Ms. Geier’s
action “stands as an obstacle to the accomplishment [of the
Department’s objectives],”122 must hold “some weight.”123 He
declared that since Congress had delegated the regulatory
authority to the Department, and because the subject was a
technical one which required a great deal of familiarity with
the automobile industry, the DOT was “uniquely qualified” to
determine the impact of a state requirement.124 Justice Breyer
explained that the factors that DOT weighed when
promulgating FMVSS 208 were identified over many years of
experience forming policy around passenger safety.125 It is
unlikely that a jury or a judge, in a common law situation,
could have adequately assimilated the technical complexities
and the public acceptance factors in forming a common law
judgment that would have satisfied the six factors mentioned
by the Court.
An intrinsic part of Geier's claim was that Honda had
breached its duty to design a safe car by not installing an
airbag in her Accord.126 Justice Breyer stated that if Geier were
to win her case, then all new cars sold in 1987 in the District of
Columbia would have been required to have an air bag.127
Justice Breyer declared that such a ruling would have
prevented the “gradual passive restraint phase-in the federal
regulation deliberately imposed,” and thus stood as “an
obstacle to the variety and mix of devices” Congress had
intended.128 For that reason, Justice Breyer held that Geier’s
120
Id. at 879-80. In previous iterations of FMVSS 208, the DOT had found it
difficult to get manufacturers to voluntarily install air bags because of the cost of air
bags was significantly higher than that of automatic seat belts. Id. at 878-879. The air
bag cost was one of the considerations behind the gradual phase-in program. Id. at 87980.
121
Id. at 881 (emphasis in original).
122
Brief for the United States as Amicus Curiae Supporting Affirmance at 2526, Geier.
123
Geier, 508 U.S. at 883.
124
Id.
125
Id. at 877-78.
126
Id. at 865, 881.
127
Id. at 881.
128
Geier, 508 U.S. at 881.
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state action must be preempted in order to allow the federal
regulation to achieve the purpose for which it was enacted.129
IV.
GEIER’S LEGACY
At the time, Geier embodied the result of more than a
decade’s worth of case law concerning the preemption of
common law product liability actions. The Geier holding
combined the analysis of several leading cases into a single
approach to examining preemption questions. The holding
clarified the important question of how express preemption and
saving clauses are to be interpreted together and provided a
limited solution under which the needs of both the federal
government and the states were met.130 Furthermore, contrary
to the opinion of several commentators,131 the Geier decision did
take into account the presumption against preemption. Lastly,
the holding made clear the importance of agency opinions in
determining the preemptive reach of complex federal
regulations.
A.
The Express Preemption Clause and the Saving Clause
Among its other distinctions, the Geier decision will
probably be most remembered for its reading of the express
preemption clause in conjunction with the saving clause.132
Specifically, the majority held that state actions can be
preempted under “ordinary preemption principles” even where
a Congressional act contains both an express preemption and a
savings clause. 133
129
Id. at 881-82. Justice Breyer continued by saying that because this case
dealt with conflict preemption, the dissent’s insistence upon a clear statement of
preemptive intent was not required. Actual conflict preemption does not require the
intent to preempt the state law, but rather a federal objective that would be hindered
by the state action. Id. at 884-85.
130
See Bough & Johnson, supra note 54, at 34 (citing the attorneys for Alexis
Geier as saying that the preemption holding was a very narrow one, and was a victory
for consumers).
131
E.g., Raeker-Jordan, supra note 13, at 2 (arguing that Geier “removed any
protections the presumption provided to federalism principles”); Davis, supra note 2, at
971 (stating that Geier along with other recent court holdings has effectively erased the
presumption against preemption, and instead created a presumption in favor of
preemption).
132
See Geier, 529 U.S. at 869 (recognizing that when it had previously dealt
with the same statute it had left open the question of how the saving clause affected
the express preemption clause).
133
Id. at 867-69. The Geier holding has been criticized for not defining,
“ordinary preemption principles.” See Raeker-Jordan, supra note 13, at 12. While such
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This holding should be viewed as an extension of the
Court’s relatively recent interpretations of express preemption
clauses. In 1992, the Supreme Court decided in Cipollone v.
Liggett Group, that the express preemption clause in the
federal law dealing with labeling on cigarette packs preempted
any claim for failure to warn about the dangers of cigarette
smoking.134 In the Cipollone holding, Justice Stevens, writing
for the plurality, advocated a narrow reading of any express
preemption clause.135 Although Cipollone generated some doubt
as to whether an express preemption clause prohibited an
implied preemption analysis,136 Justice Thomas made clear in
Freightliner Corp. v. Myrick137 that Cipollone did not hold that
the existence of an express preemption clause categorically
foreclosed an implied preemption analysis. 138
Based on Cipollone, Justice Thomas’s conclusion in
Freightliner is entirely logical. For example, suppose Congress
had enacted an express preemption clause as part of the
Agricultural Adjustment Act,139 and the clause was narrowly
interpreted by a court not to preempt all common law actions.140
a definition might have been useful from a completeness standpoint, the lack thereof
should not be viewed as a fatal flaw in Justice Breyer’s reasoning. In stating that
“ordinary preemption principles apply,” he was simply referring to the Court’s long
history of preemption holdings, which have been previously summarized by several
courts and did not necessarily need to be repeated. E.g., English v. Gen. Elec. Co., 496
U.S. 71, 78-79 (1990) (describing the three circumstances under which Congress can be
said to have preempted state law, express preemption, field preemption, and conflict
preemption); La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 368-369 (1986) (providing a
brief synopsis of the preemption doctrine); Jones v. Rath Packing, 430 U.S. 519, 525526 (1976) (providing a summary of the presumption against preemption and the ways
federal law can preempt state law).
134
Cipollone v. Liggett Group, Inc., 505 U.S. 504, 530-531 (1992)
(summarizing the Court’s holding).
135
See id. at 529 (explaining how the express preemption clause should be
“fairly but narrowly construed”).
136
See Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995) (“According to
respondents and the Court of Appeals, Cipollone v. Liggett Group, held that implied
preemption cannot exist when Congress has chosen to include an express preemption
clause in a statute.”).
137
Id. Like Geier, Freightliner also dealt with the National Traffic and Motor
Vehicle Safety Act, however in that case, Justice Thomas chose to reach the holding
without addressing the saving clause. See Geier, 529 U.S. at 869 (interpreting
Freightliner as not addressing the saving clause).
138
Freightliner, 514 U.S. at 288-89.
139
7 U.S.C. § 602 (2000).
140
The plaintiff in Geier, as well as several commentators, have advocated
this type of narrow reading of preemption clauses. See Brief for Petitioner at 18-25,
Geier (arguing that the wording of the Safety Act’s express preemption clause shows
that it does not preempt state common law actions, this position was rejected by the
Court in its holding); Michael L. Russell, Beyond Geier: Federalism Faces an Uncertain
Future, 11 SETON HALL CONST. L.J. 69, 83-85 (2000) (reviewing how many state
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Pursuant to the Act, the Department of Agriculture
promulgated a regulation stating that all avocados sold in
interstate commerce must contain no more than 7% oil.
However, suppose a California court, interpreting a California
state regulation, declared that an avocado had to contain
between 8% and 10% oil in order for it to be considered ripe. In
this scenario, it would be impossible to obey both federal and
state requirements.141 Therefore, in accordance with the
Supremacy Clause, the Department of Agriculture’s regulation
must be allowed to implicitly preempt the California
regulation. Otherwise, no out-of-state avocados could be
brought into California.142 This same concern applies to Justice
Breyer’s interpretation of the saving clause. If the saving
clause were interpreted to foreclose all preemption, then a
situation could arise where the states, through common law,
could achieve what they could not through positive
enactments—the nullification of a federal act.143
Thus, in deciding Geier, the Court preserved Congress’s
power to regulate uniformly across the nation. In a situation
such as Geier, if the District of Columbia, through common law,
declared that a manufacturer was negligent for not installing
airbags in cars made in 1984, that decision would have ripple
effects throughout the nation.144 Due to the mobile nature of the
supreme courts, before Geier, had held that the Safety Act’s dual express preemption
and saving clauses acted to preserve almost all state common law actions); Carroll,
supra note 14, at 820-823 (arguing that an express preemption clause, along with a
saving clause and the presumption against preemption, should be interpreted together
to indicate that Congress had not intended to preempt any state tort claims, and that
the majority in Geier had held incorrectly). However, just such a narrow interpretation
was what Justice Scalia was concerned about in his concurrence/dissent from the
Cipollone holding. See Cipollone, 505 U.S. at 547-48 (Scalia, J. concurring in the
judgment in part and dissenting in part). In addition to advocating a narrow reading of
the express preemption clause, Justice Stevens in Cipollone had also declared that
when an act contains an express preemption clause, no implied preemption analysis
should be undertaken. Id. at 517. However, Justice Scalia rightly pointed out that
these two holdings would produce a result whereby states could be allowed to impose
regulations entirely contrary to the federal law. Id. at 547-548 (Scalia, J. concurring in
the judgment in part and dissenting in part).
141
See English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990) (asserting that in a
situation where it is impossible to meet both the federal and state regulation, that
implied preemption dictated that the state regulation could not stand).
142
Cf. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143
(1964) (giving a hypothetical similar to this one, however not considering the express
preemption clause).
143
See Geier v. Am. Honda Motors Co., 529 U.S. 861, 870 (2000) (discussing
the effects of the saving clause).
144
Cf. Wickard v. Filburn, 317 U.S. 111, 127-28 (1942) (arguing, in relation to
the Commerce Clause, that even a small individual farmer’s actions can have an effect
on the national economy).
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nation’s economy, in which cars can be bought and sold in
many different states, such a holding would force all car
manufacturers to meet the standards of the strictest state on a
given issue.145 This rule would allow a small group of states, or
even a single state, to frustrate congressional objectives of
uniformity and potentially unilaterally establish the safety
standards for the entire nation.146 By declaring that “ordinary
preemption” principles still apply in the presence of a saving
clause, the Court in Geier was trying to establish a functional
standard that other courts could use, rather than a formalistic
approach which would have truly represented a “seismic
shift”147 in the preemption doctrine.
While this holding may appear to be at odds with the
presumption against preemption, the federalism arguments in
favor of allowing implied preemption are similar to those used
to justify the presumption against preemption.148 Although it is
true, as commentators and Justices alike have agreed, that the
presumption against preemption is in place to protect the
federalist structure of our government,149 it should not be
forgotten that the Framers of the Constitution also believed the
federal government should, when appropriate, regulate the
entire nation uniformly.150 Justice Stevens argued for the
dissent in Geier that the presumption against preemption acts
as a safeguard to maintain the federal-state balance.151 A true
145
See United States v. Locke, 529 U.S. 89, 113-116 (2000) (noting, in its
preemption discussion, the out-of-state effects of four Washington State maritime laws,
and holding that each law was preempted, in part, because of the laws out-of-state
effects); Supreme Court 1999, Leading Cases, supra note 60, at 346-47.
146
Supreme Court 1999, Leading Cases, supra note 60, at 346-47; Geier, 529
U.S. at 872 (arguing in favor of allowing ordinary preemption principles to apply by
noting that if ordinary preemption principles did not apply, then Congress would have
created a law, which by design would have been self-defeating).
147
Davis, supra note 2, at 1012 (“Geier represents a seismic shift in the
Court's preemption doctrine.).
148
See discussion supra Part II.B (describing how the Articles of
Confederation were too weak because they lacked an appropriate enforcement
measure, and how the Framers believed that the Supremacy Clause would provide this
enforcement mechanism).
149
Carroll, supra note 14, at 805-08 (discussing how the evolution of the
presumption against preemption was an attempt by the court to regulate the federal
structure and in the 1980’s was a response to growing federal power); Geier, 529 U.S.
at 907 (Stevens, J., dissenting) (“Our presumption against preemption is rooted in the
concept of federalism.”).
150
See discussion supra Part II.A. See also Supreme Court 1999, Leading
Cases, supra note 58, at 347 (stating that the problem of different states present
disparate regulatory schemes was among those that the Framers intended to prevent
when they gave the federal government the power to regulate the nation uniformly).
151
Geier, 529 U.S. at 907-09 (Stevens, J., dissenting) (arguing that the
presumption against preemption acts to ensure that Congress and not the Judiciary
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balance, however, should require a quid pro quo between the
federal and state governments: just as the federal government
should not be allowed to usurp the state’s power,152 the Court
should not be too quick to allow the states to usurp the federal
government’s duly apportioned powers.153 Allowing all state
common law actions to be preserved by the saving clause would
be just as dangerous to the federal-state balance as ignoring
the presumption against preemption and allowing the express
preemption clause to trump all state common law actions.154
In keeping with this need for balance, Justice Breyer’s
reading of the express preemption clause in light of the saving
clause should not be seen as a one-sided ruling in favor of the
powers of the federal government.155 This interpretation may
appear to create some “tension”156 between the “polar magnetic
field[s]” of the express preemption clause and the saving
clause.157 Justice Stevens in Cipollone158 stated that a conjoined
strikes the appropriate federal-state balance). Justice Stevens wrote that it is the
structural safeguards “inherent in the normal operation of the legislative process” that
will guarantee that the balance is maintained between the power of the federal
government and that of the state. Id. at 907.
152
See Hillsborough County, Fla. v. Automated Med. Labs., Inc. 471 U.S. 707,
707 (1985) (stating that to assume all state regulations are preempted simply because
a federal agency has produced a complex set of regulations in a given area would be
“inconsistent with the federal-state balance” the court has strived to maintain in its
Supremacy Clause decisions).
153
It is interesting to note that four of the five justices who voted in the
majority in Geier have in the past two decades been the most active champions of
“states rights.” Those justices are Chief Justice Rehnquist, Justice O’Connor, Justice
Scalia, and Justice Kennedy. See Russell, supra note 142, at 89 (2000) (speculating as
to reasons why Justices O’Connor and Scalia, traditionally conservative “states rights”
justices, voted in the majority). See also Herman Schwartz, The States’ Rights Assault
on Federal Authority, in THE REHNQUIST COURT: JUDICIAL ACTIVISM ON THE RIGHT 155,
155-67 (Herman Schwartz ed., 2002) (arguing that these four justices, along with
Justice Thomas, have combined to form a solid conservative majority that strongly
favors states rights).
154
See United States v. Bass, 404 U.S. 336, 349 (1971) (holding that, as a rule
of statutory interpretation, Congressional intent must be clear before a court can hold
that Congress has “significantly changed the federal-state balance”).
155
See Geier, 529 U.S. at 871 (discussing how Congress had inserted the
saving clause in order to indicate that it still intended to allow for the compensation of
victims).
156
Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984) (discussing
Congress’s occupation of the field of nuclear energy and its desire to maintain common
law liability).
157
M. Stuart Madden, Federal Preemption of Inconsistent State Safety
Obligations, 21 PACE L. REV. 103, 158 (2000) (lamenting what he perceived to be the
Court’s failure to reconcile Cipollone’s favoring of the express preemption clause and
Geier’s favoring of the saving clause).
158
This argument is based on a statement the Court made in Cipollone v.
Liggett Group Inc., 505 U.S. 504, 517 (1992). Justice Stevens, writing for the Court in
Cipollone, held that congressional enactment of an express preemption prevision
precludes further preemption analysis. Id. Justice Stevens based this opinion on the
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reading of the express and implied preemption clause, as found
in Geier, violated the interpretive maxim of expressio unius est
exclusio alterius. 159 However, the Court pointed out in Geier, as
well as in Silkwood v. Kerr-McGee Corp.,160 that this
interpretive tension is a reflection of a “congressional
compromise”161 between tort law’s traditional compensatory role
in our system and the Federal government’s need to establish
uniform standards.162
Under the Geier opinion, Congress and the DOT’s strong
desire to aid interstate commerce by creating uniform
standards163 is recognized in the express preemption of all
“familiar principle of expressio unius est exclusio alterius,” that Congress’s enactment of
a preemption provision foreclosed preemption being found (or not found) on a different
basis. Id. However, this position was later interpreted and modified by the Court in
Freightliner Corp. v. Myrick, 514 U.S. 280, 288-89 (1995). In Freightliner, Justice
Thomas held that, at most, a Court could infer from an express preemption clause that
Congress did not intend to preempt beyond the stated express preemptive reach. Id. at
288. As a result, he held that preemption was not explicitly foreclosed for those issues
beyond the express preemption clause’s scope. Id. This interpretation laid the basis for
Justice Breyer’s declaration that the express preemption clause must be read in light of
the saving clause. Geier, 529 U.S. at 869, 872. In addition to the basis created by
Freightliner, Justice Breyer’s interpretation was also consistent with Cipollone in that
he was not stating that the further preemptive scope provided by implied preemption
was in addition to the express preemption. Id. at 870-71. Instead, he was holding that
the saving clause, by preserving common law actions, had created an additional need to
examine implied preemption to ensure that common law actions did not defeat the
congressional objectives for the act. Id. at 871-72.
159
BLACK’S LAW DICTIONARY 602 (7th ed. 1999) (“A canon of construction
holding that to express or include one thing implies the exclusion of the other, or of the
alternative.”).
160
See Silkwood, 464 U.S. at 256 (stating that the Court recognized that some
tension existed between Congress’s occupation of the field of nuclear energy, and the
Court’s interpretation that common law liability still exists, but explaining that the
Court could not have held any other way because the tension was created by Congress,
and may have been intended as off-setting factors to maintain some local
accountability for nuclear plants).
161
See Geier, 529 U.S. at 871 (observing that the Court recognized that two
policies existed, national uniformity and victim compensation, but that it could find
“nothing in any natural reading of the two” that would indicate a preference of one
policy over the other). See also Brief for the United States as Amicus Curiae
Supporting Affirmance at 15, Geier (dismissing any tension within the Safety Act as
being a product of Congress’s intentional compromise between the “interests in
uniformity and [the need to allow] States to compensate accident victims” as
represented in the inclusion of both an express preemption and a saving clause).
162
Geier, 529 U.S. at 870-71 (interpreting the language in the express
preemption and saving clauses to be a neutral reflection of Congress’s dual goals of
national uniformity and victim compensation). See also Rogers v. Cosco, Inc., 737
N.E.2d 1158, 1165 (Ind. App. Ct. 2000) (interpreting the Safety Act’s having both a
preemption and a saving clause as a “congressional compromise” between a national
interest in uniformity and a local interest in compensating accident victims based upon
common law tort standards).
163
Geier, 529 U.S. at 871 (“[T]he preemption provision itself reflects a desire
to subject the industry to a single, uniform set of federal safety standards.”).
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positive state legislative enactment.164 At the same time, the
Geier holding preserves the important role the states play in
compensating victims so long as this compensation system does
not obstruct Congress’s objectives for the federal regulation.165
While the tension created by this holding makes it impossible
to create a single bright-line-rule,166 it strikes the appropriate
balance between Congress’s desire to enact uniform legislation
and the states’ need to compensate victims.
B.
Geier and the Presumption Against Preemption
As has been alluded to above, Geier did not “eradicate
the presumption against preemption.”167 Instead, the Court
found that an appropriate examination of the traditional
preemption factors showed that the regulation in question
overcame the presumption.168 The presumption has never been
interpreted to mean that the federal government should never
preempt state law.169 Rather, it is important that the Court
should not inhibit Congress’s attempts to regulate an
industry.170
164
Id.
Id. (stating that “occasional nonuniformity is a small price to pay for a
system” that allows juries to establish standards and thereby compensate victims);
Brief for the United States as Amicus Curiae Supporting Affirmance at 15, Geier
(arguing that so long as implied preemption is preserved there is no reason to think
that “tort liability will impair the purpose of the [Safety] Act”).
166
See Russell, supra note 142, at 91 (stating with dismay that “[t]he Court
passed on an . . . opportunity to clarify the law of federal pre-emption,” and ended up
just raising more questions); Carroll, supra note 13, at 800 (expressing a concern that
the preemption doctrine after Cipollone, including Geier, has been “vague and
overlapping,” and has created a situation where lower courts have had a very hard
time consistently applying the rules).
167
Raeker-Jordan, supra note 12, at 1 (quoting from the title of the article).
168
Geier, 529 U.S. at 885 (“While we certainly accept the dissent’s basic
position that a court should not find pre-emption too readily in the absence of clear
evidence of a conflict, for the reasons set out above we find such evidence here.”)
(internal citations omitted). Contra Geier, 529 U.S. at 906-907 (Stevens, J., dissenting)
(arguing that the majority simply ignored the presumption against preemption).
169
See CSX Transp. v. Easterwood, 507 U.S. 658, 664 (1993) (“[A] court
interpreting a federal statute pertaining to a subject traditionally governed by state
law will be reluctant to find preemption.”) (emphasis added). Contra Raeker-Jordan,
supra note 12, at 31 (arguing that the presumption against preemption forces the
Court in deciding Geier to assume that Congress did not see any conflict between
federal and state law, and therefore the presumption mandates the Court not to find a
conflict).
170
Supreme Court 1999 Term, Leading Cases, supra note 60, at 347.
165
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Justice Stevens and several commentators171 have
criticized the Court’s narrow application of the presumption
because it granted too much power to the federal government
to govern an issue that the states had traditionally occupied.172
Justice Stevens even went so far as to imply that the majority
had ignored the presumption against preemption entirely.173
Most of these critics would have preferred that physical
impossibility conflict preemption be the only form of implied
conflict preemption.174 However, if the Court had taken such a
narrow approach to implied preemption it would have overly
limited Congress’s constitutional powers.175 Since early in the
presumption’s history, it has been clear that implied and
obstacle preemption both provide sufficient justification for
overcoming the presumption.176 If the Court insisted on physical
171
Geier, 529 U.S. at 907-08 (Stevens, J., dissenting). See also id. at 885
(Breyer, J., majority) (interpreting the dissent’s position as stating that in “frustrationof-purpos[e]” cases where the agency does not declare its preemptive intent, the dissent
would prefer the state action be clearly an obstacle to the congressional purpose than
have the state action be preempted); Nelson, supra note 2, at 231-32 (“Under the
Supremacy Clause, preemption occurs if and only if state law contradicts a valid rule
established by federal law. . . .”), Betsy J. Grey, Make Congress Speak Clearly: Federal
Preemption of State Tort Remedies, 77 B.U. L. REV. 559, 622-27 (1997) (proposing that
only situations where state law and federal law can not both be satisfied, are the only
situations where preemption should occur). But see Geier, 529 U.S. at 908 n.22
(Stevens, J., dissenting) (responding to Professor Nelson’s proposition by saying that
the presumption protects against an over reaching federal judiciary, and dismissing
Nelson’s request to limit all of preemption).
172
See Russell, supra note 142, at 91 (arguing that there was an ambiguity as
to Congress’s preemptive intent in the Safety Act and that the presumption against
preemption would dictate that there was no preemption, ultimately concluding that the
presumption may no longer exist); Davis, supra note 2, at 1012-1013 (proposing that
Geier represents a “seismic shift” in the Court’s interpretation of preemption cases,
that the Court has re-written the presumption, and in fact created an assumption in
favor of preemption).
173
Geier, 529 U.S. at 907-08 (Stevens, J., dissenting).
174
Carroll, supra note 13, at 820-822 (stating that “physical impossibility”
should functionally be the only form of preemption the court recognizes absent a clear
statement by Congress as to their preemptive intent); Davis, supra note 2, at 1014
(asserting that in a “perfect world of preemption doctrine” implied preemption would
only be based on occupation of the field and physical impossibility conflict).
175
Even Justice Stevens, writing for the dissent in Geier, argued that it
should be Congress’s role to maintain the proper federal-state balance. Geier, 529 U.S.
at 907 (Stevens, J., dissenting) (“The signal virtues of this presumption [against
preemption] are its placement of the power of pre-emption squarely in the hands of
Congress, which is far more suited than the Judiciary to strike the appropriate
state/federal balance . . . .”). If that were the case, then limiting implied conflict
preemption only to physical impossibility conflict preemption would constrain
Congress’s ability to regulate that balance.
176
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (saying after its
famous interpretation of the presumption, that Congress’s “clear and manifest
purpose” could be “evidenced in several ways,” including that “the object sought to be
obtained by the federal law and the character of obligations imposed by it may reveal
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impossibility before declaring implied preemption, then
Congress would never be able to mandate anything more than
minimum standards.177 A “physical impossibility only” rule like
the one proposed would create a “one-way ratchet” that would
limit the federal government’s effectiveness178 Congress could
establish one standard, and then any state could establish
overlapping stricter standards that merely make it physically
possible to comply with both the federal and state laws.179 Such
a ruling could in effect eviscerate the purpose behind any
federal law.180 Unless Congress went out of its way to detail the
entire possible preemptive scope of every law and regulation,181
Congress would never be able to “expand industry discretion or
to lower tort standards.”182
In Geier, there were numerous indications of the DOT’s
intent behind FMVSS 208, and it was clear that if the Court
allowed Geier’s claim to continue, it would have greatly
interfered with the DOT’s objectives.183 This is why the Court
found substantial weight to overcome the presumption against
preemption, and did not, as suggested, ignore the presumption
altogether.184 In Geier, the Court was interpreting a regulation
passed by an agency under the authority granted it by
Congress.185 By combining the DOT’s long-held explanation of
the same purpose . . . . Or the state policy may produce a result inconsistent with the
objective of the federal statute”).
177
Geier, 529 U.S. at 908 n.22 (Stevens, J., dissenting) (refuting
commentator’s calls for the elimination of all frustration-of-purpose preemption, by
arguing that the presumption against preemption can eliminate the dangers of judicial
overreaching).
178
Supreme Court 1999, Leading Cases, supra note 60, at 344.
179
Id.
180
Id. (declaring that a pure physical impossibility conflict preemption only
doctrine would be “intractable” as a functional solution because it would “allow state
courts to frustrate congressional will by setting countervailing tort standards”).
181
See Geier, 529 U.S. at 884 (rejecting the dissent’s proposal that the Court
require an “agency statement of preemptive intent as a prerequisite to” finding conflict
preemption). Justice Breyer pointed out that, unlike express preemption conflict
preemption, physical impossibility preemption turns on the existence of an actual
conflict that would inhibit the federal law. Id. He continued by stating that it is safe to
assume that the federal government would not take the time to write a law or
regulation only to have it superceded by state law. Id. at 885.
182
Supreme Court 1999, Leading Cases, supra note 60,at 344.
183
Geier, 529 U.S. at 877-82 (stating the reasons provided by the DOT for
implementing FMVSS 208).
184
Id. at 883 (asserting that the majority was not placing the burden on the
plaintiffs to show there was not preemption, but rather holding that the DOT’s
arguments in favor of conflict were more persuasive than Geier’s arguments against
preemption).
185
Id. (noting that Congress had delegated to the DOT the needed authority
to implement the Safety Act).
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the purposes behind FMVSS 208 and the history of the Act as
interpreted in prior Supreme Court cases the Court was able to
accurately determine Department’s intentions for FMVSS
208.186 The Court made clear that the DOT interpreted the
regulation’s objective to be the gradual phase-in of multiple
passive restraint devices.187 This determination was not a
formulaic, statutory approach to discerning the department’s
intent,188 but rather a functional approach that took into
account the real-life factors the Department was evaluating.189
This method of analysis provides lower court judges enough
flexibility to interpret a statute’s preemptive effect in a
pragmatic manner while curtailing their ability to stray from
the intention of the rule maker.
C.
The Opinion of the Department of Transportation
One of Geier’s final clarifications of the preemption
doctrine is Justice Breyer’s deference to the opinion of the DOT
throughout the holding.190 In fact, the Court’s ultimate holding
that Geier’s claim was implicitly preempted was not the
position advocated by either Geier191 or Honda192 in their briefs
to the Court. Instead, Justice Breyer’s written decision followed
the line of reasoning advocated by the Solicitor General on
behalf of the DOT.193 This use of a federal agency to inform the
186
Id. at 878-880.
Id. at 879.
188
In dissent, Justice Stevens argued that even when implied preemption is
the issue, all regulations must declare their preemptive intent with some specificity.
Geier, 529 U.S. at 908 (Stevens, J., dissenting). In response, Justice Breyer rightly
pointed out that to require such a statement in conflict preemption situations would
simply be too rigid an approach, and would lead to a nullification of the regulation
which the “agency, and therefore Congress, is most unlikely to have intended.” Id. at
885.
189
See Supreme Court 1999, Leading Cases, supra note 60, at 343 (“The
Court’s implied preemption analysis in Geier reflects a victory of function over form.”).
This more functional approach is also in line with prior cases’ approaches to the
interpretation of Congress’s intent. In Jones v. Rath Packing, Justice Thurgood
Marshall declared that an inquiry into Congress’s intent must take into account “the
relationship between state and federal laws as they are interpreted and applied, not
merely as they are written.” 430 U.S. 519, 526 (1976).
190
Geier, 529 U.S. at 883-884 (explaining why the majority was relying on the
opinion of the DOT).
191
See discussion supra note 98 (discussing the argument Geier presented in
her brief).
192
See discussion supra note 86 (discussing the argument Honda presented in
its brief).
193
See discussion supra note 103 (discussing the argument the Solicitor
General presented in its brief on behalf of the DOT). See also Bough & Johnson, supra
note 56, at 34 (noting that Justice Breyer in Geier “adopted almost verbatim” the
187
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Court is both appropriate and beneficial to future courts
dealing with complex federal regulations preempting state
actions.194
Justice Breyer’s conclusions about the role the DOT
should play in the preemption analysis are in line with the
Supreme Court’s holding in several previous cases. As far back
as Bowles v. Seminole Rock & Sand Co.195 in 1945, the Court
has held that an administrative interpretation of a regulation
is controlling unless it is “plainly erroneous or inconsistent
with the regulation.”196 In addition, so long as an agency is
acting within its congressionally-delegated power, that agency
may independently preempt a state action.197 Thus, in City of
New York v. F.C.C.,198 the Court combined its previous holdings
and made clear that both the intent of Congress and the intent
of the agency should be considered when determining the
preemptive reach of a regulation.199 More recently, in Medtronic,
Inc. v. Lohr,200 the Court examined whether the Food and Drug
Administration’s (FDA) approval of a medical device preempted
a state action for negligence and strict liability.201 In Medtronic,
opinion of the Solicitor General). Bough & Johnson argued that the majority’s adoption
of the Solicitor General’s opinion in fact helped to limit the scope of the preemption
holding. Id. They noted that the Solicitor General and the Court both left open the door
for suits against manufacturers for specific defects in the design of the restraints; a
door that may not have been open had the Court found express preemption. Id.
194
See Geier, 529 U.S. at 883 (commenting on the complex nature of the issues
surrounding FMVSS 208 and asserting that the agency is “likely to have a thorough
understanding of its own regulation”).
195
325 U.S. 410 (1945) (dealing with an interpretation of the General
Maximum Price Regulation by the Office of Price Administration, the Court held that
when considering an administrative regulation the ultimate criterion should be the
administrative interpretation).
196
Id. at 414.
197
La. Pub. Serv. Comm’n v. F.C.C., 476 U.S. 355, 369 (1986) (describing how
the F.C.C. could preempt state depreciation charges, though ultimately holding that
the F.C.C. lacked the jurisdiction to do so).
198
486 U.S. 57 (1988) (holding that the F.C.C. clearly had intended to displace
all technical standards governing the quality of cable TV signals, and that such a
decision was within the agency’s congressionally delegated authority).
199
Id. at 64. In City of New York, the Court first drew upon precedent to make
clear that a regulation created by a federal agency, acting within its appropriately
delegated authority, will have just as much preemptive force as a law passed by
Congress. Id. Next, the Court stated that in such situations a narrow focus on just the
preemptive intent of Congress would be misdirected. Id. Rather that focus should be
placed on the powers and intent of the agency to which the authority was delegated. Id.
200
518 U.S. 470, 495-496 (1996).
201
Id. at 474. The issue was over a grandfather clause under which certain
medical devices could be approved by the Food and Drug Administration (FDA) without
having to undergo the rigorous pre-market approval process. Id. at 477. The Medical
Device Amendments of 1976 (MDA) allowed certain medical devices that were
“substantially similar” to those in existence before 1976 to be approved without
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as in Geier, the primary question was not whether the federal
statute had preempted the state action, but rather whether the
FDA requirements for approval preempted the action.202 By
determining that the FDA was in a unique position because it
had originally promulgated the regulation; the Court in
MedTronic gave “substantial weight to the agency’s view of the
statute.”203 Ultimately, the Supreme Court agreed with the
conclusion reached by the FDA, holding that its approval
requirements do not preempt state action.
In light of this history, it is not surprising that Justice
Breyer would defer to the opinion advocated by the DOT in
Geier. If Congress’s intent is the “touchstone” of any
preemption analysis of a congressional statute,204 then the
position of an agency should hold the same position in the
preemption analysis of a regulation. Unlike Congress, however,
an agency is normally required to speak in a single voice as to
the reasons underlying its regulations205 and can even file briefs
as amicus curiae to the Court expressing its opinion about the
regulation.206 The agency’s single voice means that its
preemptive intent is normally much simpler to discern. It is
important to note that in both Medtronic and Geier (and as will
be seen later in Sprietsma v. Mercury Marine207) the agency
opinion the Court referred to was not one that the agency had
adopted in preparation for litigation, but rather one that had
been either part of the original regulations as they were
promulgated,208 or were a long expressed opinion of the
agency.209 This distinction is important; it provides a level of
undergoing the approval process. Id. at 477-478. The question before the Supreme
Court was whether a state action for negligent design was preempted by the MDA
when the device in question had not undergone the pre-market approval process. Id. at
478.
202
Id. at 496.
203
Id.
204
Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963).
205
See, e.g., Medtronic v. Lohr, 518 U.S. 470, 496 (1996) (referring to the FDA
regulations implementing the process to request an advisory opinion from the FDA
about whether a state requirement is preempted by the statute).
206
See, e.g., Brief for the United States as Amicus Curiae Supporting
Affirmance at 15-30, Geier (explaining the DOT’s opinion that FMVSS 208 implicitly
preempted Geier’s claim).
207
See discussion infra Part V.B.
208
See Medtronic, 518 U.S. at 496-497.
209
See Geier v. Am. Honda Motors Co., 529 U.S. 861, 883-884 (2000) (noting
that the opinion of the DOT was one they had advocated “consistently over time”). In
fact, Justice Breyer, made a point to note that the Court had no reason to suspect the
DOT’s position to be anything other than its “‘fair and considered judgment on the
matter.’” Id. at 884 (quoting Auer v. Robbins, 519 U.S. 452, 461-462 (1997)). He also
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reliability to the agency’s opinion.210 This combination of
efficiency and reliability in the use of agency opinions should
and has guided courts in their preemption holdings.211
V.
PRODUCT LIABILITY PREEMPTION SINCE GEIER
As a statement of recent Supreme Court thinking on
preemption, Geier has been referenced as a model for how to
approach a preemption case, especially cases involving both an
express preemption clause and a saving clause. Except for
areas where lower courts have interpreted a federal regulation
as offering the defendant a choice, most of these courts have
approvingly cited Geier’s interpretation of the express
preemption and saving clause, but have shown restraint in
following Geier in preempting state law actions.212 Several of
these cases have preserved the presumption against
preemption by distinguishing those statutes that offer
defendants a choice and those that represent a minimum
standard.213 The Supreme Court in Sprietsma v. Mercury
Marine recently supported many of the lower courts’
interpretations that Geier did not indicate a shift to more
preemption, but rather showed a flexible approach to the
complex problem of interpreting an express preemption and
saving clause together.214
distinguished the Court’s opinion in Hillsborough County v. Automated Med. Lab., Inc.
where the F.C.C. had not, at any time, concluded that a conflict existed between the
federal and state regulations. Id. (citing Hillsborough County v. Automated Med. Lab.,
Inc., 471 U.S. 707, 721 (1985)).
210
See id.
211
See Oxygenated Fuels Assoc. Inc. v. Davis, 331 F.3d 665, 672 (9th Cir.
2003) (distinguishing Geier on the grounds that the Supreme Court’s opinion was
consistent with that of the DOT, whereas in Oxygenated Fuels the EPA had not
expressed an opinion concerning preemption, and therefore any comparison between
the two cases must be viewed in that light).
212
See, e.g., Colon v. BIC USA Inc., 136 F. Supp. 2d 196 (S.D.N.Y. 2000)
(interpreting the Consumer Product Safety Act’s express preemption and saving
clauses to allow implied preemption, but ultimately holding that the plaintiff’s action
was not preempted).
213
See, e.g., Stone v. Frontier Airlines, Inc., 256 F. Supp. 2d 28 (D. Mass.
2002) (drawing a distinction between regulations that offered a choice and those simply
requiring an action be taken, holding that the regulation in question fell into the latter
category and therefore did not preempt the state action).
214
See Sprietsma v. Mercury Marine, 729 N.E.2d 45, 49-50, 63 (2002) (finding
that the Federal Boat Safety Act’s express preemption and saving clauses should be
read together to allow implied preemption, but ultimately holding that the Coast
Guard’s decision not to regulate propeller guards did not preempt a state action which
required propeller guards).
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Geier’s Influence Interpreting Express Preemption and
Saving Clauses
Justice Breyer’s interpretation of the saving and express
preemption clauses has clearly been the most recognized
holding to result from the Geier decision.215 Nevertheless,
contrary to the opinion expressed by several commentators,216
the decision has not lead to a vast number of courts using
implied preemption to expand federal powers and usurp state’s
actions.217 In fact, several circuits have overruled pre-Geier
district court rulings of express preemption and reinstated
previously preempted cases.218 These holdings have shown that
Justice Breyer’s interpretation of the preemption and saving
clauses has had the result that he had anticipated—it has
preserved what he saw as Congress’s intent to encourage
215
The Supreme Court has referenced Geier for this point at least two times
since the case was handed down. First, in 2001 Chief Justice Rehnquist referenced
Geier for the idea that neither an express preemption nor a saving clause will bar the
ordinary working of preemption. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341,
352 (2001). In late 2002, Justice Stevens expressly referred to Geier in his
interpretation of Federal Boating Safety Act’s express preemption and saving clauses.
Sprietsma, 537 U.S. at 52. Additionally, lower courts have referenced Geier for this
point in numerous diverse cases. See, e.g., Russell v. Sprint Corp., 264 F. Supp. 2d 955,
961 (D. Kan. 2003) (holding that because of its saving clause, the Federal
Communications Act does not preempt all state and local regulations regarding market
entry, or rate changes by a cell phone service company); Secured Envtl. Mgmt., Inc. v.
Tex. Natural Res. Conservation Comm’n, 97 S.W.3d 246 (Tex. Ct. App. 2002)
(referencing Geier in declaring that because of the Federal Resource Conservation and
Recovery Act’s saving clause, a particular state’s hazardous waste statute is only
preempted if it conflicts with the goals of the federal act).
216
See e.g., Alexander K. Haas, Casenote, Chipping Away at State Tort
Remedies Through Pre-emption Jurisprudence: Geier v. American Honda Motor Co., 89
CAL. L. REV. 1927 (2001) (declaring that Geier strengthens the power of the federal
government to preempt state laws, and implying that the holding will lead to fewer
individuals being able to sue); Davis, supra note 2, at 1015 (declaring that the Supreme
Court’s preemption doctrine provides a preference for preemption that would lead to
more preemption); Jack B. Weinstein, The Restatement of Torts and the Courts, 54
VAND. L. REV. 1439, 1442 (2001) (stating that the modern preemption doctrine makes
him nervous for the “bottom-up” protection of jury-decided cases).
217
See Bough & Johnson, supra note 56, at 34 (noting that the attorneys for
Alexis Geier believed that the holding was a victory for plaintiffs and consumers
because it flat out rejected Honda’s express preemption argument, and narrowly
construed implied preemption based on choice).
218
See, e.g., Leipart v. Guardian Indus., Inc., 234 F.3d 1063 (9th Cir. 2000)
(using Geier’s interpretation of the Safety Act’s preemption and saving clauses as an
analogy, the Circuit Court overruled a pre-Geier district court holding which said that
the Consumer Product Safety Act preempted a plaintiff’s common law product liability
and tort claims); Choate v. Champion Home Builders, 222 F.3d 788, 793 (10th Cir.
2000) (following the Supreme Court’s holding in Geier to declare that the plaintiff’s
claims were neither expressly or implicitly preempted by the Manufactured Housing
Act).
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uniform standards across the country while preserving the
“necessary compensation to victims.”219
The effect of Justice Breyer’s interpretation is
fundamental to any preemption decision involving similar
preemption clauses. Several lower courts, when interpreting
similar clauses, have first declared that the express preemption
and saving clauses preserve the “ordinary working” of the
preemption doctrine,220 and then have examined whether the
federal law or regulation conflicts with the state action.221 Just a
few months after the Supreme Court handed down Geier, the
Tenth Circuit decided Choate v. Champion Home Builders.222 In
Choate, the manufacturers of a home were defending against a
product liability action for not installing a battery powered
back up smoke detector in the plaintiff’s home.223 Before the
Geier decision had been released, the District Court in Choate
held that the National Manufactured Housing Construction
and Safety Standards Act of 1974 (Housing Construction Act)
expressly and implicitly preempted the plaintiff’s suit.224
Following Geier, the Tenth Circuit reversed the District Court,
holding that the Housing Construction Act could implicitly
preempt a common law suit even though there was no express
preemption.225
The Tenth Circuit next examined whether the plaintiff’s
claims would conflict with the objectives of the Housing
Construction Act and thereby be implicitly preempted.226 The
Circuit looked at the language of the act, stating that Congress
had made clear that its objective was to supervise the
manufactured housing industry.227 Additionally, the Circuit
219
Geier v. Am. Honda Motors Co., 529 U.S. 861, 871 (2000) (stating that one
reason for his allowing implied preemption to persist was Congress’s dual goals of
uniformity and victim compensation).
220
See id. at 869.
221
See, e.g., Choate, 222 F.3d at 793 (discussing the effects the Manufactured
Housing Act’s saving clause had on the act’s express preemption clause, referring
approvingly to Geier’s interpretation of similar clauses); Stone v. Frontier Airlines Inc.,
256 F. Supp. 2d 28, 40 (D. Mass. 2002) (citing both Geier and Sprietsma for the
proposition that a saving clause and an express preemption clause should be read to
allow some cases to not be preempted).
222
222 F.3d at 788. Choate was decided in July of 2000, and Geier was decided
in May of 2000.
223
Id. at 790.
224
Id. The lower court decision is unpublished.
225
Id. at 792-94. (finding that the language for the express and saving clauses
in the Manufactured Housing Construction Act was similar to the language at issue in
Geier).
226
Id. at 794.
227
Choate, 222 F.3d at 795.
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Court held that the language of the regulation in question
established a minimum standard.228 The Circuit Court
distinguished the holding in Geier on the grounds that FMVSS
208 gave the auto manufacturers a choice whereas the
regulation at issue in Choate set a minimum safety standard
for all housing construction.229 The Tenth Circuit’s decision
demonstrates how the Geier preemption analysis is a highly
functional approach, but does not demand the outcome of
preemption in every case.230
Choate stands as an example of how a number of cases
have applied Geier without finding implied preemption.231 In
Colon ex rel. Molina v. BIC USA Inc.,232 the defendants relied
heavily on Cipollone in arguing that the express preemption
clause of the Consumer Product Safety Act (CPSA) preempted
the plaintiff’s common law product liability action.233 The
Southern District of New York, however, declared that because
the CPSA contained a saving clause, Geier and not Cipollone
should control.234 The Southern District also held that the
CPSA’s regulations concerning disposable butane lighters
228
Id. The circuit court held that the federal regulation was a minimum
standard because the regulation simply required that a house have a hardwired smoke
detector installed. Id. The regulation did not provide alternatives (e.g. a hardwired
smoke detector or a battery operated smoke detector) and it did not require that
hardwiring be the only form of power to the smoke detector. Id. Therefore, since the
federal law, and the proposed state requirement of a battery back up for a hardwired
smoke detector were not mutually exclusive, and since the federal regulation did not
prohibit additional regulation of smoke detectors, the Tenth Circuit held that the
federal regulation was a minimum standard. Id. See also Geier v. Am. Honda Motors
Co., 529 U.S. 861, 870 (2000) (stating that the express preemption clause read in light
of the saving clause “preserves those actions that seek to establish greater safety than
the minimum safety achieved by a federal regulation intended to provide a floor”).
229
Choate, 222 F.3d at 796.
230
See Bough & Johnson, supra note 56, at 33 (arguing that Geier does not
mandate preemption in every situation, citing Choate as an example, where the same
analysis as Geier was used, but where no preemption was found, because the state
common law action in question could be seen to improve or support the federal
objectives).
231
So far, however, most courts have held that Geier’s interpretation is most
applicable to express preemption and saving clauses that are similarly worded to those
in the Safety Act. See, e.g., Dow Agrosciences LLC v. Bates, 332 F.3d 323 (5th Cir.
2003) (holding that the Federal Insecticide, Fungicide and Rodenticide Act’s “savings
clause,” which only preserves a state’s regulating authority over federally registered
pesticides, and does not mention common law actions, does not alter the Act’s express
preemption clause’s preemption of a common law failure to warn action).
232
136 F. Supp. 2d 196 (S.D.N.Y. 2000).
233
Id. at 203.
234
Id. at 204 & n.7 (stating that “unlike the CPSA, the Public Health and
Cigarette Safety Act [the act at issue in Cipollone] does not contain a saving clause[;]”
also noting that all the cases cited by the defense were decided before Geier, and so did
not take that holding into account).
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established a minimum standard.235 Consequently, in
accordance with Geier, the court held that the regulations did
not implicitly preempt the plaintiff’s action.236 The Ninth Circuit
also came to the same conclusion when it examined the CPSA
in Leipart v. Guardian Industries, Inc.237
In addition to Geier’s influence on the court’s
interpretation of the CPSA, the District of Massachusetts held
in Stone v. Frontier Airlines, Inc.,238 that in accordance with the
Supreme Court’s holdings in Geier and in Sprietsma, the
Airline Deregulation Act’s saving clause should be read to
preserve some measure of airline related common law actions.239
The court held that Massachusetts’ interest in preserving the
health and safety of its citizens through tort law remedies
overrode the federal interest in uniformity.240
B.
Choice Versus Minimum Standards and the
Presumption Against Preemption
Although Geier may have had an important effect on
how lower courts interpret express preemption clauses,241 lower
courts have not taken the decision as carte blanche to “[run]
amok with our potentially boundless . . . doctrine of implied
conflict pre-emption . . . .”242 In what could be referred to as a
triumph of the presumption against preemption, many courts
have applied Justice Breyer’s approach in Geier without finding
the state action to have been impliedly preempted.243 Those
235
Id. at 207 (“The CPSC regulations establish general, rudimentary and
minimal requirements . . . [that] do not specify design alternatives or production
methods from which manufacturers may choose . . . .”). This interpretation as a
minimum requirement due to the lack of alternatives was cited by the court as a major
distinction between Colon and Geier. Id. at n. 14.
236
Id. at 207-209 (holding that the plaintiff’s claims would not obstruct
Congress’s objectives for the CPSC and would in fact be consistent with those
objectives).
237
234 F.3d 1063 (9th Cir. 2000) (holding that in light of the Court’s decision
in Geier, the CPSA did not expressly or implicitly preempt the plaintiff’s action,
because the saving clause preserved some common law actions, and the CPSA’s
regulations represented minimum standards as opposed to the choices represented in
Geier).
238
256 F. Supp. 2d 28 (D. Mass. 2002).
239
Id. at 40.
240
Id. at 47.
241
See Haas, supra note 219, at 1949 (asserting that Geier “provides clear
guidelines to lower courts” in handling preemption cases).
242
Geier v. Am. Honda Motors Co., 529 U.S. 861, 907 (2000) (Stevens, J.
dissenting).
243
See, e.g., Great Dane v. Wells, 52 S.W.3d 737, 749 (Tex. 2001) (stating that
the plaintiff’s claim that the defendant’s car trailer had been defectively designed with
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courts have often done so based on Justice Breyer’s central
observation that FMVSS 208 offered manufacturers a choice,244
without which the regulation would have represented a
minimum standard above which the states were free to
regulate.245
This principle of choice versus minimum standards has
most clearly been displayed in recent cases involving a variety
of Federal Motor Vehicle Safety Standards (FMVSSs). Since all
the FMVSSs are propagated under the Safety Act, the
arguments in these cases have not been over the preemptive
reach of the express preemption clause,246 but rather whether
the regulation was intended to offer the manufacturer a choice
or only set a minimum standard.247 If the regulation was not
intended to provide a choice, courts have often decided that the
state action is not preempted.248
The diverging outcome of two Eighth Circuit cases,
Harris v. Great Dane249 and Griffith v. General Motors,250 is just
too little reflective tape was not implicitly preempted by FMVSS 108, which regulated
the amount of tape that should appear on car trailers, because that regulation was only
a minimum standard); Rogers v. Cosco, Inc., 737 N.E.2d 1158, 1166 (Ind. Ct. App.
2000) (holding that FMVSS 213’s allowance of the use of a booster seat, but not
requiring its use, represented only a minimum standard, and the plaintiff’s action to
prohibit the use of booster seats for children under forty pounds represented a
permissible attempt to impose a greater safety standard than that advocated by the
DOT).
244
Geier, 529 U.S. at 881 (holding that the plaintiff’s claim would have
established a duty on the part of all manufacturers to install airbags in their 1987 cars,
thereby conflicting with the DOT’s intended mix of restraint devices, in effect taking
away from the manufacturers their choice in what restraint system to use).
245
Id. at 868 (arguing that the express preemption clause, without the saving
clause, would preempt all state actions except those that sought to regulate a matter
for which the federal regulation represented only a “minimum safety standard”).
246
Every court that has examined this question has so far ruled that Geier is
controlling over the Safety Act’s express preemption clause as it applied to all FMVSSs.
See e.g., Harris v. Great Dane Trailers, 234 F.3d 398, 399 (8th Cir. 2000) (“Great Dane
concedes that Geier thereby overruled the district court’s decision that Harris’ claim
against Great Dane is expressly preempted.”).
247
E.g., Rogers, 737 N.E.2d at 1165-66 (discussing only this issue of choice
versus minimum standards in its analysis of the regulations implied preemption
scope).
248
Stone v. Frontier Airlines Inc., 256 F. Supp. 2d 28, 43-44 (D. Mass. 2002)
(stating that the FAA’s regulations represented only a minimum standard, and that in
light of the Act’s saving clause, and in line with the holding in Geier, a minimum
standard was not sufficient to find that the state action would actually conflict with the
federal standard).
249
234 F.3d 398 (8th Cir. 2000). The plaintiff in this case claimed that the
defendant had defectively designed their car trailer with too little reflective tape, which
ultimately caused her husband’s fatal crash. Id. at 399. The defendant responded that
it had complied with the DOT’s regulations regarding reflective devices on car trailers,
and that those regulations implicitly preempted the plaintiff’s claim. Id.
250
303 F.3d 1276 (8th Cir. 2002). The plaintiff claimed that defendant had
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one example of the principle of choice versus minimum
standards. In Harris, the Circuit Court was interpreting the
preemptive effects of MFVSS 108, a DOT safety standard
governing lamps and reflective devices.251 While following
Geier’s interpretation of the Safety Act’s express preemption
and saving clauses,252 the Eighth Circuit distinguished Geier on
the grounds that, unlike FMVSS 208 in Geier, the regulation at
issue in Harris only established a minimum standard, and was
not intended to provide manufacturers with a choice.253 The
Circuit Court held that FMVSS 108 did not prohibit the
addition of more reflective tape than the minimum amount
required.254 The court found that defendant could have been
negligent under state law for designing its trailer with only the
minimum amount of federally required reflective devices.255
In contrast to Harris, the Eighth Circuit in Griffith was
asked to examine different aspect of FMVSS 208—namely, the
requirement that some seats in trucks have either a two-point
or three-point seat belt.256 As in Harris, the Eighth Circuit
Court in Griffith held that the state action might be implicitly
preempted despite the fact that no express preemption was
found.257 The Eighth Circuit framed its decision as a simple
question of whether the regulation was intended as a minimum
standard or whether the regulation established a choice that
the state was forbidden from precluding.258 With this as its
ideological framework the court drew a comparison between
the part of the regulation in Geier and the part in this case.259
The Eighth Circuit found that the DOT had intended the
defectively designed their 1990 Chevrolet Silverado pickup truck because they had
chosen a two-point seat belt for the middle front passenger seat. Id. at 1278. The
defendant countered by saying that FMVSS 208 had specifically allowed them to select
a two-point seat belt for that seat, and therefore the plaintiff’s claim was preempted.
Id.
251
Harris, 234 F.3d at 399.
252
Id.
253
Id. at 403 (rejecting the defendant’s argument that during the period the
DOT was studying the effectiveness of FMVSS 108, that all common law standards
were implicitly preempted; instead holding that the standard required only a minimum
amount of reflective tape, and that any state could, through common law action,
require a greater amount or different configuration of the tape without interfering with
the DOT objectives for the standard).
254
Id. at 401.
255
Id.
256
Griffith v. General Motors, 303 F.3d 1276, 1279 (8th Cir. 2002).
257
Id.
258
Id. at 1280-81 (declaring that the issue in the case is one of intent).
259
Id. at 1281-82 (citing Hurley v. Motor Coach Indus., Inc., 222 F.3d 377, 382
(7th Cir.2000) (supporting the Eighth Circuit’s current holding)).
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987
sections of FMVSS 208 at issue in Griffith to have given auto
manufacturers a choice of what type of seat belt to use.260
Consequently, the Circuit Court held that if the plaintiff’s
action were allowed to proceed, the state would effectively be
eliminating the manufacturer’s ability to choose by declaring
that only one type of seat belt was appropriate.261 As a result,
the court declared that Geier did apply and that the state
action was implicitly preempted.262
Outside of the confines of the Safety Act, this doctrine of
choice versus minimum standard has been used by courts to
limit the implied preemptive effects of several other federal
regulations. As has been shown above, the Tenth Circuit in
Choate v. Champion Home Builders263 found that the federal
regulation requiring hard-wired smoke detectors set only a
minimum standard and did not present homebuilders with a
choice.264 Consequently, the Circuit Court held that the Housing
Construction Act did not preempt the plaintiff’s common law
action.265
Another example comes from Stone v. Frontier Airlines,
266
Inc. In Stone, the District Court of Massachusetts ruled that
the Federal Aviation Administration’s (FAA) regulation
requiring defibrillators on all airplanes did not preempt the
plaintiff’s state common law action.267 The District Court
examined the regulation and stated that the regulation was a
The
court
specifically
minimum
safety
standard.268
distinguished Geier by noting that the FAA’s regulation did not
give the airlines a choice of safety devices.269 Rather, the
District Court ruled that the regulation merely required the
airlines to carry defibrillators by a certain date, and the history
260
Id. at 1282 (holding that the DOT had intended to offer manufacturers a
choice of what restraint system they used, and since the plaintiff’s action would
mandate the choice of one option over another, such action would conflict with the
DOT’s intent for the regulation).
261
Griffith, 303 F.3d at 1282. In so holding, the Eighth Circuit rejected the
plaintiff’s argument that Geier should not apply because in this case the DOT had not
explicitly said that its goal was the gradual phase-in of one particular type of restraint
system. Id. at 1280. Instead, the Circuit Court held that, in accordance with the
holding in Geier, so long as there was a choice offered that was what was controlling,
and no analysis as to why that choice was offered was required. Id. at 1282.
262
Id. at 1282.
263
222 F.3d 788 (10th Cir. 2000).
264
See discussion supra Part V.A.
265
Choate v. Champion House Builders, 222 F.3d 788, 790 (10th Cir. 2000).
266
256 F. Supp. 2d 28 (D. Mass. 2002).
267
Id. at 43.
268
Id.
269
Id. at 44.
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of the regulation showed that a tort law requiring an earlier
adoption date would not conflict with this objective.270
These cases may not all mention the presumption
against preemption by name, but their eventual outcomes
adhere to the basic concepts that underlie the presumption.
The cases show a proper, limited interpretation of the Geier
precedent.271 This interpretation preserves the federal desire to
regulate uniformly while still allowing the states to compensate
their victims.272 By asserting that minimum federal standards
alone do not preempt state actions, cases like Choate and
Harris have properly circumscribed the power of federal
agencies to preempt state common law actions.273 At the same
time, by recognizing that agencies can still preempt state laws
when its objective is to offer a choice, or both a minimum and
maximum, cases like Griffith and others have permitted
agencies to promulgate and administer regulations in a
uniform manner.274
C.
Sprietsma v. Mercury Marine
In 2002, just two years after Geier was decided, the
Supreme Court granted certiorari in the case, Sprietsma v.
Mercury Marine.275 The Court’s unanimous holding in
Sprietsma276 showed how the interpretation of the express
preemption and implied preemption clauses established in
Geier is both appropriate and flexible when interpreted
correctly.
270
Id.
Robert M. N. Palmer, The Auto-Safety Preemption War Since Geier, TRIAL,
Nov. 2001, at 48, 50-51 (citing Harris v. Great Dane, Griffith v. Gen. Motors Corp, and
Rogers v. Cosco as all correctly interpreting Geier as standing for preemption in a
limited set of circumstances).
272
See Bough & Johnson, supra note 56, at 34 (declaring that Geier stands as
an example of a limited application of the implied preemption doctrine). The major
victory in Geier, from a state and victims rights standpoint, was that the majority
rejected Honda’s argument of express preemption. Id. At the same time the holding
also still allowed the federal government to mandate options and phase-in programs.
Id.
273
See Palmer, supra note 274, at 50.
274
See Gary T. Schwartz, Considering the Proper Federal Role in American
Tort Law, 38 ARIZ. L. REV. 917, 930 (1996) (arguing that the vast differences that have
developed between the states in the area of product liability means that it is time the
federal government step in and apply more uniform “mature and experienced decision
making”).
275
534 U.S. 1112 (2002), cert. granted.
276
Sprietsma v. Mercury Marine, 537 U.S. 51 (2002).
271
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989
Mrs. Jeanne Sprietsma died in 1995 when she fell off a
small ski boat and was struck by the outboard motor’s
propeller, which had been manufactured by Mercury Marine
(Mercury).277 Mrs. Sprietsma’s husband filed a product liability
tort claim alleging that the motor had been defectively
designed because it lacked a propeller guard.278 Mercury
responded to the charges by claiming that the Federal Boat
Safety Act of 1971 (FBSA) preempted Sprietsma’s claims.279
Before Geier had been decided, the Illinois trial court and the
Illinois intermediate appellate court had agreed with Mercury’s
interpretation of the FBSA’s express preemption clause and
dismissed Sprietsma’s claim.280 However, after Geier was
decided, the Illinois Supreme Court, interpreting Geier,
overturned the appellate court and declared that Sprietsma’s
claims were implicitly preempted.281 The Supreme Court
subsequently granted certiorari.282
Justice Stevens, the author of the dissent in Geier,
delivered the unanimous opinion in Sprietsma.283 According to
him, three issues had to be resolved. The first issue was
whether the FBSA expressly preempted common law tort
claims.284 The second issue was whether the Coast Guard’s
decision not to regulate propeller guards implicitly preempted
the common law claims.285 The last issue was whether the
potential conflict between state and federal regulation of
propeller guards would be significant enough to overcome the
presumption against preemption.286
Similar to Geier, Justice Stevens began his analysis in
Sprietsma by looking at the language of the FBSA, its history,
and that of the regulation in question. In relevant part, the
277
Id. at 54.
Id. at 55. A propeller guard is one of a set of “propeller injury avoidance
devices.” The purpose of these devices is to reduce the risk that boat propellers pose to
individuals in the water. There are at least four different types of propeller guards,
most of which are designed to deflect large objects away from the spinning propellers.
See United States Coast Guard, Boating Articles: Propeller Injury Risk Reduction,
available at http://www.uscgboating.org/articles/boatingview.aspx?id=67 (describing
the various types of propeller guards and listing each type’s advantages and
disadvantages) (last visited Feb. 10, 2005).
279
46 U.S.C. §§ 4301-4311 (2000) [hereinafter FBSA].
280
Sprietsma, 537 U.S. at 55.
281
Id.
282
Sprietsma v. Mercury Marine, 534 U.S. 1112 (2002).
283
Sprietsma, 537 U.S. at 53.
284
Id. at 56.
285
Id.
286
Id.
278
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FBSA created an advisory council which provided
recommendations to the Coast Guard on all proposed
regulations under the act.287 The council was charged with
considering several factors, such as the “extent to which [a]
proposed regulation will contribute to boating safety” 288 and
whether the proposed regulation will “compel substantial
alteration of recreational vessel[s] . . . .”289 The process that led
to the Coast Guard’s ultimate decision not to issue a
requirement for propeller guards began in 1988. At that time,
due to the perceived high number of individuals injured in
propeller-related accidents, the Coast Guard initiated an
inquiry into whether it should require the installation of
guards.290 After a long study of the propeller guard issue, a
subcommittee of the advisory council recommended that the
Coast Guard “‘take no regulatory action to require propeller
guards.’”291 The Coast Guard followed this recommendation.292
After examining this history, Justice Stevens next
looked at the FBSA’s preemptive power. He began by
examining the act’s construction.293 Like the Safety Act in Geier,
the FBSA had both an express preemption clause and a saving
clause.294 He declared that the phrasing of the preemption
clause indicated that it was not intended to preempt common
law actions.295 Justice Stevens stated further that, in accordance
with Geier, the determination not to preempt common law
actions was “buttresse[d]” by the FBSA’s saving clause.296 As a
287
Id. at 58.
Sprietsma, 537 U.S. at 58.
Id. at 58 n.7.
290
Id. at 60. In the opinion Justice Stevens noted that there were conflicting
figures given for the number of persons injured by propeller accidents each year. The
number ranging from around 100 accidents per year to more than 2,000. Id. at 60 n.8.
291
Id. at 61 (quoting Brief for Appellant at 43).
292
Id. at 61-62. In 2001 the advisory council recommended changes to this
policy as it pertains to “planing vessels 12 feet to 26 feet in length.” However as of the
time of the opinion the Coast Guard had not acted on this recommendation. Id. at 62
(quoting 66 Fed. Reg. 63645, 63647).
293
Sprietsma, 537 U.S. at 56.
294
Id. at 58-59.
295
Id. at 62-63. This declaration that the express preemption clause would not
have preempted common law actions is different than the interpretation Justice Breyer
had of the Safety Act’s express preemption clause. See Geier v. Am. Honda Motors Co.,
529 U.S. 861, 868 (2000) (stating that without the saving clause the express
preemption clause would have preempted all common law actions). This discrepancy
arises from the different terms used in each preemption clause. The FBSA refers to
preempting “law[s] or regulation[s],” Sprietsma, 537 U.S. at 63, whereas the Safety Act
referred to preempting “safety standard[s].” Geier, 529 U.S. at 868.
296
Sprietsma, 537 U.S. at 63.
288
289
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991
result, Justice Stevens wrote that the FBSA does not expressly
preempt state common law actions.297
Justice Stevens then proceeded to examine whether
Sprietsma’s action was implicitly preempted. He stated that
“[i]t is quite wrong to view [the Coast Guard’s] decision [not to
require propeller guards] as the functional equivalent of a
regulation prohibiting all States . . . from adopting such a
regulation.”298 An examination of the history of the act suggests
that when the Coast Guard chose not to regulate in an area
they presumed that the state could still do so.299 In addition, the
Coast Guard cited as a major reason for rejecting the propeller
guard regulation, the fact that not enough data was available
to justify what would be a technically difficult and expensive
regulation to impose.300 This was not an indication that the
Coast Guard believed it was a bad idea to have propeller
guards, but rather, under the current agency regulatory
scheme there was not sufficient evidence to indicate that a
national mandate was required.301
Justice Stevens wrote that the Coast Guard’s decision in
Sprietsma stood in “sharp contrast to the decision . . . given
pre-emptive effect in Geier . . . .”302 In Sprietsma, the Coast
Guard had written an amicus curiae brief, informing the
Justices that the agency did not view the decision as having
any preemptive effect.303 The Coast Guard’s position on the
FBSA’s preemptive effect was thus opposite the DOT’s position
on the preemptive effect of FMVSS 208.304 Justice Stevens
therefore held that, in accordance with Geier, there would be no
conflict between the Coast Guard’s intent in not regulating
propeller guards and Sprietsma’s common law state action,
which might mandate such a device.305
297
Id. at 63-65 (using Geier’s assertion that “an express preemption clause
‘does not bar the ordinary working of conflict preemption principles.’”).
298
Id. at 65.
299
Id. at 65-66. Shortly after the FBSA took effect the Secretary of
Transportation issued a statement that all then-existing state laws were exempt from
being preempted by the FBSA. Id. at 59. Every time that the Coast Guard has issued
new regulations since they have limited the scope of this blanket exemption to those
“[s]tate statutes and regulations” that are not otherwise covered by a federal
regulation. Id. (citing 38 Fed. Reg. 6914-6915).
300
Sprietsma, 537 U.S. at 66.
301
Id. at 66-67. (stating that the decision was made within the “FBSA’s
‘stringent’ criteria for federal regulation”).
302
Id. at 67.
303
Id. at 68.
304
See discussion supra Part III.B.
305
Sprietsma, 537 U.S. at 68.
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The Court’s holding in Sprietsma confirms the
suggestion that the Geier decision is a somewhat limited
decision which represents a balancing of federal and state
needs, and an approach that other courts should use in
evaluating the preemptive effects of laws containing both an
express preemption clause and a saving clause.306 Sprietsma
highlights how implied preemption, combined with the implicit
use of the presumption against preemption, will allow courts to
balance the needs of both the federal government in
uniformity, and the states in protecting their citizens.307 Finally,
the decision also demonstrates how the Court has chosen to
defer to the opinion of various agencies regarding the
preemptive effects of their regulations.308 In the end, Sprietsma
is a strong indication that Geier allows, but does not require, a
finding of implied preemption.309
VI.
CONCLUSION
The Supreme Court’s decision in Geier was an
important but limited holding. While Geier is most likely to be
remembered for its interpretation of the express preemption
and saving clauses, the precedent Geier established has not
greatly changed the balance between federal and state
regulations. The decision did not eradicate the presumption
against preemption, nor did it create a situation where the
federal regulation will more frequently preempt the state. The
306
See id. at 63-64 (referencing Geier in discussing how the FBSA’s saving
clause supports the Court’s reading of the express preemption clause to not include
common law actions).
307
See id. at 65-66 (holding that, in light of the FBSA’s stringent criteria for
federal regulation, the Coast Guard’s decision to not regulate propeller guards should
not be viewed as the equivalent of a decision to not allow propeller guards). This
conclusion was fully consistent with the FBSA’s history of preserving state regulatory
authority in areas where the federal government had not yet regulated. Id. at 65.
308
See id. at 68 (declaring that because the Court’s reasoning in Sprietsma
centrally revolved around the opinion of the Coast Guard, that the holding was
strongly supported by its reasoning in Geier).
309
See discussion supra Part V.
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993
Supreme Court’s decision that FSVMM 208 preempted state
action represents one point on the preemption spectrum, a
spectrum that is beginning to be filled in by the lower courts.
Mason A. Barney†
†
Candidate for Jurist Doctorate, expected June 2005, graduate Bowdoin
College, 1999. The author would like to thank his mother and father, Jim and Bonnie
Barney for their support, Professors Edward Cheng and Aaron Twerski for their
learned opinions, and his wife, Jaclyn Okin Barney, without whose love, support and
guidance this note would never have been published.
2/22/2005 6:19:12 PM
Applying Atkins v. Virginia to Capital
Defendants with Severe Mental
Illness
*
1
*
© 2005 Laurie T. Izutsu. All Rights Reserved.
AMNESTY INTERNATIONAL UNITED STATES OF AMERICA (AIUSA), Another
Texas Injustice: The Case of Kelsey Patterson, Mentally Ill Man Facing Execution, at 5
(Mar. 2004) (letter from Kelsey Patterson to a federal court), available at
http://web.amnesty.org/library/Index/ENGAMR510472004 (last visited Jan. 27, 2005)
[hereinafter AIUSA, Another Texas Injustice].
1
995
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INTRODUCTION
On May 18, 2004, the State of Texas executed Kelsey
Patterson, a man long diagnosed with paranoid schizophrenia,
for the murders of Louis Oates and Dorothy Harris.2 Twelve
years earlier, Patterson had gone to the loading dock of Oates
Oil Company and shot Oates with a .38-caliber Pistol.3
Patterson then killed Oates’ secretary when she walked out of
her office and screamed at finding Oates’ body on the ground.4
Patterson made no effort to conceal the crimes. Instead, he
returned home, informed his roommate of what he had done,5
undressed to his socks, and began pacing and shouting in the
street.6
After Patterson was found competent to stand trial,7 his
lawyers raised the insanity defense.8 Patterson never asserted
a motive for the killings.9 Throughout his legal proceedings, he
claimed to be controlled by outside forces through implants and
to be a victim of conspiracy and poisoning.10 Though Patterson
2
David Carson, Texas Execution Information Center, Kelsey Patterson, at
http://www.txexecutions.org/reports/322.asp (last visited Dec. 19, 2004).
3
th
Patterson v. Cockrell, 69 Fed.Appx. 658, 2003 WL 21355999, at **1 (5 Cir.
May 23, 2003).
4
Carson, supra note 2.
5
Patterson, 2003 WL 21355999, at **1.
6
AIUSA, Another Texas Injustice, supra note 1, at 1.
7
Patterson, 2003 WL 21355999, at **1. At Patterson’s competency hearing
before a jury, defense counsel had relied on the cross-examination of the state’s
witnesses, clinical psychologist Walter Quijano and forensic psychiatrist James
Grigson. AIUSA, Another Texas Injustice, supra note 1, at 6. Neither of these expert
witnesses evaluated Patterson in person. Patterson, 2003 WL 21355999, at **5. Based
on his records alone, Dr. Quijano diagnosed Patterson with schizophrenia and Dr.
Grigson proposed that Patterson had learned to fake psychosis. Id. Both doctors
believed Patterson was competent to stand trial. Id.
8
The contemporary notion of insanity in American criminal law has its roots
in the famed M’Naghten case of 1843. See Cynthia G. Hawkins-Leon, “Literature as
Law”: The History of the Insanity Plea and a Fictional Application Within the Law &
Literature Canon, 72 TEMP. L. REV. 381 (1999). Daniel M’Naghten was found not guilty
by reason of insanity in England after shooting to death Edward Drummond while in
the grip of extreme paranoia and believing Drummond to be the prime minister. Id. at
390-92. This verdict caused Queen Victoria to question the rationale behind the
decision of the House of Lords, prompting a series of questions that resulted in the
M’Naghten Rule:
[T]o establish a defence on the ground of insanity, it must be clearly proved
that, at the time of the committing of the act, the party accused was
labouring under such a defect of reason, from disease of the mind, as not to
know the nature and quality of the act he was doing; or if he did know it, that
he did not know he was doing what was wrong.
Id. at 392.
9
Patterson, 2003 WL 21355999, at **1. See also AIUSA, Another Texas
Injustice, at 1.
10
AIUSA, Another Texas Injustice, supra note 1, at 1, 6.
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continually interrupted trial proceedings to insist that he was a
victim of conspiracy,11 the judge did not return to the issue of
competency.12 Further, the prosecution elicited testimony that
it was feasible to feign psychotic symptoms.13 Even more
significantly, the prosecution intermittently punctuated the
trial with statements that encouraged the jury to treat
Patterson’s schizophrenia as an indicator of future
dangerousness.14 The jury deliberated about four hours before
recommending the death penalty.15
The low standard for competence, the effects of severe
mental illness on the defendant’s courtroom behavior, and the
tendency for the prosecutor to present a mental disorder as an
aggravating factor instead of a mitigating factor exemplify the
serious disadvantages a severely mentally ill defendant faces in
capital proceedings. Such circumstances have led state
lawmakers to consider adding a sentence of life without the
possibility of parole in Texas.16 Public outcry over Patterson’s
execution,17 and the execution of others with a similar
psychiatric background,18 reflect the burgeoning controversy
over whether individuals with severe mental illness should be
excluded from capital punishment.
In June of 2002, the Supreme Court in Atkins v.
Virginia19 found it unconstitutional to execute people with
mental retardation.20 The Court convincingly demonstrated
that the execution of criminals with mental retardation
11
Id. at 10-11.
Id. at 11.
13
Patterson, 2003 WL 21355999, at **5.
14
See text accompanying footnote 209, infra.
15
AIUSA, Another Texas Injustice, supra note 1, at 13.
16
Scott Gold, The Nation; Texas Weighs Its Life or Death Decisions; The
Execution of A Schizophrenic Man Helps Build Support for A New Sentencing Option in
Capital Cases: Life without Parole. L.A. TIMES, Aug. 15, 2004, at A17. See also Mary
th
Alice Robbins, A Preview of the Action the 79 Texas Legislature Will See, 20 TEXAS
LAWYER 14, Jan. 10, 2005.
17
See Gold, supra note 16. See also Editorial, Our View: Two More Death
Penalty Inequities, SPRINGFIELD NEWS-LEADER, May 21, 2004, at 8A; Cato Meador,
Editorial, Letter Regarding Kelsey Patterson, DALLAS MORNING NEWS, May 30, 2004, at
2H. Dr. Maria Felix-Ortiz, In Texas, Mental-Health Spending Is Down, Executions
Continue, SAN ANTONIO EXPRESS-NEWS, June 9, 2004, at 9G.
18
See generally Editorial, Executing the Mentally Ill; The Execution of a
Person Who Has Suffers [sic] from Mental Illness is Cruel and Unusual and Should Be
Outlawed, SAN ANTONIO EXPRESS, Apr. 6, 2003, at 02H; Editorial, Genuine Justice
Calls for Sparing Severely Mentally Ill, HOUSTON CHRONICLE, Nov. 6, 2002, at 42.
19
536 U.S. 304 (2002).
20
Id. Because mental retardation and other mental disorders classify
disorders and not the people themselves, this author attempts to avoid expressions
such as “mentally retarded” or “schizophrenic.”
12
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amounts to cruel and unusual punishment prohibited by the
Eighth Amendment, given their diminished culpability due to
factors ranging from subaverage intellect to impaired social
functioning.21 The Atkins rationale compels the conclusion that
the death penalty should likewise be found unconstitutional as
imposed on defendants with a severe mental disorder who
suffer from similar disabling effects.
This Note proposes a categorical exemption from capital
punishment for individuals with severe mental disorders. To
provide necessary context for the analysis, this Note first
discusses the Eighth Amendment’s mandate that capital
punishment be commensurate with the character of the
defendant and his or her criminal offense, and the Supreme
Court’s corresponding emphasis on proportionality review and
moral culpability. Part Two looks closely at the Supreme
Court’s discussion of reduced moral culpability in capital
defendants with mental retardation in Atkins. Part Three
reviews state death penalty statute provisions that have a
bearing on mental illness and the viewpoints of various justices
and communities towards the execution of the mentally ill to
demonstrate that people with severe mental illness should also
be considered less morally culpable. Part Four examines the
nature of severe mental disorders and compares how mental
retardation and severe mental illness impact the individual. In
Part Five, the cases of Kelsey Patterson, James Colburn, and
Charles Walker illustrate how the experiences of defendants
with severe mental disorders in capital proceedings implicate
the exact concerns expressed by the Supreme Court in Atkins.
Finally, Part Six cautions against limiting the scope of severe
mental illness as a mitigator and addresses the implications of
applying Atkins to offenders with severe mental disorders. Part
Seven concludes this Note with comments on the evolving
standards of decency in the United States.
I.
THE EIGHTH AMENDMENT, PERSONAL CULPABILITY, AND
THE PENOLOGICAL JUSTIFICATIONS OF THE DEATH
PENALTY
The Eighth Amendment of the United States
Constitution prohibits the use of “cruel and unusual
punishments.”22 In capital cases, the Supreme Court has
21
22
Id.
U.S. CONST. amend. VIII.
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generally construed this prohibition to mean that a sentence of
death must not be excessive and must serve some penological
justification, such as retribution or deterrence, so as not to
result in the “gratuitous infliction of suffering.”23 The Court has
further held that certain crimes that do not involve the taking
of human life are per se ineligible for the death penalty because
such a sentence would be excessive.24 Certain individuals might
also be ineligible regardless of the crime committed.25 This bar
might occur when, taking into account the individual’s
character and background, the death penalty would offend
“currently prevailing standards of decency.”26
The idea that “punishment should be directly related to
the personal culpability of the criminal defendant”27 has been
central to the Court’s analysis of whether the death sentence is
excessive.28 Indeed, the reality that not every defendant in a
capital case is sentenced to death reflects the attitude that
“only the most deserving” should be executed.29 Proportionality
review implies that some capital defendants may not be
culpable enough to warrant the death penalty.30 The fact that
the individual’s level of culpability lies on a continuum is
reflected by state statutes that provide for the assessment of
mitigating and aggravating circumstances in capital trials. It is
only at the extreme end of this continuum that the public will
deem the criminal deserving of execution.31 In this way, the
death penalty becomes “an expression of society’s moral
outrage at particularly offensive conduct.”32
Deterrence also plays a role in considerations of capital
sentencing. The Court has found that “the death penalty has
little deterrent force against defendants who have reduced
23
Gregg v. Georgia, 428 U.S. 153, 182-83 (1976).
See, e.g., Coker v. Georgia, 433 U.S. 584 (1977) (holding that the death
penalty was a disproportionate punishment for rape).
25
Alyssa C. Lareau & Grant H. Willis, Thirty-First Annual Review of
Criminal Procedure IV. Sentencing, Capital Punishment, 90 GEO. L.J. 1838, 1842
(2002).
26
See Thompson v. Oklahoma, 487 U.S. 815 (1988).
27
Thompson, 487 U.S. at 834 (quoting California v. Brown, 479 U.S. 538, 545
(1987)).
28
Van W. Ellis, Note, Guilty but Mentally Ill and the Death Penalty:
Punishment Full of Sound and Fury, Signifying Nothing, 43 DUKE L.J. 87, 90 (1994).
29
Atkins v. Virginia, 536 U.S. 304, 319 (2002).
30
Ellis, supra note 28, at 90.
31
Joseph A. Nese, The Fate of Mentally Retarded Criminals: An Examination
of the Propriety of Their Execution Under the Eighth Amendment, 40 DUQ. L. REV. 373,
401 (2002).
32
Gregg v. Georgia, 428 U.S. 153, 183 (1976).
24
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capacity for considered choice.”33 When the death penalty does
not serve either the goal of retribution or that of deterrence, it
purposelessly imposes pain and suffering.34
Accordingly, the Court has held that the provisions of
the Eighth Amendment require an analysis of the defendant’s
personal culpability in capital sentencing and an assessment of
whether the aims of retribution or deterrence are met. These
requirements come to bear significantly on the Supreme Court
holding in Atkins.
II.
THE SUPREME COURT FINDINGS
RETARDATION IN ATKINS V. VIRGINIA
ON
MENTAL
In Atkins, the Supreme Court barred the execution of
individuals with mental retardation finding that although the
deficiencies of mental retardation did not exempt a defendant
from criminal responsibility, they did diminish his or her moral
culpability.35 The Court premised its holding on the Eighth
Amendment’s bar against excessive punishment and the
accompanying need for proportionality review.36 As the Court
had pointed out in Penry v. Lynaugh,37 such proportionality
review is best informed by the actions of state legislatures.38
Hence, the Court reviewed state death penalty statutes,
examined the evidence of a national consensus against capital
punishment for persons with mental retardation, and noted the
impact of mental retardation on these defendants.
The Atkins Court evaluated whether society regards
people with mental retardation less culpable than the average
criminal by observing the changes in state death penalty laws
that had been enacted since 1986.39 That year marked the
execution of Jerome Bowden, a Georgia death row inmate said
to have an IQ of 65.40 Bowden’s execution led to the first state
statute bar against execution of offenders with mental
retardation.41 In the next few years, Georgia and Maryland
enacted death penalty legislation prohibiting capital
33
34
35
36
37
38
39
40
41
Skipper v. South Carolina, 476 U.S. 1, 13 (1986).
Coker v. Georgia, 433 U.S. 584, 592 (1977).
Atkins v. Virginia, 536 U.S. 304, 320 (2002).
Id. at 311.
492 U.S. 302 (1989).
Id. at 330-31.
Id. at 313-14.
Id. at 313 n.8.
Id. at 313-14.
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punishment for people with mental retardation.42 The decision
in Penry followed in 1989, in which the Court found that the
defendant’s mental retardation alone did not exempt him from
capital punishment under the Eighth Amendment.43 The Court
later reversed Penry’s death sentence, however, on the ground
that the statute deprived the sentencer of an adequate means
of giving mitigating effect to Penry’s mental retardation.44 In
response to Bowden’s execution and Penry, many state
legislatures enacted death penalty statutes similar to the laws
of Georgia and Maryland. The Atkins Court noted that the
State trend45 of barring execution of persons with mental
retardation indicated that society has come to regard such
people as less culpable.46
In further support of its finding of a national consensus,
the Court noted that professional organizations such as the
American Psychological Association and the American
Association on Mental Retardation (AAMR), recognized for
their expertise in mental health, had officially taken a stance
against imposing the death penalty on criminal offenders with
mental retardation.47 Additionally, the Court reported that
various religious groups had together filed an amicus curiae
brief on behalf of a petitioner with mental retardation, because
despite their differences, these amici “share a conviction that
the execution of persons with mental retardation cannot be
morally justified.”48 The Court then acknowledged the
widespread disapproval within the world community of
executing offenders with mental retardation.49 The Court found
this consensus to reflect a “widespread judgment about the
relative culpability of mentally retarded offenders, and the
relationship between mental retardation and the penological
purposes served by the death penalty.”50
Moreover, the Court noted that “some characteristics of
mental retardation undermine the strength of the procedural
42
Penry, 492 U.S. at 314.
Id. at 340.
44
See Penry v. Johnson, 532 U.S. 782, 804 (2001).
45
As the Court specifically stated: “It is not so much the number of these
States that is significant, but the consistency of the direction of change.” Atkins v.
Virginia, 536 U.S. 304, 315 (2002).
46
Id. at 314-16.
47
Id. at 316 n.21 (citation omitted).
48
Id.
49
Id.
50
Atkins, 536 U.S. at 317.
43
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protections that our capital jurisprudence steadfastly guards.”51
According to the AAMR, a person considered to have mental
retardation exhibits an intelligence quotient (IQ) of somewhere
around 70 to 75 at the highest, as well as deficits manifested by
problems with self-care, social interaction, employment,
education, and health.52 A person is diagnosed with mental
retardation if subaverage intelligence and limitations in
adaptive functioning are present before the individual turns
eighteen years old.53 Discussing the impact of mental
retardation on the offender’s thought processes, the Court
acknowledged that people with mental retardation are
paradoxically often found competent to stand trial, despite
reduced capacities to analyze information, think logically,
articulate, learn from mistakes, and comprehend human
behavior.54 The Court noted that even given these deficiencies,
“[t]here is no evidence that they are more likely to engage in
criminal conduct than others, but there is abundant evidence
that they often act on impulse rather than pursuant to a
premeditated plan.”55
The Court found these cognitive and behavioral defects
to reduce the moral culpability of defendants with mental
retardation.56 Consequently, where the death penalty is
typically not appropriate retribution for crimes committed by a
person of average intelligence, it offends contemporary
standards of decency in the case of defendants with mental
retardation.57 Furthermore, deterrence is not measurably
served by executing individuals who are unable to see that
certain acts might result in the death penalty, and so cannot
adjust their conduct accordingly.58
51
Id. at 318.
Id. at 308 n.3. See also AMERICAN ASSOCIATION ON MENTAL RETARDATION
(AAMR), Definition of Mental Retardation, available at http://www.aamr.org/Policies/
faq_mental_retardation.shtml (last visited Feb. 28, 2005).
53
AAMR, supra note 52. The American Psychiatric Association’s Diagnostic
and Statistical Manual of Mental Disorders Fourth Edition (DSM-IV) criteria parallel
that of AAMR. See AM. PSYCHIATRIC ASS’N, DSM-IV 39-46 (1994). Adaptive functioning
or behavior refers to “the collection of conceptual, social, and practical skills that people
have learned so they can function in their everyday lives. Significant limitations in
adaptive behavior impact a person’s daily life and affect the ability to respond to a
particular situation or to the environment.” AAMR, Fact Sheet: Frequently Asked
Questions about Mental Retardation, available at http://www.aamr.org/Policies/
faq_mental_retardation.shtml (last visited Dec. 23, 2004).
54
See Atkins, 536 U.S. at 318.
55
Id.
56
Id. at 320.
57
Id. at 319.
58
Id. at 320.
52
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In addition to recognizing that retribution and
deterrence are not furthered by imposing the death penalty on
people with mental retardation, the Court determined that
such individuals suffer significant disadvantages during legal
proceedings.59 Because of the reduced capacity that mental
retardation causes, defendants are more vulnerable to
situations generating false confessions and they are sometimes
unable to assist counsel or provide adequate testimony.60
Equally as crucial, jurors might misperceive the attitudes of
the defendants towards their crimes based on their outward
appearance, which “may create an unwarranted impression of
lack of remorse for their crimes.”61 Perhaps even more
important, evidence of mental retardation as a mitigating
factor can act as a “two-edged sword” that jurors also regard as
an indicator of future dangerousness.62 Given all these
encumbrances, the Court concluded that defendants with
mental retardation “face a special risk of wrongful execution.”63
The weight the Court gives to functional and cognitive
impairment in assessing both culpability and vulnerability in
legal proceedings casts serious doubt on the constitutionality of
imposing the death penalty on individuals with severe mental
illness. Thus, where defendants experience impaired cognitive
and adaptive functioning that reduce culpability and lead to
vulnerabilities during legal proceedings, and where evidence
exists that society denounces capital punishment for such
persons, the Supreme Court should exempt severely mentally
ill offenders from the death penalty.
59
60
61
62
63
Atkins, 536 U.S. at 320-21.
Id.
Id. at 321.
Id. at 320-21.
Id. at 321.
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III.
APPLYING THE RATIONALE OF ATKINS TO OFFENDERS
WITH SEVERE MENTAL DISORDERS
A.
State Death Penalty Statutes64 and Severe Mental Illness
as a Mitigating Factor
The overwhelming majority of state statutes contain
mitigating factors that implicate mental illness.65 Many capital
statutes, like the Model Penal Code, permit the defendant to
proffer evidence that the offense was committed “under the
influence of extreme mental or emotional disturbance” as a
mitigating circumstance relevant to determination of a
sentence less than death.66 Some states do not even require that
such mental or emotional disturbance be “extreme,” but only
that the condition had an “influence” on the defendant’s
conduct at the time of the offense.67
64
Currently, over one-fifth of state jurisdictions do not have death penalty
statutes. Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North
Dakota, Rhode Island, Vermont, West Virginia, Wisconsin. Deborah Fins, Death Row
U.S.A. Summer 2004, A Quarterly Report by the Criminal Justice Project of the NAACP
Legal Defense and Educational Fund, Inc., at 1, 3, available at http://www.naac
pldf.org/content/pdf/pubs/drusa/DRUSA_Summer_2004.pdf (last visited Feb. 27, 2005).
This absence automatically excludes individuals with severe mental illness from
capital punishment in twelve states, as well as the District of Columbia. Id.
65
See Kyron Huigens, Homicide in Aretaic Terms, 6 BUFF. CRIM. L. REV. 97,
n.108 (2002). See also Ellen F. Berkman, Mental Illness as an Aggravating
Circumstance in Capital Sentencing, 89 COLUM. L. REV. 291, 297-98 (1989). See also
AMERICAN BAR ASSOCIATION SECTION OF INDIVIDUAL RIGHTS AND RESPONSIBILITIES,
Death without Justice: A Guide for Examining the Administration of the Death Penalty
in the United States, 63 OHIO ST. L.J. 487, 529 (2002) (noting that those death penalty
statutes following the Model Penal Code implicate mental illness).
66
See Ellen Fels Berkman, Mental Illness as an Aggravating Circumstance in
Capital Sentencing, 89 COLUM. L. REV. 291, 296-98 (1989) (emphasis added). See also
MPC 210.6(4)(b). See, e.g., ARK. CODE ANN. § 5-4-605(1) (2004); CAL. PENAL CODE §
190.3(d) (2005); FLA. STAT. ANN. § 921.141(6)(b) (2004); 720 ILL. COMP. STAT. ANN. 5/91(c)(2) (2004); IND. CODE § 35-50-2-9(c)(2) (2005); KAN. STAT. ANN. § 21-4626(2) (2003);
KY. REV. STAT. ANN. § 532.025 (2004)(2)(b)(2); LA. CODE CRIM. PROC. ANN. art. 905.5(b)
(2004); MISS. CODE ANN. § 99-19-101(6)(b) (2004); MO. ANN. STAT. § 565.032(3)(2)
(2004); MONT. CODE ANN. § 46-18-304(b) (2004); NEB. REV. STAT. ANN. § 29-2523(2)(c)
(2004); NEV. REV. STAT. ANN. 200.035(2) (2004); N.H. REV. STAT. ANN. § 630:5(VI)(f)
(2004) (refers to an offense committed under “severe mental or emotional disturbance”);
N.J. STAT. ANN. § 2C:11-3(5)(a) (2004); 42 PA. CONS. STAT. § 9711(e)(2) (2004); TENN.
CODE ANN. § 39-13-204(j)(2) (2004); VA. CODE ANN. § 19.2-264.4(B)(i)-(ii) (2004); WYO.
STAT. ANN. § 6-2-102(j)(ii)-(iii) (2004).
67
See NM Stat. Ann. § 31-20A-6; N.C. GEN. STAT. § 15A-2000(f)(2) (2005); NY
CPL § 400.27 (9)(e). See also S.C. CODE ANN. § 16-3-20(C)(b)(2) (1976); Utah Criminal
Code § 76-3-207. In June of 2004, the State of New York Court of Appeals struck down
the state’s death penalty statute as unconstitutional due to a problematic jury
instruction requirement in the penalty phase. 783 N.Y.S.2d 485 (N.Y. 2004). At the
time of publication, New York State Assembly members remain undecided as to
whether or not to correct this flaw and reinstate the death penalty. Patrick D. Healy,
Death Penalty Seems Unlikely to Be Revived, N.Y. TIMES, Feb. 11, 2005, at B1.
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In addition to mental or emotional disturbance, twentyeight states—well over half of those jurisdictions that have
death penalty statutes—give mental illness mitigating impact
by allowing the jury to consider the defendant’s capacity.68
These states commonly refer to “the capacity of the defendant
to appreciate the criminality [or wrongfulness] of his conduct or
to conform his conduct to the requirements of law” as being
“impaired” or “significantly” or “substantially impaired.”69 Many
of these provisions expressly stipulate that this impairment be
due to “mental disease or defect” or “mental illness.”70
Connecticut has gone so far as to bar the death penalty when
such incapacity is found.71
Death penalty statutes may also implicate severe
mental illness as a mitigating factor with other language.
Oregon, for instance, instructs jurors to consider “the extent of
mental or emotional pressure under which the defendant was
acting at the time the offense was committed.”72 Illinois, on the
other hand, looks more broadly at whether the defendant
68
See ARIZ. REV. STAT. § 13-703 (2004); ARK. CODE ANN. § 5-4-605 (Michie
2004); CAL. PENAL CODE § 190.3 (West 2005); COLO. REV. STAT. ANN. § 18-1.3-1201(4)(b)
(2003); CONN. GEN. STAT. ANN. § 53a-46a (West 2005); FLA. STAT. ANN. § 921.141 (West
2004); IND. CODE § 35-50-2-9(c)(2) (2005); KAN. STAT. ANN. § 21-4626 (2004); KY. REV.
STAT. ANN. § 532.025 (Banks-Baldwin 2004); LA.CODE CRIM. PROC ANN. art. 905.5
(West 2005); MD. CODE ANN., CRIMINAL CAUSES § 4-343 (2005); MISS. CODE ANN. § 9919-101 (2005); MO. ANN. STAT. § 565.032 (West 2005); MONT. CODE ANN. § 46-18-304
(2005); NEB. REV. ST. § 29-2523 (2005); N.H. REV. STAT. ANN. § 630:5 (2005); N.J. STAT.
ANN. § 2C:11-3 (West 2004); N.M. STAT. ANN. § 31-20A-6 (Michie 2004); N.Y. CRIMINAL
PROCEDURE LAW § 400.27 (McKinney 2004); N.C. GEN. STAT. § 15A-2000(f)(2) (2005);
OHIO REV. CODE ANN. § 2929.04 (West 2005); 42 PA. CONS. STAT. § 9711 (2005); S.C.
CODE ANN. § 16-3-20 (Law. Co-op. 2005); TEX. CODE ANN. § 39-13-204 (2005); UTAH
CODE ANN. § 76-3-207 (2004); VA. CODE ANN. § 19.2-264.4 (Michie 2004); WASH. REV.
CODE § 10.95.070 (2005); WYO. STAT. ANN. § 6-2-102 (Michie 2005).
69
See statutes cited supra note 66.
70
See ARK. CODE ANN. § 5-4-605 (3) (2004); CAL. PENAL CODE § 190.3(h)
(1978); IND. CODE ANN. § 35-50-2-9(c)(6) (2004); LA. CODE CRIM. PROC. ANN. art.
905.5(e) (2004); N.J. STAT. ANN. 2C:11-3(i)(5)(d) (2002); OHIO REV. CODE ANN. §
2929.04(B)(3) (2002); TENN. CODE ANN. § 39-13-204(j)(8) (2002); WASH. REV. CODE ANN.
10.95.070. Kentucky and Nebraska specifically refer to the term “mental illness.” KY.
REV. STAT. ANN. § 532.025 (2)(b)7 (2002); NEB. REV. ST. § 29-2523(2)g) (2004).
Maryland refers to “mental incapacity” and “mental disorder.” MD. R. CR. PROC. § 4343 (4).
71
CONN. GEN. STAT. ANN. § 53a-46a(h) (2001). The statute states:
The court shall not impose the sentence of death on the defendant if the jury
or, if there is no jury, the court finds by a special verdict . . . that at the time
of the offense . . . the defendant’s mental capacity was significantly impaired
or the defendant’s ability to conform the defendant’s conduct to the
requirements of law was significantly impaired but not so impaired in either
case as to constitute a defense to prosecution.
Id. This mitigating circumstance is listed separately from that of mental retardation.
Id.
72
OR. REV. STAT. § 163.150(1)(c)(A) (2005) (emphasis added).
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“suffers from a reduced mental capacity.”73 Finally, South
Carolina asks jurors to consider the “mentality of the defendant
at the time of the crime.”74
The consistent inclusion of a mental illness component
in death penalty statutes indicates that some degree of mental
illness falling short of insanity must be weighed during
sentencing. While the provisions do not explain exactly what is
meant by “mental disturbance” or impairment of capacity, such
criteria would surely embrace a person suffering from a severe
mental disorder.75 This pattern among death penalty statutes of
considering
the
defendant’s
mental
condition
and
corresponding inability to act within the law suggests that a
majority of legislatures recognize the potential of mental illness
to mitigate a person’s culpability.76
B.
Views of State Justices, Experts and Religious and
World Communities
The codification of mental illness in numerous state
death penalty statutes reflects agreement amongst
professional, religious and world communities that defendants
with severe mental disorders should be excluded from capital
punishment. While this codification may not be as clearly laid
out as statutes prohibiting execution of criminal offenders with
mental retardation, it does appear to indicate “a much broader
social and professional consensus.”77 Many justices presiding
over capital cases have cast doubt over the appropriateness of
73
ILL. COMP. STAT. ANN. 5/9-1(c)(7) (2004) (emphasis added).
S.C. CODE ANN. § 16-3-20(C)(b)(7) (2004) (emphasis added). This factor is
noted separately from the circumstance of mental retardation. Id. § 16-3-20(C)(b)(10).
75
See infra Part IV.
76
Judges have certainly understood these statutes to give effect in this
manner. For example, in vacating an order dismissing a capital defendant’s petition for
post-conviction relief, a Pennsylvania Supreme Court judge deemed that evidence of a
defendant’s chronic schizophrenia “would have been sufficient to implicate the mentalhealth mitigators, namely that Appellant was under the influence of an extreme
mental or emotional disturbance, and that his capacity to appreciate the criminality of
his conduct or conform it to the requirements of the law was substantially impaired.”
Commonwealth v. Hughes, 2004 WL 3050831, at *37 (Pa. 2004). In another instance, a
Seventh Circuit judge referred to the Indiana death penalty statute as having two
mitigating factors “to which mental illness can be relevant” and cited the following
provisions: “‘was under the influence of extreme mental or emotional disturbance when
the murders were committed’” and “‘the defendant’s capacity to appreciate the
criminality of the defendant’s conduct or to conform that conduct to the requirements of
law was substantially impaired as a result of mental disease or defect or of
intoxication.’” Baird v. David, 388 F.3d 1110, 1115 (7th Cir. 2004) (citing IND. CODE §
35-502-9(C)(2) (2004)).
77
Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002).
74
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excluding people with severe mental disorders from the death
penalty. In State v. Scott,78 Justice Pfeifer dissented from the
majority’s opinion which had affirmed a death sentence for a
man with schizophrenia.79 Arguing that evolving standards of
decency prohibited the man’s execution, Pfeifer wrote:
I cannot get past one simple irrefutable fact: he has chronic,
undifferentiated schizophrenia, a severe mental illness. Mental
illness is a medical disease. Every year we learn more about it and
the way it manifests itself in the mind of the sufferer. At this time,
we do not and cannot know what is going on in the mind of a person
with mental illness. As a society, we have always treated those with
mental illness differently from those without. In the interest of
human dignity, we must continue to do so.80
Another justice, dissenting in Corcoran v. State,81 cited
Atkins to propose that the death penalty should not be imposed
on an individual with severe mental illness. Acknowledging
that the defendant in this case who received a death sentence
did not have mental retardation, Justice Rucker asserted that
“the underlying rationale for prohibiting executions of the
mentally retarded is just as compelling for prohibiting
executions of the seriously mentally ill, namely evolving
standards of decency.”82 Still another justice, in State v.
Nelson,83 relied heavily on Atkins in his concurrence.84
Contending that the defendant’s “irrationalities” lessened her
culpability, Justice Zazzali opined that “if the culpability of the
average murderer is insufficient to invoke the death penalty as
our most extreme sanction, then the lesser culpability of
Nelson, given her history of mental illness and its connection to
her crimes, ‘surely does not merit that form of retribution.’”85
Additionally, a number of justices have questioned the
imposition of the death penalty on individuals with mental
illness in other contexts. For example, in December of 2004,
two former North Carolina Supreme Court justices urged
Governor Mike Easley to commute the sentence of Charles
Walker, a death row inmate who suffers from a severe mental
78
79
80
81
82
83
84
85
dissenting).
748 N.E.2d 11 (Ohio 2001).
Id.
Id. at 20.
774 N.E.2d 495 (Ind. 2002).
Id. at 502.
803 A.2d 1, 47 (N.J. 2002).
Id.
Id. (quoting Godfrey v. Georgia, 446 U.S. 420, 433 (1980)) (Zazzali, J.,
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disorder.86 “‘To spare Walker’s life and impose a sentence of life
imprisonment without parole is particularly appropriate,’”
wrote Exum in a letter to the Governor, “‘because of the role
Walker’s long-standing mental illness—paranoid schizophrenia
—played in the proceeding leading to his sentence of death.’”87
In 2002, a group of twenty-one retired state and federal judges
in Illinois wrote an open letter to then Governor George Ryan,
urging him to commute the death sentences to life without
parole in cases where the fairness and accuracy of the
conviction or sentence was in doubt.88 They referred to mental
illness as one of the legitimate bases for granting clemency.89 In
that same year, United States District Judge William Wayne
Justice openly criticized the Texas criminal justice system for
approaching the mentally ill with “a spirit of vengeance.”90 He
referred to Andrea Yates, a woman diagnosed with
schizophrenia who had drowned her children, to illustrate one
who could not be “justly blame[d].”91 The federal judge alluded
to the notion of moral culpability, stating, “‘If we reject the
moral necessity to distinguish between those who willingly do
evil, and those who do dreadful acts on account of unbalanced
minds, we will do injury to these people.’”92 Other judges,
despite their affirmation of death sentences, have made critical
remarks about the outcome of death penalty cases involving
the severely mentally ill, perhaps hinting at an inconsistency
between what is considered legally appropriate and what
punishment they feel a capital defendant morally deserves.93
Organizations with germane expertise in the realm of
mental health and religious and world communities agree with
this sentiment to evaluate criminal offenders with severe
86
Andrea Weigl, Former Justices Urge Mercy, NEWS & OBSERVER, Nov. 24,
2004, at B5. See also infra Part V.C.
87
Weigl, supra note 86.
88
John F. Cirricone et al., An Open Letter from Retired Judges to Governor
George Ryan (Dec. 1, 2002), available at http://www.law.northwestern.edu/depts/clinic/
wrongful/documents/JudgeLet1.pdf (last visited Feb. 2, 2005).
89
Id.
90
James Kimberly, Justice Defends Mentally Ill/U.S. Judge Chides Texas
Law’s “Spirit of Vengeance”, HOUSTON CHRON., Sept. 26, 2002, at 29.
91
Id.
92
Id.
93
Fifth Circuit Justice Edith H. Jones apparently expressed frustration
about Kelsey Patterson’s case and asked, “What are we doing here?” She then
reportedly said to Assistant Attorney General Gina Bunn, “This is a very sick man.”
Mike Tolson, Mentally Ill Killer’s Life on the Line, HOUST. CHRON., Aug. 11, 2002, at
A37. Justice Fortunato Benavides spoke out more strongly, evidently blaming Texas’s
mental health system for continually discharging Patterson back into the community
where he eventually committed the two murders. Id.
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mental disorders in capital sentencing proceedings more like
offenders with mental retardation. For instance, organizations
such as the National Alliance for the Mentally Ill, the
American Psychological Association (APA) and the National
Mental Health Association (NMHA) have taken an official
stance against capital punishment as imposed on persons with
severe mental illness.94 In the same vein, four of the twelve
religious group amici supporting the petitioner in Atkins
believe that the death penalty is never a legitimate
punishment when it is aimed at persons who are more
“vulnerable” than the average person or who suffer from a
mental illness or disability.95 Two of the other groups similarly
emphasized that it is the decreased culpability of people with
mental retardation that renders the death penalty particularly
inappropriate for this population.96 These religious amici’s
concerns about vulnerability and decreased culpability readily
apply to individuals with severe mental disorders.97
In addition to American professional and religious
communities, world communities have expressed strong
opposition to the execution of people with severe mental
94
See National Mental Health Association, News Release, NMHA Announces
Position on Death Penalty (Apr. 3, 2001), available at http://www.nmha.org/
newsroom/system/news.vw.cfm?do=vw&rid=276 (last visited Dec. 23, 2004); National
Alliance for the Mentally Ill, Press Release, No Death Penalty for Persons with Severe
Mental Illnesses (Jan. 12, 1998), available at http://www.nami.org/Content/
ContentGroups/Press_Room1/1998/January_1998/No_Death_Penalty_For_Persons_
With_Severe_Mental_Illnesses_hr__i_Statement_By_Laurie_M__Flynn,_Execut.htm
(last visited Jan. 25, 2005); American Psychiatric Association Online, Resolution on the
Death Penalty in the United States (Aug. 2001), available at http://www.apa.org/pi/
deathpenalty.html?CFID=2646048&CFTOKEN=67528764 (last visited Jan. 25, 2005).
95
Brief of Amici Curiae, McCarver v. North Carolina, 533 U.S. 975 (2000),
available at http://www.usccb.org/ogc/amicuscuriae3.shtml (last visited Jan. 25, 2005).
The General Board of Church and Society and the General Board of Global Ministries
of the United Methodist Church specifically call on society to “protect the civil rights of
persons with disabilities” and refer to the “the well-established principle that
diminished mental capacity also reduces moral culpability.” The General Synod of The
United Church of Christ reports “an immediate focus on ending the execution of
juvenile offenders and persons with mental retardation or mental illness.” Clifton
Kirkpatrick, as Stated Clerk of the General Assembly of the Presbyterian Church,
U.S.A., indicates that “those who are ‘most vulnerable, most likely to be forgotten,
exploited or oppressed, most unable to defend’” are entitled to “special protection.” The
Mennonite Central Committee, U.S. Washington Office emphasizes “God’s special
concern for those who are weak, neglected and vulnerable.” Id. (emphasis added).
96
Id. (emphasis added). The Evangelical Lutheran Church in America
“believes the execution of persons with mental retardation is particularly inappropriate
because of their diminished culpability,” while the Foundation for the Preservation of
the Mahayana Tradition, Inc. believes that because people with mental retardation are
“less culpable than would otherwise be the case . . . it behooves us to treat these
individuals with care and compassion.” Id.
97
See discussion infra Part IV. C.
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disorders. The European Union (EU), whose brief the Court
cited in Atkins when noting that the world community
“overwhelmingly disapprove[s]” of capital punishment for
individuals with mental retardation,98 has specifically spoken
out against inflicting the death penalty on any person with a
serious mental illness.99 In a letter written to urge the
commutation of Kelsey Patterson’s death sentence,
representatives of the EU Presidency stated, “The EU strongly
believes that the execution of persons suffering from a mental
disorder is contrary to widely accepted human rights norms
and in contradiction to the minimum standards of human
rights set forth in several international human rights
instruments.”100 This view reflects that of the Office of the
United Nations Commission for Human Rights (OHCHR).101
The provisions of the OHCHR Resolution 2002/77 urge that all
non-abolitionist States refrain from imposing the death penalty
“on a person suffering from any form of mental disorder or to
execute any such person.”102 Certainly “any form of mental
disorder” includes severe mental illness.103
While international communities tend to oppose capital
punishment in general and for individuals with mental
disorders in particular,104 national polls suggest that the United
States public also opposes the death penalty for individuals
98
Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002).
European Union, Delegation of the European Commission to the United
States, EU Policy on the Death Penalty, Letter to Governor of Georgia (Feb. 2002),
available at http://www.eurunion.org/legislat/DeathPenalty/WilliamsGAGovLett.htm
(last visited Dec. 23, 2004). The EU is a treaty-based international organization
comprised of fifteen countries working towards forging strong ties between European
peoples. Id.
100
Letter from European Union to Governor of Texas (April 26, 2004),
available at http://www.internationaljusticeproject.org/pdfs/DEMAR1APatterson.pdf
(last visited on Jan. 3, 2005).
101
The OHCHR is composed of 53 member states spanning several continents
that strive to defend human rights and promote implementation of agreed upon
international standards. See UNITED NATIONS CYBER SCHOOL BUS, Human Rights and
the United Nations, available at http://www.un.org/cyberschoolbus/humanrights/
about/history.asp (last visited March 26, 2005). See also OFFICE OF THE UNITED
NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS, Brochure, Preface, available at
http://www.unhchr.ch/html/enu6//OHCHR.pdf (last visited Feb. 27, 2005).
102
UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS, The Question
of the Death Penalty, Commission on Human Rights Resolution 2002/77, available at
http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/e93443efabf7a6c4c1256bab0
0500ef6?Opendocument (last visited Dec. 23, 2004).
103
See discussion supra Part III.B.
104
Id. See also EUROPEAN UNION IN THE US, EU Memorandum on the Death
Penalty, available at http://www.eurunion.org/legislat/deathpenalty/eumemorandum.
htm (last visited Dec. 23, 2004).
99
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with severe mental disorders. Varying reports on a Gallup Poll
conducted in May of 2002 found that when asked whether they
favored or opposed the death penalty for “the mentally ill,”
between seventy-three and seventy-five percent of Americans
responded that they opposed it.105 This number approaches the
eighty-two percent of respondents who said they opposed the
death penalty for “the mentally retarded.”106 Additionally, in the
appendix to Chief Justice Rehnquist’s opinion in Atkins, poll
results showed that 63.8% of Americans nationwide do not
support execution of the “mentally impaired.”107 Although the
Court interpreted the term “mentally impaired” to refer to the
mentally retarded, there is nothing to indicate that the poll
respondents excluded the severely mentally ill from
consideration. While the terms “mentally ill” and “mentally
impaired” may seem undefined, individuals with severe mental
disorders undeniably fit within either description. Thus, the
polling data strongly suggests that a significant segment of the
United States disapproves of executing the mentally ill, a
population that would encompass at the very least those
persons with severe mental disorders. These national polls,
combined with state statutes, court opinions, and the views of
world communities, reveal an overwhelming consensus
opposing imposition of capital punishment on defendants with
severe mental disorders.
IV.
SEVERE MENTAL ILLNESS AND ITS IMPACT ON THE
DEFENDANT: A COMPARISON WITH THE DECREASED
CULPABILITY AND VULNERABILITIES OF DEFENDANTS
WITH MENTAL RETARDATION
A.
Criteria for Mental Illness in General
Severe mental disorders comprise a narrow category
under the catch-all mental illness grouping and can arguably
be characterized as involving impaired mental functioning.108
105
See DEATH PENALTY INFORMATION CENTER, Summaries of Recent Poll
Findings, National Polls, available at http://deathpenaltyinfo.org/article.php?scid=
23&did=210#Gallup3/30/00 (last visited Dec. 23, 2004). See also Death Penalty, The
Gallup Poll, available at http://www.pollingreport.com/crime.htm (last visited Dec. 23,
2004).
106
See Death Penalty Information Center, supra note 105; Gallup Poll, supra
note 105.
107
Atkins, 536 U.S. at Appendix to Opinion of Rehnquist, C.J. (2002).
108
See discussion infra Part IV.A.
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Mental illness itself is generally thought of as encompassing
distinct categories of mental disorders marked by impairment
in cognition, mood, and behavior stemming from abnormal
brain function.109 People diagnosed with these disorders
experience symptoms that vary in degree of severity, duration,
and disturbance of daily performance.110 As with other medical
illnesses, these symptoms lie on a continuum.111 At one end, the
less severe disorders respond to outpatient psychotherapy and
medication monitoring.112 At the other end, severe mental
disorders involve gross functional impairment and psychosis
which often incapacitate the individual to the point that
hospitalization is required.113
B.
Severe Mental Illness, Prognosis and Lack of Insight
Severe mental illness is usually restricted to categories
of schizophrenia, schizoaffective disorder and bipolar disorder
(i.e. manic depression).114 The symptoms associated with these
disorders, such as hallucinations and delusions, are principally
treated with antipsychotic medication115 and increase the need
109
OFFICE OF THE SURGEON GENERAL, MENTAL HEALTH: A REPORT OF THE
SURGEON GENERAL, CH. 2, THE FUNDAMENTALS OF MENTAL HEALTH AND MENTAL
ILLNESS, OVERVIEW OF MENTAL ILLNESS 39 (1999), available at http://www.surgeon
general.gov/library/mentalhealth/chapter2/sec2.html (last visited Feb. 2, 2005)
[hereinafter FUNDAMENTALS].
110
Id.
111
Id.
112
Id. at 65-70.
113
See AMERICAN PSYCHIATRIC ASSOCIATION, DEFINITION OF SEVERE MENTAL
ILLNESS, at http://www.psych.org/aids/modules/illness/sld005.htm (last visited Dec. 23,
2004). See also TREATMENT ADVOCACY CENTER, FREQUENTLY ASKED QUESTIONS, FAQ:
SEVERE MENTAL ILLNESS, available at http://www.psychlaws.org/PressRoom/
presskits/AboutTACPressKit/abouttacdoc2.htm#AA_SMI (last visited March 20, 2005)
[hereinafter FAQ].
114
FAQ, supra note 113. For a description of schizophrenia see discussion
infra Part IV. C.1. Bipolar disorder is an illness causing fluctuations in mood and is
characterized by depressive and/or manic episodes. DSM-IV, supra note 53, at 350-51.
A manic episode may entail grandiose ideas, decreased sleep, rapid speech, tangential
thinking, and excessive, impulsive behavior, and is often accompanied by psychotic
symptoms. Id. A depressive episode is marked by depressed mood throughout the day,
apathy, sleep and appetite disturbances, restlessness or loss of energy, distractibility,
feelings of worthlessness, and suicidal thoughts. Id. at 327. Individuals diagnosed with
schizoaffective disorder exhibit symptoms of both schizophrenia and a mood disorder.
Id. at 292. See generally A. Benabarre et al., Bipolar Disorder, Schizoaffective Disorder
and Schizophrenia: Epidemiologic, Clinical and Prognostic Differences, 16 EUR.
PSYCHIATRY, 167 (2001).
115
See also NATIONAL INSTITUTE OF MENTAL HEALTH (NIMH), Schizophrenia,
at 13-15, available at http://www.nimh.nih.gov/publicat/schizoph.pdf (last visited Jan.
28, 2005) [hereinafter NIMH].
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for hospitalization during acute episodes.116 Like mental
retardation, these conditions are not “curable,” although they
may be treatable with medication.117 Because there are several
types of severe mental disorders with variations in symptoms,
there is no definite course of illness.118 For instance, while
advocates and practitioners remain optimistic, statistics reveal
that about half the people diagnosed with schizophrenia will
experience only modest improvement, no improvement, or
death.119 Even taking their medications, about a third will
relapse within a one year time period.120
A person with severe mental illness may be
unsuccessful in seeking treatment or following through with
medication management due to lack of awareness or “insight”
caused by irregularities in brain function.121 This deficiency is
commonly found in both patients with schizophrenia and
patients with bipolar disorder.122 When a person lacks insight,
he or she does not have the ability to realize that he or she is
sick.123 Therefore, when psychotic symptoms cause afflicted
116
AMERICAN PSYCHIATRIC ASSOCIATION, Public Information, Schizophrenia,
available at http://www.psych. rg/public_info/chizo.cfm (last visited Jan. 25, 2005)
[hereinafter Schizophrenia]. The APA reports that “Schizophrenia fills more hospital
beds than almost any other illness, and Federal figures reflect the cost of schizophrenia
to be from $30 billion to $48 billion in direct medical costs, lost productivity and Social
Security pensions.” Id. at 4.
117
FAQ, supra note 113. See also NIMH, supra note 115, at 13.
118
OFFICE OF THE SURGEON GENERAL, MENTAL HEALTH: A REPORT OF THE
SURGEON GENERAL, CH. 4, ADULTS AND MENTAL HEALTH, SCHIZOPHRENIA, COURSE AND
RECOVERY, at 274 (1999), available at http://www.surgeongeneral.gov/library/
entalhealth/chapter4/sec4_1.html (last visited Dec. 23, 2004) (“Most individuals
experience periods of symptom exacerbation and remission, while others maintain a
steady level of symptoms and disability which can range from moderate to severe.”). Id.
119
FAQ, supra note 113. See also SURGEON GENERAL, SCHIZOPHRENIA,
COURSE AND RECOVERY, supra note 118, at 274 (“Most do not return to their prior state
of mental function.”). The course of illness is influenced by factors such as the
individual’s biological vulnerabilities, personal motivation, family or other social
support, and socioeconomic status. Id.
120
FAQ, supra note 113.
121
See Stefano Pallanti, et al., Awareness of Illness and Subjective Experience
of Cognitive Complaints in Patients with Bipolar I and Bipolar II Disorder, 156 AM. J.
PSYCHIATRY 1094 (July 1999). “Poor awareness of one’s own mental illness is an
established feature in schizophrenia.” Celso Arango, et al., Relationship of Awareness
of Dyskinesia in Schizophrenia to Insight into Mental Illness, 156 AM. J. PSYCHIATRY
1097 (July 1999). The medical term for lack of insight is “anosognosia,” which literally
means “to not know a disease.” TREATMENT ADVOCACY CENTER, Briefing Paper,
Impaired Awareness of Illness (Anosognosia): A Major Problem for Individuals with
Schizophrenia and Bipolar Disorder, available at http://www.psychlaws.org/
BriefingPapers/BP14.htm (last visited Dec. 23, 2004).
122
See Pallanti, supra note 121, at 1094. See also Arango, supra note 121, at
1097.
123
TREATMENT ADVOCACY CENTER, MEDICAL RESOURCES, INSIGHT, available
at http://www.psychlaws.org/MedicalResources/index.htm (last visited Dec. 23, 2004).
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persons to erroneously think “that a neighbor is controlling
their behavior with magnetic waves; that people on television
are directing special messages to them; or that their thoughts
are being broadcast aloud to others,” those persons believe such
thoughts to be based in reality.124
Lack of insight differs from denial of one’s illness in that
the former is caused by actual damage to the right hemisphere
of the brain.125 Research indicates that “approximately half of
all patients with schizophrenia and mania have markedly
impaired awareness of their illness as measured by tests of
insight.”126 In some ways, lack of insight renders people with
schizophrenia comparable to patients who have experienced a
stroke or who suffer from Alzheimer's disease.127 Such
individuals consistently refuse to take medication because they
do not believe they are sick. In most cases they will take
medication only under some form of assisted treatment.128
Apart from lack of insight, patients stop complying with
treatment because of uncomfortable side effects, barriers to
treatment, misguided advice to discontinue medications when
the person seems to have improved, and disordered thinking
which causes the person to forget to take medications,.129 The
inability or refusal to comply with treatment tends to lead to
exacerbation of symptoms and coinciding disturbances in
behavior.130 These disturbances can be manifested by
psychiatric hospitalization, suicide attempts, homelessness,
incarceration, and violent acts.131
Although non-adherence to treatment increases the risk
of relapse into acute illness, lay persons frequently do not
understand that individuals with severe mental disorders may
experience a recurrence of psychosis even when compliant with
medications.132 This reality is especially important to consider
when gauging a defendant’s culpability, where jurors might
124
NIMH, supra note 115, at 5-6.
See TREATMENT ADVOCACY CENTER, supra note 123.
126
Id.
127
Id.
128
Id.
129
See Diana O. Perkins, Predictors of Noncompliance in Patients with
Schizophrenia, 63 J. CLINICAL PSYCHIATRY 1121, 1123 (Dec. 2002). See also NIMH,
supra note 115, at 16.
130
NIMH, supra note 115, at 7, 9; FAQ, supra note 113.
131
TREATMENT ADVOCACY CENTER, supra note 123.
132
NIMH, supra note 115, at 15.
125
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erroneously believe that a person has both insight into and
control over his or her illness.133
Severe mental disorders have a clear detrimental
impact on cognition and function, with relatively poor
prognosis for the individual. Therefore, courts should recognize
that such illness affects the criminal offender’s moral
culpability and susceptibility to disadvantage in legal
proceedings, just as the Supreme Court acknowledged the
impact of subaverage intelligence on death row inmates with
mental retardation.
C.
A Comparison of the Impact of the Severe Mental
Disorder of Schizophrenia with the Impact of Mental
Retardation on the Defendant
In order to compare the impact of mental retardation on
capital defendants with the impact of severe mental illness on
the offender, it may be helpful to address their commonalities
by way of example. These next four sections will thus discuss
the range of impairment that individuals with schizophrenia
experience and the effects that psychological and functional
deficiencies have on their moral culpability and vulnerability in
legal proceedings.
1.
Schizophrenia as a severe mental disorder by
which to compare mental retardation
A person with schizophrenia tends to continually
experience either positive or negative symptoms and at
baseline might only be able to minimally care for his or her
needs.134 Positive symptoms involve an exaggeration or
distortion of normal consciousness,135 while negative symptoms
involve blunted personality and emotions, impoverished
thinking, and inability to act in a goal-directed manner.136
133
See Christopher Slobogin, Mental Illness and the Death Penalty, 24 MENT.
PHYS. DIS. L. REP. 667, 670 (2000) (citing a study involving mock jurors who reasoned
that “‘mental illness is no excuse . . . he should have sought help for his problems.’”).
134
“Complete remission (i.e., a return to full premorbid functioning) is
probably not common in this disorder. Of those who remain ill, some appear to have a
relatively stable course, whereas others show a progressive worsening associated with
severe disability.” DSM-IV, supra note 53, at 282.
135
Id. at 53, at 274-75; FUNDAMENTALS, supra note 109.
136
JOURNAL OF CLINICAL PSYCHIATRY, Academic Proceedings Monograph, II.
Negative Symptoms in Schizophrenia, 16 J. CLIN. PSYCH. MONOGRAPH 9 (Feb. 1998).
People with negative symptoms appear to have “a diminution of thoughts that is
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People with psychotic disorders like schizophrenia frequently
have disturbed thought processes.137 Because of these
limitations in functioning and thinking, people with
schizophrenia logically provide a group with which to compare
individuals with mental retardation.
While there are different types of schizophrenia, each
form must have at least two of the following symptoms:
delusions; hallucinations; disorganized speech; disorganized or
catatonic behavior; or negative symptoms.138 A person must also
experience a demonstrably lower level of social and
occupational functioning.139 None of these features can be
caused by substance abuse or another medical condition.140
While a diagnosis of schizophrenia requires manifest psychotic
symptoms for at lease one month, signs of the disturbance
overall must last at least six months.141
Schizophrenia as a rule and mental retardation in
general involve known biological components. Scientific
research supports the theory that certain individuals have a
genetic predisposition to schizophrenia, that certain parts of
the brain in these people are structurally abnormal, that
excessive levels of certain chemicals are present in particular
brain pathways, and that these conditions combine with
environmental stressors to produce this disorder.142 According to
the Centers for Disease Control and prevention, mental
retardation can be caused by defects in chromosomes, brain
reflected in decreased fluency and productivity of speech. This must be differentiated
from an unwillingness to speak . . . .” DSM-IV, supra note 53, at 277.
137
SURGEON GENERAL, Schizophrenia, supra note 118.
138
DSM-IV, supra note 53, at 285. If one of these symptoms is particularly
pronounced, for example, the individual has auditory hallucinations in which he or she
hears two or more voices carrying on a conversation, then only one symptom is
required. Id. at 285.
139
Id.
140
Id. at 286.
141
DSM-IV, supra note 53, at 285.
142
See Jae-Jin Kim et al., Regional Neural Dysfunctions in Chronic
Schizophrenia Studied with Positron Emission Tomography, 157 AM. J. PSYCHIATRY
542 (Apr. 2000); James J. Levitt, et al., Quantitative Volumetric MRI Study of the
Cerebellum and Vermis in Schizophrenia: Clinical and Cognitive Correlates, 156 AM. J.
PSYCHIATRY 1105 (July 1999); Brendan McDonald et al., Anomalous Asymmetry of
Fusiform and Parahippocampal Gyrus Gray Matter in Schizophrenia: A Postmortem
Study, 157 AM. J. PSYCHIATRY 40 (Jan. 2000); Kai Vogeley et al., Disturbed Gyrification
of the Prefrontal Region in Male Schizophrenic Patients: A Morphometric Postmortem
Study, 157 AM. J. PSYCHIATRY 34 (July 2000). See also OFFICE OF THE SURGEON
GENERAL, MENTAL HEALTH: A REPORT OF THE SURGEON GENERAL, CH. 4, ADULTS AND
MENTAL HEALTH, ETIOLOGY OF SCHIZOPHRENIA, at 276 (1999), available at
http://www.surgeongeneral.gov/library/
mentalhealth/chapter4/sec4_1.html#etiology
(last visited Dec. 23, 2004).
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abnormalities, stroke, or childhood infections.143 It can also be
caused by complications at birth such as lack of oxygen to the
baby’s brain.144 Additionally, the mother’s compromised health
and environmental factors might create biological conditions
that place the fetus, baby or child at risk for mental
retardation. For instance, mental retardation might result from
a pregnant woman who is chemically addicted, malnourished,
or prescribed certain medications.145 It may also result from
abuse of the child or head injury.146
The etiologies of schizophrenia and mental retardation
differ in that on the one hand, a first psychotic episode related
to schizophrenia generally occurs in the early to mid-twenties
for males, the later twenties for females.147 In contrast, mental
retardation can arise in infancy and must generally be present
before a child turns 18 years old.148 Yet whether caused by
genetic factors alone or influenced by the environment, both
schizophrenia and mental retardation involve conditions which
indicate that the brain has been affected in a way that
produces significant vulnerabilities in the individual.
2.
Decreased moral culpability in criminal offenders
with schizophrenia
Although people with schizophrenia might not be of
subaverage intelligence as are people with mental retardation,
many people with schizophrenia actively experience cognitive
disturbances.149 These problems can include difficulties in:
remembering, orienting oneself to time and place,
concentrating, processing information, and thinking abstractly
or in a goal-directed way.150 As a result, people with
schizophrenia often exhibit behavior marked by impulsiveness
143
CENTERS FOR DISEASE CONTROL AND PREVENTION, NATIONAL CENTER ON
BIRTH DEFECTS AND DEVELOPMENTAL DISABILITIES, MENTAL RETARDATION, available
at http://www.cdc.gov/ncbddd/dd/ddmr.htm (last visited Dec. 23, 2004).
144
Id.
145
Id.
146
Id.
147
DSM-IV, supra note 53, at 282.
148
Id. at 44.
149
See DSM-IV, supra note 53, at 274; OFFICE OF THE SURGEON GENERAL,
MENTAL HEALTH: A REPORT OF THE SURGEON GENERAL, CH. 4, ADULTS AND MENTAL
HEALTH, SCHIZOPHRENIA, OVERVIEW, (1999), available at http://www.surgeongeneral.
gov/library/mentalhealth/chapter4/sec4_1.html#etiology (last visited Dec. 23, 2004)
[hereinafter Adults and Mental Health].
150
Id. See also DSM-IV, supra note 53, at 279.
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and “chaotic or imprecise planning.”151 These disturbances could
exist in addition to psychotic symptoms that might distort the
person’s perception of reality and cause illogical thinking.152 For
instance:
[P]atients suffering from paranoid-type symptoms—roughly onethird of people with schizophrenia—often have delusions of
persecution, or false and irrational beliefs that they are being
cheated, harassed, poisoned, or conspired against. These patients
may believe that they, or a member of the family or someone close to
them, are the focus of this persecution.153
Such thought disorders diminish the culpability of defendants
with schizophrenia just as do the cognitive limitations of
defendants with mental retardation.
People with schizophrenia similarly are not necessarily
found to be more likely to engage in violence than others.154
Studies that formerly found a link between violence and
disorders such as schizophrenia have since become
controversial, if not outdated.155 Researchers have asserted that
“Mental disorders—in sharp contrast to alcohol and drug
abuse—account for a miniscule portion of the violence that
afflicts American society.”156 The only segment of the population
151
See Gerard E. Hogarty et al., Cognitive Enhancement Therapy for
Schizophrenia, Effects of a 2-Year Randomized Trial on Cognition and Behavior, 61
ARCHIVES GEN. PSYCHIATRY, 866, tbl. 1 (Sept. 2004). See also infra Part IV.C.3.
152
Schizoprhenia, supra note 116.
153
NIMH, supra note 115, at 5.
154
While the Court in Atkins referred to the likelihood of people with mental
retardation to engage in “crime” in general, medical research of individuals with severe
mental disorders tends to focus specifically on violence. Atkins v. Virginia, 536 U.S.
350-51 (2002). Thus, the following discussion of research findings pertains only to
violence.
155
Cameron Wallace et al., Criminal Offending in Schizophrenia Over a 25Year Period Marked by Deinstitutionalization and Increasing Prevalence of Comorbid
Substance Use Disorders, 161 AM. J. PSYCHIATRY 716 (2004). A noteworthy British
national clinical survey found that “There [were] substantial rates of mental disorder
in people convicted of homicide. Most [did] not have severe mental illness or a history
of contact with mental health services.” Jenny Shaw et al., Mental Disorder and
Clinical Care in People Convicted of Homicide: National Clinical Survey, 318 BRIT.
MED. J. 1240 (May 8, 1999). Some studies have also found that offenders with
schizophrenia are less likely to reoffend than offenders without schizophrenia, given
the same opportunity. Marnie E. Rice & Grant T. Harris, The Treatment of Mentally
Disordered Offenders, 3 PSYCH. PUB. POL. L. 126, 131 (1997). Another study found that
“in the combined sample of offenders as well as among the insanity acquittees alone,
recidivism rates (both general and violent) were lower for those diagnosed as psychotic
than for nonpsychotic offenders.” Id.
156
John W. Parry, Criminal Mental Health Jurisprudence, 24 MENTAL &
PHYSICAL DISABILITY L. REP. 538, 542 (2000) (citing John Monahan & J. Arnold,
Violence by People with Mental Illness: A Consensus Statement by Advocates and
Researchers, 19 PSYCHIATRIC REHABILITATION J. 67 (1996)).
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with schizophrenia that seems to definitively demonstrate a
strong correlation with increased violence is that which abuses
These
findings
comport
with
the
substances.157
acknowledgement that individuals with severe mental
disorders who receive sufficient treatment are no more
dangerous than the general population.158
In addition to cognitive disturbances and the finding
that “the total amount of violence in society attributable to
psychotic patients is small,”159 individuals with schizophrenia
also share with persons with mental retardation difficulties
157
These substances range from alcohol and marijuana to stimulants and
sedatives. Michael Soyka, Substance Misuse, Psychiatric Disorder and Violent and
Disturbed Behaviour, 176 BRIT. J. PSYCHIATRY 345 (April 2000).
158
APA Fact Sheet, Violence and Mental Illness, at 3 (Jan. 1998), available at
http://www.psych.org/public_info/violence.pdf (last visited Jan. 30, 2005) [hereinafter
Violence]. See also Treatment Advocacy Center, Consequences of Lack of Treatment, Are
People with Mental Illness Dangerous?, available at http://www.psychlaws.org/
PressRoom/presskits/abouttacdoc2.htm#lot_danger (last visited Feb. 24, 2005). Studies
have shown that persons diagnosed with schizophrenia, bipolar disorder and other
mood disorders were more likely than persons without a mental disorder to report
having been violent within a specific time frame and that this behavior was related to
the presence of psychotic symptoms. Rice & Harris, supra note 155, at 130. However,
persons with substance abuse disorders had a greater likelihood of engaging in violence
or other criminal behavior than persons with severe mental disorders. Id. at 130-31.
The American Psychiatric Association points out that the factors associated with
increased risk for violence are the same for those persons with mental illness as for
those persons without such a diagnosis. AMERICAN PSYCHIATRIC ASSOCIATION, Violence
and Mental Illness, Conditions that Increase the Risk of Violence, available at
http://www.psych.org/public_info/VIOLEN~1.cfm (last visited Feb. 24, 2005). These
factors include: history of violence among family members; lack of family or community
support; stressful, chaotic living situation; and exposure to an environment in which
substance abuse is common. Id. One body of research asserts that there is a significant
correlation between schizophrenia and violence. However, some researchers qualify
this finding by stating that:
[N]o sizeable body of evidence clearly indicates the relative strength of
schizophrenia or mental illness in general as a risk factor for violence
compared with other risk factors. Indeed, compared with the magnitude of
risk associated with the combination of male gender, young age and lower
socio-economic status, the risk of violence presented by mental disorder is
modest.
Elizabeth Walsh et al., Violence and Schizophrenia: Examining the Evidence, 180 BRIT.
J. PSYCHIATRY 490 (2002) (citations omitted). Furthermore, the evidence points to
substance abuse and psychotic symptoms as being factors distinguishing people with
schizophrenia who are at increased risk for violence. Id. Such findings are again
consistent with the understanding that untreated individuals with schizophrenia and
or those who abuse substances are more prone to violence.
159
Dale E. McNiel, Correlates of Violence in Psychotic Patients, 27
PSYCHIATRIC ANNALS 683, 684 (1997). McNiel refers to a study which later concluded:
[M]ajor mental disorder is a statistically significant but modest risk factor for
violence . . . . [T]he total amount of violence in society attributable to
psychotic patients is small (in part because serious mental illness itself is
rare), and that the level of risk posed by psychotic disorders is much less than
that of substance use.
Id.
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functioning in major life areas. Essential to a diagnosis of
schizophrenia are social and occupational dysfunction in which
“one or more major areas of functioning such as work,
interpersonal relations, or self-care are markedly below the
level achieved prior to the onset. . . .”160 Individuals so diagnosed
frequently suffer from “unemployment, disrupted education,
limited social relationships, isolation, legal involvement, family
stress, and substance abuse.”161 These elements of
schizophrenia are analogous to the adaptive behavior deficits
that form part of the definition of mental retardation. A person
with mental retardation is limited in the level of academic
skills that he or she can acquire and may or may not be able to
develop the social and vocational skills necessary to be selfsufficient, depending on the level of mental retardation.162
When individuals with schizophrenia suffer an acute
phase, their level of functioning becomes more comparable to
that of people with moderate to severe mental retardation.
Although the conditions take on noticeably different
appearances, the capacity of either population to communicate,
think coherently and behave appropriately is similarly
substantially impaired. The psychotic symptoms tend to
influence the person to behave bizarrely, become agitated, and
speak nonsense.163 He or she might also be unable to bathe and
dress appropriately.164 Individuals with schizophrenia who lack
awareness of their illness also typically do not take their
medications.165
In sum, offenders with severe mental illness, although
not intellectually impaired, suffer from cognitive and
behavioral impairments analogous to the deficiencies
experienced by defendants with mental retardation found less
culpable in Atkins.
3.
Individuals with schizophrenia and the penal
justifications for the death penalty.
In keeping with the Atkins Court rationale, the two
penal goals of retribution and deterrence are not furthered by
160
161
162
163
164
165
DSM-IV, supra note 53, at 285.
FUNDAMENTALS, supra note 109.
DSM-IV, supra note 53, at 41.
Id. at 276.
Schizoprhenia, supra note 116, at 276.
See text accompanying footnotes 122, 124.
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the execution of individuals with severe mental illness. In
Atkins, the Court weighed heavily the concern that:
[I]t is the same cognitive and behavioral impairments that make
these [defendants with mental retardation] less morally culpable—
for example, the diminished ability to understand and process
information, to learn from experience, to engage in logical reasoning,
or to control impulses—that also make it less likely that they can
process the information of the possibility of execution as a penalty
and, as a result, control their conduct based upon that information.166
Likewise, the Court should consider that the
deficiencies suffered by defendants with schizophrenia that
render them less culpable also impede their ability to refrain
from conduct based on a possible penalty of death. Indeed,
recent research has found that “[p]atients with schizophrenia
who commit violent acts have insight deficits, including lack of
awareness of the legal implications of their behavior.”167
The failure to make the critical connection between
conduct and legal consequences directly affects the capacity of
the defendant with schizophrenia to be deterred. Whereas
someone with mental retardation might not refrain from
committing an offense because his or her intellectual
functioning does not allow that person to see beyond the act to
the possibility of penalty, the individual with schizophrenia
might also not refrain from committing an offense because of
cognitive dysfunction or firmly held erroneous beliefs that lead
the defendant to think that he or she is acting in accordance
with reality.168
Justice is also not advanced in terms of retribution,
because a person with schizophrenia who commits a capital
crime is less morally culpable than a person without
schizophrenia.169 Retribution entails punishing the offender in
proportion to his or her culpability.170 The Supreme Court has
asserted that “[i]f the culpability of the average murderer is
insufficient to justify the most extreme sanction available to
the State, the lesser culpability of the mentally retarded
offender surely does not merit that form of retribution.”171
Accordingly, the death penalty is certainly a disproportionate
166
Atkins v. Virginia, 536 U.S. 304, 320 (2002).
Peter F. Buckley et al., Insight and Its Relationship to Violent Behavior in
Patients with Schizophrenia, 161 AM. J. PSYCHIATRY 1712 (2004).
168
See Violence, supra note 158, at 2. See also DSM-IV, supra note 53, at 275.
169
See discussion supra Part IV.C.3.
170
Atkins, 536 U.S. at 319.
171
Id.
167
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punishment to inflict on an offender with schizophrenia, who
by definition has experienced “profound disruption in cognition
and emotion, affecting the most fundamental human
attributes: language, thought, perception, affect, and sense of
self.”172
4.
Disadvantages
in
criminal
proceedings
associated with severe mental illnesses such as
schizophrenia
Apart from the limited applicability of the normal penal
justifications, greater potential for vulnerabilities in legal
proceedings present disadvantages to severely mentally ill
defendants that are similar to those faced by defendants with
mental retardation. One attorney’s statement that “[i]f the
defendant knows he is in a courtroom and can tell the
difference between a judge and a grapefruit, he is deemed
competent to stand trial,” albeit hyperbolic, alludes to the
concern that defendants who are mentally ill are assessed as
competent by low standards and are therefore often
inappropriately propelled into court.173 Defendants may
understand the role that each person plays in the legal process,
but because of delusions or impaired judgment, may distrust or
refuse to cooperate with defense counsel, or believe that a
defense is somehow unnecessary.174
Like persons with mental retardation, defendants with
schizophrenia might still be found competent to stand trial.
Their symptoms do not necessarily sever them completely from
reality.175 They might be aware, for example, that “people eat
three times a day, sleep at night and use the streets for driving
vehicles. For that reason, their behavior may appear quite
172
FUNDAMENTALS, supra note 109, at 269.
Ronald L. Kuby & William M. Kunstler, So Crazy He Thinks He Is Sane:
The Colin Ferguson Trial and the Competency Standard, 5 CORNELL J.L. & PUB. POL’Y
19, 25 (1995).
174
See Press Release, American Civil Liberties Union, ACLU Opposes Death
Sentence for Mentally Ill Inmate, First Ohio Execution in 35 Years (Feb. 11, 1999),
available at http://www.aclu.org/news/NewsPrint.cfm?ID=8403&c=17 (last visited Jan.
24, 2004). See also Martin Sabelli & Stacey Leyton, Train Wrecks and Freeway
Crashes: An Argument for Fairness and Against Self Representation in the Criminal
Justice System, 91 J. CRIM. L. & CRIMINOLOGY 161, 185-86 (2000). Situations in which
severely mentally ill defendants insist on self representation and refuse mental illness
defenses raise the issue of whether assistance of counsel should be mandatory to serve
the defendants’ best interests in capital cases. Id. at 186, 197-98.
175
Schizophrenia, supra note 116.
173
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1023
normal much of the time.”176 On the other hand, once inside the
courtroom, people with schizophrenia may not be able to keep
up the appearance of normalcy because of their outward
responses to underlying symptoms. As in the case of an
individual with mental retardation, a defendant with
schizophrenia might also be a poor witness whose demeanor
“may create an unwarranted impression of lack of remorse.”177
Because a schizophrenic individual tends to “not show the signs
of normal emotion, perhaps may speak in a monotonous voice,
have diminished facial expressions, and appear extremely
apathetic,”178 his or her appearance in the courtroom might
have a similar adverse effect on the jury.
Perhaps most significantly, just as with mental
retardation, severe mental illness “as a mitigating factor can be
a two-edged sword that may enhance the likelihood that the
aggravating factor of future dangerousness will be found by the
jury.”179 While most death penalty statute provisions create the
potential for severe mental illness to be a mitigating factor,180
studies have demonstrated that the factfinder often treats such
illness as an aggravator.181 For example, research into 128
Georgia capital cases in 1990 revealed that an unsuccessful
insanity defense strongly correlated with a sentence of death.182
Given that defendants who raise the insanity defense generally
present evidence of mental illness,183 this correlation suggests
that juries and judges may be influenced to impose the death
penalty even when mitigating evidence exists. This result is
not necessarily inconsistent with a finding of lesser culpability
in a severely mentally ill offender.184 Though studies using mock
jurors offer a range of theories to explain why the insanity
defense may fail for the afflicted defendant,185 it is the jurors’
176
Id. (emphasis added).
Atkins v. Virginia, 536 U.S. 304, 320-21 (2002).
178
NIMH, supra note 115, at 6.
179
Atkins, 536 U.S. at 321.
180
See discussion supra Part IV.A. See also Christopher Slobogin, Mental
Illness and the Death Penalty, 24 MENT. PHYS. DIS. L. REP. 667, 669 (2000).
181
Slobogin, supra note 180, at 669-70.
182
Id. at 669 (citing David Baldus et al., EQUAL JUSTICE AND THE DEATH
PENALTY, 644-45 (1990)).
183
FRONTLINE, Insanity Defense FAQs, at http://www.pbs.org/wgbh/pages/
frontline/shows/crime/trial/faqs.html (last visited March 1, 2005).
184
Aletha M. Claussen-Schulz et antilapse., Dangerousness, Risk Assessment,
and Capital Sentencing, 10 PSYCHOL. PUB. POL’Y & L. 471, 475-476, 481 (2004).
185
Slobogin, supra note 180, at 670 (citing Lawrence T. White, Juror Decision
Making in the Capital Penalty Trial: An Analysis of Crimes and Defense Strategies, 11
L. HUM. BEHAV. 113, 125 (1987); Phoebe C. Ellsworth et al., The Death-Qualified Jury
177
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perception of the defendant’s future dangerousness at
sentencing that appears to be the decisive factor in the decision
to impose the death penalty, regardless of the level of the
defendant’s culpability.186
The impact of a severe mental disorder such as
schizophrenia on a defendant is all-encompassing. When a
psychiatrist or other mental health expert diagnoses an
individual as severely mentally ill, that individual has been
evaluated as having vulnerabilities that ordinary people do not
share. These vulnerabilities span difficulties in obtaining
adequate treatment to the inability to meaningfully participate
in one’s legal defense. Professionals in the field of mental
health, such as members of the American Psychological
Association, recognize that these liabilities place the severely
mentally ill in a category of persons who should be spared from
the death penalty.187 As discussed in the next Part, Kelsey
and the Defense of Insanity, 8 L. HUM. BEHAV. 81, 90 (1984)).
186
Slobogin, supra note 180, at 670.
187
AMERICAN PSYCHOLOGICAL ASSOCIATION ONLINE, The Death Penalty in the
United States, Resolution, available at http://www.apa.org/pi/deathpenalty.html?
CFID=2646048&CFTOKEN=67528764 (last visited Dec. 23, 2004). People with bipolar
disorder and schizoaffective disorder have characteristics that impact them in a
manner sufficiently similar to individuals with mental retardation to the extent that
they, too, should be treated in the same way during capital sentencing. Both of these
illnesses entail impediments experienced by anyone with a severe mental disorder,
including: psychosis and other psychiatric symptoms induced by brain disorder;
recurrent need for hospitalization; lack of insight; complications with receiving
adequate treatment; and the risk of being perceived as a future threat to society due to
their psychiatric illness. See discussion supra Part IV.B. Additionally, people with
bipolar disorder experience alternating episodes of mania and depression throughout
their lifetimes. See NIMH, Bipolar Disorder: What is the Course of Bipolar Disorder?
available at http://www.nimh.nih.gov/publicat/NIMHbipolar.pdf (last visited March 20,
2005) [hereinafter NIMH, Bipolar Disorder]. While some individuals might experience
asymptomatic interludes, “as many as one-third of people [with bipolar disorder] have
some residual symptoms.” Id. Moreover, “a small percentage of people experience
chronic unremitting symptoms despite treatment.” Id. A diagnosis of schizoaffective
disorder, on the other hand, features symptoms of schizophrenia concurrent with
symptoms of either depression, mania, or both. DSM-IV, supra note 53, at 292-96. This
complexity of symptoms leads to challenges in diagnosis of this disorder. See NATIONAL
ALLIANCE FOR THE MENTALLY ILL, Schizoaffective Disorder, available at
http://www.nami.org/Content/ContentGroups/Helpline1/Schizoaffective_Disorder.htm
(last visited Jan. 25, 2004); see also NMHA, Schizoaffective disorder, available at
http://www.nmha.org/infoctr/factsheets/52.cfm (last visited Jan. 25, 2004) [hereinafter
NMHA, Schizoaffective Disorder]. People with schizophrenia might appear to have
deficiencies that lay persons more readily compare to people with mental retardation.
In the absence of full appreciation for the consequences of enduring longstanding
severe psychiatric illness by people with bipolar disorder or schizoaffective disorder,
the public might understandably be hesitant to group these individuals within a
category that includes offenders with mental retardation or schizophrenia. Yet given
that people with bipolar disorder or schizoaffective disorder share the same core
features of severe mental illness as those individuals with schizophrenia, they must
certainly be deemed less culpable than the average murderer. Accordingly, they too
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1025
Patterson and James Colburn were, and Charles Walker is,
among such persons.
V.
CASE ILLUSTRATIONS
A.
Kelsey Patterson
Kelsey Patterson grew up in Palestine, Texas, raised by
his grandmother after his mother died when he was four years
old.188 He appeared to have a normal childhood and joined the
military following high school.189 He received an honorable
discharge after two years of service in order to care for his
grandmother who had become terminally ill.190 Patterson’s halfsister reports that his mental health began to deteriorate when
his grandmother died, that he became withdrawn and began to
talk and laugh to himself.191 When he was about twenty-fouryears old, the time period associated with a first psychotic
break in males, Patterson was arrested for aggravated assault
on a police officer.192
In the ensuing years, Patterson was charged with the
attempted murders of co-workers on two separate occasions.193
Psychiatrists diagnosed him with paranoid schizophrenia and
both times determined that he had been suffering from a
mental disease or defect at the time of the crimes and could not
conform his behavior to the law.194 Patterson was also arrested
for assault.195 The episodes of violence were accompanied by
paranoid ideation of being poisoned and raped.196 Patterson
spent months at inpatient psychiatric centers, including a state
hospital.197
Despite a pattern of extremely violent and paranoid
behavior, Patterson was evidently not receiving any significant
treatment at the time he shot Louis Oates and Dorothy Harris
should be excluded from the death penalty.
188
INTERNATIONAL JUSTICE PROJECT, Kelsey Patterson, available at
http://www.internationaljusticeproject.org/illnessKPatterson.cfm (last visited Dec. 20,
2004) [hereinafter IJP, Kelsely Patterson].
189
Id.
190
Id.
191
AIUSA, Another Texas Injustice, supra note 1, at 3.
192
Id. See also DSM–IV, supra note 53, at 282.
193
Patterson, 2003 WL 21355999, at **1. See also IJP, Kelsey Patteron, supra
note 190.
194
IJP, Kelsey Patteron, supra note 188.
195
Id.
196
Id.
197
Id.
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in 1992.198 Although his half-brother had attempted to seek help
for him prior to the murders,199 there is no mandatory
treatment (i.e. involuntary commitment) for a person who is
not imminently a danger to himself or others.200 It may be
particularly difficult to obtain help even under ordinary
circumstances in the State of Texas, which recently ranked
47th in the United States for funding of treatment for the
mentally ill.201
Consistent with his psychiatric history, Patterson
continued to exhibit symptoms of schizophrenia during his
competency hearing and throughout his trial. The judge
repeatedly ordered Patterson out of the courtroom due to
outbursts during which he would claim that electrical devices
had been inserted to his body or that he had been poisoned.202
Yet the mental health experts involved did not seem to
seriously consider these signs of severe mental illness.203
Grigson, the state forensic psychiatrist who had previously
found Patterson incompetent in 1980, undermined Patterson’s
claims of being a victim of ongoing conspiracy, food poisoning,
and inner ear implantation by suggesting that he had since
learned how to fake psychotic symptoms in order to manipulate
the judicial system.204 In contravention to professional medical
standards, neither Grigson nor the state clinical psychologist
Quijano had examined Patterson before declaring him to be
competent.205
198
AIUSA, Another Texas Injustice, supra note 1, at 3-4.
Id. at 3.
200
See Amy E. Lansing et al., The Treatment of Dangerous Patients in
Managed Care: Psychiatric Hospital Utilization and Outcome. 19 GEN. HOSP.
PSYCHIATRY, 112, 112 (1997); Harriet P. Lefley, Cultural Perspectives on Families,
Mental Illness, and the Law, 23 INT’L J.L. & PSYCHIATRY 229, 237 (2000). See also
AIUSA, Another Texas Injustice, supra note 1, at 3.
201
AIUSA, Another Texas Injustice, supra note 1, at 3. Fifth Circuit Judge
Fortunato Benavides placed blame for the deaths on Texas’ mental health system.
Mike Tolson, Mentally Ill Killer’s Life on the Line, HOUS. CHRON., Aug. 11, 2002, at
A37.
202
Patterson, 2003 WL 21355999, at **2. The AIUSA report states that at one
point the judge went so far as to order Patterson to be gagged with tape. AIUSA,
Another Texas Injustice, supra note 1, at 11.
203
AIUSA, Another Texas Injustice, supra note 1, at 6-7.
204
Patterson, 2003 WL 21355999, at **5. See also AIUSA, Another Texas
Injustice, supra note 1, at 7.
205
Indeed, Grigson, nicknamed “Dr. Death” because of his frequent testimony
for the prosecution in capital murder cases, was later expelled by the American
Psychiatric Association for making predictions about a defendant’s future
dangerousness without having examined them. Pat Gillespie, James Grigson Expert
Psychiatric Witness Was Nicknamed Dr. Death, DALLAS MORNING NEWS, June 14,
2004, at 4B. Apparently, Grigson and Quijano had only reviewed the medical files
199
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In addition to this questionable assessment of his
competence, Patterson himself further compromised his case
through disruptive behavior during his state post-conviction
hearing and imprudent decision-making in general. Despite the
damning evidence against him, Patterson rejected the
prosecution’s offer of a life sentence in exchange for a guilty
plea, chose to testify during the guilt phase of his trial, and
tried to fire his lawyers.206 Moreover, Patterson refused to
submit to examination by mental health professionals.207 Like
other mentally ill defendants before him, Patterson continually
made decisions against counsel’s advice and disobeyed the
judge’s orders in such a way as to demonstrate gross
impairment of judgment and lack of self-control.208
The prosecution, for its part, attempted to persuade the
jury to treat Patterson’s schizophrenia only as an indicator of
future dangerousness. “If you ever diagnose schizophrenia,”
said the prosecutor, “what that is going to do is give that
person a licence [sic] to kill anybody, anywhere, anytime, and
they come in and say, 15 years ago some psychologist said I
was schizophrenic. So, because of that I just blew two holes in
two people’s heads. You can’t hold me responsible for it.”209
Ultimately, Patterson’s rejection of a plea forced the jury to
choose between the permanent penalty of death and a prison
term which allowed for parole.
Despite the senselessness of the murders and the
prosecutor’s efforts to present evidence that Patterson had been
malingering or at the least would prove dangerous, the jury
nevertheless seemed to contemplate that he might not be
deserving of capital punishment, as evidenced by their request
for a dictionary to look up the meaning of “mitigating
circumstances.”210 In the end, the jury found Patterson to be a
future danger to society and that there was not sufficient
related to a 1984 hospitalization. AIUSA, Another Texas Injustice, supra note 1, at 7.
206
AIUSA, Another Texas Injustice, supra note 1, at 9-11.
207
Id. at 14.
208
See, e.g., Kuby & Kunstler, supra note 173, at 23 (positing that a man who
suffered from delusional disorder, although deemed competent, should not have been
tried, because he “was clearly incapable of assisting in his own defense in any
meaningful way” and “lacked the capacity to trust any attorney enough to actually and
rationally evaluate the advice the attorney provided.”).
209
AIUSA, Another Texas Injustice, supra note 1, at 12.
210
Id. at 13. According to the AIUSA report, the judge denied the request and
instead had the Charge reread which instructed that “[t]he jury shall consider
mitigating evidence to be evidence that a juror might regard as reducing the
defendant’s moral blameworthiness.” Id. at 13 n.16.
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mitigating evidence to warrant a life sentence,211 which allows
for the possibility of parole after forty years.212
Patterson experienced insurmountable vulnerabilities
as a severely mentally ill defendant. Much like a person with
mental retardation, he displayed cognitive and behavioral
defects that reduced his moral culpability. Furthermore,
Patterson’s severe mental disorder diminished his ability to
contain himself in the courtroom, or to participate adequately
in his defense. Most significant, the jury considered Patterson
to be at risk of future dangerousness, given his history of
paranoia culminating in violence. This factor was dispositive of
Governor Perry’s decision to deny clemency, despite the Texas
Board of Pardons and Paroles’ 5-1 vote to recommend a life
sentence on the eve of Patterson’s execution.213 Patterson’s 2004
execution stirred debate over Texas’s lack of life without parole
option for capital defendants whose circumstances call for
mercy.214
B.
James Colburn
The 2003 execution of James Colburn perhaps even
more specifically highlighted the need to be conscious of the
deficiencies of severely mentally ill individuals and to approach
them with the same mindset as in the case of people with
mental retardation. James Colburn was executed on March 26,
2003 for the murder and attempted rape of Peggy Murphy.215
Colburn, a man with an extensive psychiatric history, presents
another apt example of an individual whose life might have
been spared, if not for the impairments caused by his severe
mental disorder.
Colburn first saw a psychiatrist at age fourteen.216 By
the time he reached seventeen in 1977 doctors had diagnosed
211
Id. at 13.
TEX. CRIM. PROC. CODE ANN. § 37.071(2)(e)(2)(B) (2005) (describing
procedure in capital case).
213
Editorial, Our Turn: Perry Ignores Facts to Allow Execution, SAN ANTONIO
EXPRESS NEWS, May 20, 2004, at 6B.
214
See Editorial, supra note 213. See also, Editorial, Our View: Two More
Death Penalty Inequities, SPRINGFIELD NEWS LEADER, May 21, 2004, at 8A; Associated
Press, Senator Urges Sentencing Options, HOUS. CHRON., May 21, 2004, at 22; Scott
Gold, The Nation: Texas Weighs Its Life or Death Decisions, L.A. TIMES, Aug. 15, 2004,
at A17.
215
David Carson, TEXAS EXECUTION INFORMATION CENTER, James Colburn,
at http://www.txexecutions.org/reports/301.asp (last visited Jan. 24, 2004).
216
Id.
212
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him as having paranoid schizophrenia.217 Colburn suffered not
only from hallucinations, delusions and suicidal thoughts, but
also exhibited symptoms of posttraumatic stress disorder as a
result of being raped while hitchhiking.218 Throughout his late
teens, Colburn received psychiatric treatment for his condition,
which included state hospitalization in 1979.219 His behavior
was marked by suicide attempts, self-mutilation, enuresis,220
and substance abuse attributed to his psychiatric disorder.221
From 1977 to 1991, he incurred six felony convictions,
including for aggravated robbery and arson, and served prison
time.222
During the week before the capital offense occurred,
Colburn had allegedly experienced increased psychosis,
eventually leading him to attempt an overdose on valium in
response to hearing voices telling him to commit suicide.223 The
next day he awoke to continued command auditory
hallucinations and later met Murphy on the street outside his
home.224 Colburn apparently invited Murphy into his home for a
drink of water.225 After she resisted his sexual advances, he
strangled her and stabbed her in the neck, killing her.226
Colburn immediately reported the crime to his neighbor who
phoned the police.227 Accounts of his videotaped confession
described how Colburn rocked back and forth, lost control of his
bladder, and shook uncontrollably.228
217
Id. This fact speaks to the longevity of Colburn’s illness, given that
schizophrenia normally has an age of onset in the early to mid-20s for males. DSM-IV,
supra note 53, at 282.
218
INTERNATIONAL JUSTICE PROJECT, Mental Illness, James Blake Colburn, at
http://www.internationaljusticeproject.org/illnessJColburn.cfm (last visited Dec. 30,
2003) [hereinafter IJP, James Blake Colburn].
219
Id.
220
Enuresis is repeated urination during the course of the day into bed or
clothing, not due to a general medical condition. DSM-IV, supra note 53, at 108.
221
IJP, James Blake Colburn, supra note 218.
222
Carson, supra note 215.
223
AIUSA, James Colburn: Mentally Ill Man Scheduled for Execution in
Texas, at 3, at http://web.amnesty.org/aidoc/aidoc_pdf.nsf/Index/AMR511582002
ENGLISH/$File/AMR115802.pdf (last visited Jan. 29, 2005) [hereinafter AIUSA,
James Colburn]. In the months prior to Murphy’s murder, records indicate that
Colburn had been receiving only sporadic outpatient treatment. Id. at 3.
224
Id.
225
Colburn v. Cockrell, 37 Fed.Appx. 90, 2002 WL 1021891, at **1 (5th Cir.
May 9, 2002).
226
Id.
227
Id. One account reports that Colburn stated he killed Murphy in order to
return to prison. Carson, supra note 215.
228
AIUSA, James Colburn, supra note 223, at 2.
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While being detained prior to trial, Colburn apparently
received insufficient mental health treatment.229 Although
Colburn was indigent, the Texas county jail that housed him
required that he pay for medication from his inmate account.230
Revealing of his complete lack of insight, Colburn instead chose
to use his money towards small things like candy and soda.231
Without the psychiatric care and structure of an adequate
mental health regimen, Colburn’s condition during this period
deteriorated to the point of ongoing suicidal ideation, urination
and defecation on himself, auditory hallucinations, agitation,
and need for physical restraint.232
When a person such as Colburn suffers from a severe
mental disorder, they require medication to control their
symptoms.233 Throughout the course of the trial, Colburn
exhibited signs of heavy sedation as a result of receiving
regular injections of Haldol, a strong anti-psychotic drug.234 He
at times was sufficiently drowsy or asleep as to snore loudly in
court, prompting a recess in order for his lawyers to rouse
him.235 His lawyers argued that the sedative effects of the
medication prevented Colburn from effectively communicating
with counsel or understanding the proceedings against him.236
Although on appeal Colburn’s sedation was found not to impact
his competency, certainly repeated lapses into unconsciousness
placed Colburn at a disadvantage not normally experienced by
the average defendant at trial. At the least, his demeanor may
have caused him to come across as being disinterested in the
proceedings around him.
In addition to difficulties produced by the side effects of
Haldol, Colburn’s case was also compromised by use of only the
testimony of Walter Quijano, the court-appointed psychologist.
Colburn’s lawyers during postconviction proceedings argued
that his trial attorney should have hired a psychiatrist who
could explain the pharmacological and medical evidence to the
jury.237 Instead they relied on a psychologist who specialized in
229
Id. at 3.
Id.
231
Id.
232
Id.
233
See text accompanying footnote 117.
234
AIUSA, James Colburn, supra note 223, at 4. See also Patty Reinert, High
Court Refuses Death Row Case, Mentally Ill Texas Man Will Seek Clemency from Perry,
Lawyers Say, HOUS. CHRON., Jan. 2, 2003, at 5.
235
AIUSA, James Colburn, supra note 223, at 4.
236
Reinert, supra note 234.
237
Colburn v. Cockrell, 37 Fed.Appx. 90, 2002 WL 1021891, at **11 (5th Cir.
230
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sex crimes238 and on Dr. Quijano, who, while finding that
Colburn’s schizophrenia was “intractable,” “chronic,” “not
expected to disappear,” and “difficult to treat,” determined that
he was sane because Colburn knew at the time he committed
the crime that his actions were wrong.239 It is possible that a
more lucid defendant might have urged the use of the more
favorable or informed testimony at his trial or played a more
active role in his defense.240 Yet drowsy from medication during
the course of the proceedings and “chronically mentally ill” as
diagnosed by the court-appointed psychologist,241 Colburn did
not appear to have had that opportunity.
Despite the prosecutor’s efforts to convince jurors to
consider solely the death penalty,242 they initially contemplated
a life sentence. While in deliberation, the foreman specifically
asked the judge whether a life sentence would entail the
possibility of parole for Colburn.243 Afterwards, one juror was
quoted as saying, “Had I realized that he would not finish
serving his prison time until he was over 70 years of age, I
sincerely believe that I would have voted to give him a life
sentence.”244 Without this knowledge, and believing that
Colburn presented a future danger to society, the jury
eventually inflicted a sentence of death on Colburn.245
C.
Charles Walker
While the involvement of Patterson and Colburn in
their respective crimes is without question, Charles Walker’s
role in the murder for which he was convicted is in dispute.
Similar to Patterson, Walker refused to plea-bargain. His case
stands apart from Patterson’s, however, in that Walker
May 9, 2002).
238
Id.
239
AIUSA, James Colburn, supra note 223, at 3-4.
240
While trial preparation and witness selection are normally within the
lawyer’s control, the lawyer has a duty to “reasonably consult with the client about the
means by which the client’s objectives are to be accomplished.” AMERICAN BAR
ASSOCIATION, Model Rules of Professional Conduct, Rule 1.4, Communication. Here,
there is no indication that Colburn’s trial attorney effectively communicated any
strategies to Colburn, or that Colburn had even expressed his objectives.
241
AIUSA, James Colburn, supra note 223, at 4-5.
242
Id. at 5.
243
Id. The judge reportedly responded that issues of parole were not the jury’s
concern. Id.
244
Id.
245
See IJP, James Colburn, supra note 218.
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exposed himself to the death penalty when there were, and still
remain, questions about his guilt.
Like Patterson and Colburn before him, Charles Walker
has been diagnosed with severe mental illness. Initially
diagnosed with schizophrenia during childhood, he was later
evaluated during his prosecution as having bipolar disorder
with psychotic features.246 In 1995, he was convicted of the first
degree murder of Tito Davidson.247 In December of 2004, he
received a stay of execution pending further examination of
claims that he is constitutionally ineligible for the death
penalty and may in fact be innocent.248
A glimpse of Walker’s background reveals an extensive
history of mental illness compounded by extreme childhood
abuse. Walker was born in Brooklyn, New York in 1965, to a
“mentally unstable” father and a mother addicted to alcohol
and cocaine.249 At age two, his father left and his mother
remarried an abusive man who later shot and stabbed her.250
His mother is said to have punished Walker repeatedly,
including whipping him with electrical cords and a dog leash,
denying him food, and burning his penis with an iron.251 Walker
was first diagnosed with paranoid schizophrenia at age ten
when he received inpatient psychiatric treatment due to his
bizarre and violent behavior, paranoia, auditory hallucinations,
246
See INTERNATIONAL JUSTICE PROJECT, Mental Illness: Charles Walker, at
http://www.internationaljusticeproject.org/illnessCWalker.cfm (last visited Jan. 29,
2005) [hereinafter IJP, Charles Walker]. “People with bipolar disorder who have these
symptoms are sometimes incorrectly diagnosed as having schizophrenia.” NIMH,
Bipolar Disorder, supra note 187. The mental health expert who examined Walker
most recently found him to be “understandably depressed and anxious” and that his
mental condition was currently in “remission.” State’s Answer to Defendant’s Motion
for Appropriate Relief and Application for Stay at 27, State v. Walker, 469 S.E.2d 919
(4th Cir. 1996), cert. denied, 519 U.S. 901 (1996) (Nos. 92CR 520762, 70920). The
finding that Walker’s symptoms appear to be “in remission” is consistent with the
general course of a severe mental disorder, which may include periods of exacerbation
and remission. See supra notes 118 and 134.
247
See Motion for Appropriate Relief with Application for Stay of Execution
at 1, Walker (Nos. 92CR 520762, 70920) [hereinafter MAR] (on file with author).
248
Order Regarding Claims I and VI at 5, Walker (Nos. 92CRS 20762, 70920)
(on file with author).
249
MAR, supra note 247, at 8, 20.
250
Id. at 9. Walker’s cousin reports that Walker witnessed his mother’s
boyfriend stab her, possibly describing the same incident. Id. at 20. Walker’s mother
survived the attack and died in 1994 of acute and chronic cocaine intoxication. Id.
251
See IJP, Charles Walker, supra note 246. See also AIUSA, Urgent Action,
Charles Anthony Walker, at http://web.amnesty.org/library/Index/ENGAMR511652004?
open&of=ENG-USA (last visited Jan. 29, 2005) [hereinafter AIUSA, Charles Anthony
Walker]; MAR, supra note 247, at 9, 20, 21-22.
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and incoherent thought processes.252 His second hospitalization
in 1976 at age eleven lasted about four months.253
Accounts of his conduct during adolescence coincide
with a diagnosis of schizophrenia.254 By age twelve, he lived on
the streets of New York City.255 When in school, he attended a
special education program, but his attendance was at best
sporadic.256 At seventeen years old, Walker went to prison for
shooting a man he claimed had been following him around to
hurt him.257 He did not receive treatment during the
approximately six years of his incarceration.258 Less than two
years after his release, Walker’s parole was revoked and he
returned to prison for another year until his release in 1991
when he was twenty-five years old.259 On August 11, 1992, Tito
Davidson, the young man Walker is alleged to have murdered,
disappeared in Greensboro, North Carolina.260
The
circumstances
surrounding
Davidson’s
disappearance are vague. On August 13, 1992, an anonymous
informant relayed to police that a body had been placed in the
dumpster of a particular apartment.261 Police searched through
the trash, and, finding nothing, looked through tons of landfill
refuse as well, without finding a body.262 The statements of
Antonio Wrenn, a suspect in an unrelated shooting, eventually
led authorities to six other alleged participants in Davidson’s
suspected murder: Rahshar Darden; Pamela Haizlip; Jesse
Thompson; Sabrina Wilson; Nickie Summers; and Charles
Walker.263
As in the cases of Patterson and Colburn, the outcome of
the legal proceedings demonstrate that Walker, as a person
with a severe mental disorder, was enormously disadvantaged.
Walker’s co-participants, Darden, Thompson, Wrenn, and
Haizlip each had the wherewithal to accept plea arrangements,
while Wilson and Summers cooperated with the State in
252
IJP, Charles Walker, supra note 246. MAR, supra note 247, at 9.
MAR, supra note 247, at 9.
254
IJP, Charles Walker, supra note 246. See also AIUSA, Charles Anthony
Walker, supra note 251.
255
AIUSA, Charles Anthony Walker, supra note 251.
256
MAR, supra note 247, at 20-21.
257
Id. At 9-10. Walker had been living in an abandoned building at the time.
AIUSA, Charles Anthony Walker, supra note 251.
258
AIUSA, Charles Anthony Walker, supra note 251.
259
Id.
260
MAR, supra note 247, at 2.
261
AIUSA, Charles Anthony Walker, supra note 251.
262
Id.
263
Id. See also MAR, supra note 247, at 2-3.
253
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providing testimony and were never charged.264 Walker, on the
other hand, described by the psychiatrist who evaluated him
during this period as paranoid that the defense counsel was
assisting the prosecution,265 refused the state’s offer of a seconddegree murder plea.266 Dr. Billy Royal noted Walker to be not
only “extremely paranoid,” but also “highly grandiose [with]
profound difficulties in distinguishing fantasy from reality.”267
Just as Patterson and Colburn had been found competent to
stand trial, Dr. Royal found Walker to be legally competent.268
Yet Dr. Royal qualified his evaluation with the following
statement:
Mr. Walker throughout the interviews had an inability to deal with
the reality of what was going on in terms of his legal status, trial,
options that he had. There was a consistent view of himself that was
different from what the facts of life showed, in terms of his behaviour
[sic] and functioning. He was never able to come to grips or deal
adequately in a major way with his attorneys, or with myself, or
with other persons who tried to deal with him in terms of his legal
status, the evidence that appeared to be related to his crime or what
his potential was for the future.269
Walker’s decision converted the proceedings into a
capital case. Although the state of North Carolina now allows
264
MAR, supra note 247, at 2-3. Haizlip admitted proximity and pled to
accessory to murder with time served in exchange for testimony. Id. at 3. Darden
admitted shooting Davidson in the chest four times and once between the eyes. He
served a total of six years for murder 2. Wrenn pled to accessory to murder 1 and
served seven years. Id. Thompson admitted slashing Davidson’s throat and bragged
about firing the shot that killed him. He pled to murder 2 and received a life sentence.
He is now eligible for parole. Id. See IJP, Charles Walker, supra note 246. See also
Danica Coto, Inmate on Death Row Spared in Final Hours, CHARLOTTE OBSERVER, Dec.
3, 2004, at 1A; AIUSA, Charles Anthony Walker, supra note 251; Lisa Hoppenjans,
Judge Stays Friday’s Execution of a Greensboro Man, WINSTON SALEM J., Nov. 30,
2004, at B1.
265
See IJP, Charles Walker, supra note 246; MAR, supra note 247, at 21.
266
See IJP, Charles Walker, supra note 246. Forensic psychiatrist Dr.
Seymour Halleck made a thorough review of this case, including school and prison
records, and interviewed Walker in person. Dr. Halleck expressed particular concern
about “the severe limitation upon Walker’s ability to cooperate with his trial attorneys
due to his paranoid belief that they were helping the prosecutor.” MAR, supra note 247,
at 21.
267
IJP, Charles Walker, supra note 246. It should be noted that although Dr.
Royal interviewed Walker and his family and reviewed certain records, the psychiatrist
was impeached because he had not reviewed Walker’s school or prison records and he
was unaware of Walker’s extreme childhood abuse history. MAR, supra note 247, at 1011, 21. However, Dr. Royal had first-hand knowledge of Walker’s behavior during the
legal proceedings and it is for this reason that Dr. Royal’s perceptions of Walker at that
time are included.
268
Id.
269
Id.
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1035
for prosecutorial discretion in trying a defendant capitally for
first degree murder when an aggravating circumstance is
present, this option did not exist until 2001.270 Due to the
especially cruel nature of the murder allegations and because
Walker had a prior violent felony conviction, the state had no
recourse at that time but to seek the death penalty for
Walker.271 Without adequate consultation with defense counsel
and by his own impaired judgment, Walker had placed his life
at stake.
The trial contained a number of weaknesses that
Walker might have been able to challenge if he had been free of
severe mental illness. The prosecution relied solely on the
uncorroborated testimony of co-participants who had reached
plea agreements with the State. There was no physical
evidence linking Walker to the crime.272 The testimony provided
by the participants contained numerous inconsistencies.273
Additionally, because Walker refused to provide information
about his history of mental illness and severe childhood abuse
to Dr. Royal,274 the jury did not hear all relevant mitigating
evidence.275
The magnitude and complexity of a capital trial under
“ideal” circumstances would seem to require that a defendant,
at a minimum, collaborate with defense counsel. Walker’s
apparent paranoia towards his own attorneys can be
analogized to the lapse in procedural protections that could
occur due to the mental retardation of a defendant, which
caused the Court significant concern in Atkins.276 Being at
extreme odds with defense counsel undoubtedly decreases the
communication between attorney and defendant. In Walker’s
270
State v. Ward, 555 S.E.2d 251, 260 (N.C. 2001).
AIUSA, Charles Anthony Walker, supra note 251, at 1. See also N.C. GEN.
STAT. § 15A-2000(a)(1) (2004).
272
MAR, supra note 247, at 12-15.
273
Darden testified that Walker had hit Davidson on the knee with a
hammer, but Haizlip testified that it was Thompson who had hit Davidson with the
hammer. Id. at 6. Darden also testified that Walker had fired the fatal shot at
Davidson’s neck, but this testimony was contradicted by accounts that Thompson had
bragged about fatally shooting Davidson in the chest. Id. at 16.
274
Id. at 30.
275
Review of an Amnesty International report and State v. Walker, suggests
that Walker’s relatives came forth sometime after his conviction to provide further
illumination of his background. 469 S.E.2d 919 (N.C. 1996); AIUSA, Charles Anthony
Walker, supra note 251. The additional information referred to has been brought up on
appeal. MAR, supra note 247, at 19-22. Walker was able to share details about his past
with Dr. Seymour Halleck, the psychiatrist who examined him most recently. Id. at 21.
276
Atkins v. Virginia, 536 U.S. 304, 317 (2002).
271
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case, at the least his mitigation evidence could have been more
thoroughly developed in a timely manner. The combined effect
of Walker’s compromised mental state, the nature of the
testimony presented at trial, and the deficient mitigation
evidence possibly jeopardized the fairness of his proceedings.
Although the jury acquitted Walker of delivering the
fatal gunshot wound, the jurors recommended a sentence of
death after four days of deliberations.277 Based on the testimony
of witnesses, albeit uncorroborated, the jury found that Walker
had “acted in concert with others with the intent to kill
Davidson.”278 Again the issue of future dangerousness appears
to have played a key role in the sentencing. The jury
recommended the death penalty despite finding that Walker
had been mentally or emotionally disturbed at the time of the
crime and that his disturbances were caused by childhood
trauma and mental illness.279 The jurors considered the
possibility that Walker would be paroled under a life sentence
influential to their decision.280 Two jurors suggested that they
would have found the additional mitigating evidence brought
up on appeal to be significant.281 Further, some of the jurors
later expressed that life without parole was the appropriate
sentence for Walker, but it had not been available at that
time.282 Not only did Walker’s rejection of a plea agreement turn
the proceedings into a capital case, but his failure to cooperate
with defense counsel may have prevented the jury’s access to
the complete mitigation evidence, evidence which had the
potential to outweigh concerns about future dangerousness.
277
AIUSA, Charles Anthony Walker, supra note 251. This recommendation
was controversial, because no person has ever been executed in North Carolina in a
case in which the body was never found. See Estes Thompson, Condemned Man’s
Lawyers Say Case Lacks Evidence: Inmate to Be Executed for Slaying in Which Body
Was Never Found, CHARLOTTE OBSERVER, Nov. 30, 2004, at 3B.
278
MAR, supra note 247, at 11.
279
State v. Walker, 469 S.E.2d at 924 (N.C. 1996).
280
North Carolina adopted a life without parole option in October of 1994
which did not apply retrospectively. For offenses occurring prior to that date, a
sentencer had to choose between death or life imprisonment with the possibility of
parole after twenty years. See N.C. GEN. STAT. § 15A-2002(a) (2004). See also MAR,
supra note 247, at 24.
281
One specifically stated that she would not have voted for the death penalty.
See MAR, supra note 247, at 22. The mitigating evidence described in State v. Walker,
while in itself troubling, does not convey the full breadth of Walker’s history of
psychiatric illness or trauma and thus suggests that the jury could not have had a full
appreciation for the severity of the abuse or mental illness experienced by Walker. Id.
at 19-22.
282
Id. at 24.
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Patterson and Colburn’s lives were marked, and
Walker’s life has been marked, by a history of psychiatric
symptoms, sporadic, reactive attempts to treat them, and
coinciding maladaptation to normal life activities. While their
intelligence levels may not have been subaverage, their severe
mental disorders rendered them both less culpable and more
vulnerable during legal proceedings. These same attributes
were sufficient to convince the Supreme Court to
constitutionalize the consensus that defendants with mental
retardation should not be executed. Although jurors appeared
to recognize that Patterson, Colburn, and Walker suffered from
severe mental disorders, the defendants’ illnesses were not
considered as mitigating factors. The sentencers in Patterson
and Colburn’s cases ultimately chose to view the mental
disorders as aggravators, and in Walker’s case this vital
information was simply unavailable. But as discussed above, a
complete picture of the impact of severe mental illness on the
individual reveals that execution was and is a disproportionate
punishment for each of these three defendants.
VI.
TENNARD V. DRETKE, SEVERE MENTAL ILLNESS AS AN
AGGRAVATOR, AND THE IMPLICATIONS OF EXTENDING
ATKINS TO DEFENDANTS WITH SEVERE MENTAL ILLNESS
A.
Tennard v. Dretke283
If severe mental illness is accepted as comparable to
mental retardation in its impact on the individual, it must also
have comparable mitigating effect. As explained in Tennard,
the mitigating effect of mental retardation under Atkins is
broad.
Tennard involved a man described as “gullible” with an
I.Q. of 67 who was convicted of capital murder in Texas.284
Tennard had sought postconviction relief, claiming that the
jury instructions did not allow the sentencer to give mitigating
effect to Tennard’s low I.Q. and gullibility.285 After Tennard lost
his appeals in the lower courts, the Fifth Circuit held that he
was not entitled to a certificate of appealability because his I.Q.
score did not establish mental retardation, and that even if it
283
284
285
124 S. Ct. 2562 (2004).
Id. at 2565-66.
Id. at 2566-67.
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did, “[Tennard] did not show that the crime he committed was
attributable to his low I.Q.”286
The Supreme Court rejected the Fifth Circuit’s
requirement that a nexus exist between low I.Q. and the
capital crime in order to consider mental retardation as a
mitigator.287 In the Court’s holding, Justice O’Connor clarified
that “[i]mpaired intellectual functioning has mitigating
dimension beyond the impact it has on the individual’s ability
to act deliberately.”288 Indeed, Atkins had explained that
“impaired intellectual functioning is inherently mitigating.”289
Likewise, just as the issue in the case of a defendant with
mental retardation would not be whether that defendant’s low
I.Q. caused the crime, the issue in the case of a person with
severe mental illness would not be limited to whether that
person was actively psychotic at the time the capital crime was
committed. In this respect, any concerns about a lack of nexus
between a severe mental disorder and the crime would be
entirely at odds with the Tennard holding.290 “The question is
286
Id. at 2568.
Id. at 2570.
288
Tennard, 124 S. Ct. at 2572 (emphasis added).
289
Id. at 2571.
290
The American Psychiatric Association (APA) appears to erroneously raise a
parallel concern in a statement advocating the exclusion of defendants with severe
mental illness from capital punishment. Although the APA states that “[T]he core
rationale for precluding death sentences for defendants with mental retardation is
equally applicable to defendants with severe mental illness,” the APA retreats from
this position. The APA proposes modifying the language of the Model Penal Code to
include prohibiting the execution of defendants if, at the time of the offense, they had a
“severe mental disorder” that “significantly impaired” their capacity “to exercise
rational judgment in relation to their conduct.” In doing so, the APA uses legal
provisions to narrow a medical classification of mental disorders. AMERICAN
PSYCHIATRIC ASSOCIATION, Position Statement, Diminished Responsibility in Capital
Sentencing, Nov. 2004. By tying the definition of severe mental disorders to the
insanity defense, the APA clearly does not incorporate the substance of Tennard into
its suggested changes. The APA bases its proposed changes on its concern that “[E]ven
among persons with major mental disorders, such as schizophrenia, symptoms vary
widely in severity, as does the impact of the disorder on the person’s behavior.” Id. Yet
among persons with mental retardation, the level of impairment of intelligence also
varies widely, so much so that the APA has divided the levels into four categories, in
addition to a general category where mental retardation is strongly presumed, but the
person’s intelligence is not testable. DSM-IV, supra note 53, at 40. The limitations in
adaptive skills, too, vary widely among individuals with mental retardation. Indeed, in
their definitions of mental retardation, both the AAMR and APA require limitiations in
as few as two areas of adaptive skills which include: communication, self-care, home
living, and social skills. See DSM-IV, supra note 53, at 46. See also AAMR, supra note
52. Despite this variation, the Atkins Court did not deem it necessary to narrow the
category of individuals with mental retardation, where this condition reduces their
moral culpaibility in general. See supra text accompanying note 56. In light of the
argument that a death sentence would essentially be disproportionate to the
culpability of the offender with severe mental illness for the reasons set forth in this
287
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simply whether the evidence is of such a character that it
‘might serve as a basis for a sentence less than death.’”291
By clarifying the expansive role mental retardation
plays in mitigation, the Court in Tennard acknowledged and
cautioned against the tendency to give a low IQ aggravating
effect in considering future dangerousness, but to dismiss
mental retardation as irrelevant in mitigation.292 As described
above, this problematic interpretation occurs frequently in
cases of severely mentally ill defendants, in which the
prosecutor is all too ready to instill jurors with a sense that the
defendant before them is dangerous and will kill again, thereby
urging them to disregard the mitigating effects of the mental
disorder and recommend a sentence of death.293
B.
Severe Mental Illness as an Aggravator
The factfinder’s tendency to consider severe mental
illness an aggravator is aptly illustrated by the sentencing of
Patterson and Colburn. The Texas capital sentencing scheme
gained much attention after Penry for its cumbersome jury
instructions, which even after revision remain confusing, and
the statute continues to raise controversy for its lack of a life
without parole option.294 In a discussion addressing this issue,
Amnesty International, a human rights organization, notes:
Even today, there is public fear and ignorance around the subject of
mental illness. Under the Texas capital sentencing scheme, even if
the defence [sic] attorneys put on a persuasive case that their client’s
mental illness demands compassion, it may not be enough to
overcome jurors’ fears of the individual in front of them, whom they
have just convicted of a violent crime . . . a prosecutor’s bid for a
death sentence may lead such officials to play on juror fears and
make a death sentence more likely under Texas’s capital sentencing
scheme.295
A defendant like Kelsey Patterson with an unequivocal
history of violent behavior would arouse understandable
Note, the Court, and certainly the APA, should not narrow the category of capital
defendants with severe mental illness by requiring a nexus between the defendants’
severe mental illness and the capital crime or the capacity to commit it.
291
Tennard, 124 S. Ct. at 2571 (internal citations omitted).
292
Id. at 2572.
293
See AIUSA, Another Texas Injustice, supra note 1, at 11-12. See also
Tennard, 124 S. Ct. at 2572-73.
294
TEX. CRIM. PROC. CODE ANN. § 37.071(2)(e)(2)(B), supra note 212
(describing procedure in a capital case).
295
AIUSA, James Colburn, supra note 223, at 5.
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concerns for the jury. However, the circumstances surrounding
the sentencing of James Colburn make it clear that at least
some jurors feel a compassion for defendants with severe
mental illness that conflicts with their desire to prevent harm
to society. These jurors must be given a “vehicle for expressing
[their] ‘reasoned moral response’ to that [mitigating] evidence
in rendering its sentencing decision.”296 The function of
mitigation provisions in state death penalty statutes otherwise
becomes meaningless when the factfinder is not able to
acknowledge the qualities of a defendant that reduce
culpability. Furthermore, to disregard a defendant’s severe
mental disorder is to treat that defendant as an average
murderer and neglect to make a distinction between offenders
who are more deserving of capital punishment than others.297
C.
The Implications of Extending Atkins to Defendants with
Severe Mental Illness
A categorical exclusion of the severely mentally ill
would put to rest apprehensions about executing individuals
whose mitigating circumstances make them less culpable than
the average murderer. Still, such an exclusion may be difficult
for lay persons and the legal community to embrace, in part
because it opens up the probability that psychiatry (i.e. the
medical profession) will have a greater hand in determining
who can be disqualified from a death sentence.298 Whereas
defendants with schizophrenia, schizoaffective disorder or
bipolar disorder who failed to successfully plead insanity were
previously executed, under the proposed exemption they would
no longer be eligible for the death penalty as individuals
diagnosed as suffering from severe mental disorders. As in the
296
Penry v. Lynaugh, 492 U.S. 302, 328 (1989) (quoting Franklin v. Lynaugh,
487 U.S. 164, 184 (1988)).
297
Berkman, supra note 65, at 293.
298
Concerns of inconsistency of diagnoses by physicians should be quashed. It
is the similar presentation of the individuals with schizophrenia, schizoaffective
disorder and bipolar disorder in terms of symptoms, behavioral deficits, and
disadvantages in criminal proceedings that substantively matter, not the names of
their conditions. Because these severe mental illnesses share common traits that make
it difficult to differentiate between the disorders, it is not unusual for physicians,
mental health professionals, and researchers to discuss them in tandem. See DSM-IV,
supra note 53, at 283-84; NIMH, Bipolar Disorder, supra note 187, at 4; NMHA,
Schizoaffective Disorder, supra note 187; Benabarre, supra note 114; Martin Harrow et
al., Ten-Year Outcome: Patients with Schizoaffective Disorders, Schizophrenia, Affective
Disorders and Mood-Incongruent Psychotic Symptoms, 177 BRIT. J. PSYCHIATRY 421
(2000).
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Atkins case and Ford v. Wainwright before it, each State must
develop “appropriate ways” to carry out this categorical
exclusion,299 particularly when the prosecution disputes that a
defendant is severely mentally ill. When a person is diagnosed
with a severe mental disorder after sentencing, that death
sentence would thereafter be commuted in order to comply with
the Eighth Amendment. Additionally, in order to ensure due
process and avert wrongful execution, the issue of mandatory
evaluation might be raised where defendants suspected to have
mental health issues refuse psychiatric examination.300
The Atkins court did not express concern that a
categorical exclusion of people with mental retardation from
the death penalty would increase the number of capital
offenses committed by that population, nor should this worry
exist with respect to individuals with a severe mental disorder.
Persons with severe mental disorders comprise a very small
portion of society to begin with and the prevalence of violence
associated with them is modest.301 Moreover, an exemption
would not exculpate the severely mentally ill from punishment
for serious crimes they in fact perpetrate. Rather, such an
exemption would recognize that the experiences of persons
afflicted with a severe mental disorder in developing a chronic
illness over time and dealing with its impact emotionally,
socially and in the courtroom, are accompanied by
vulnerabilities that may be unfathomable to the ordinary
person.
Creating a categorical exclusion of the severely mentally
ill from the death penalty requires offering alternative
sentences that adhere to the Eighth Amendment’s proscription
299
Atkins v. Virginia, 536 U.S. 304, 317 (2002).
The desire to protect client autonomy at times conflicts with the criminal
defense attorney’s role of providing effective representation. For a framework with
which to address this dilemma, see Christopher Slobogin, The Criminal Defense
Lawyer’s Fiduciary Duty to Clients with Mental Disability, 68 FORDHAM L. REV. 1581
(1999).
301
Mental retardation affects between 1.5% to 2.5% of the population. AAMR,
Fact Sheet: The Death Penalty, at http://www.aamr.org/Policies/faq_death_penalty.shtml
(last visited Feb. 1, 2005). Approximately 1.2% of American adults develop
schizophrenia. This estimate may also include those persons with schizoaffective
disorder. William E. Narrow et al., Revised Prevalence Estimates of Mental Disorders in
the United States, 59 ARCH. GEN PSYCHIATRY, 115, 121, Table 4 (Feb. 2002). Bipolar
disorder affects roughly 1.2% of the population. NAMI, Bipolar Disorder, at
http://www.nami.org/Template.cfm?Section=By_Illness&template=/
ContentManagement/ContentDisplay.cfm&ContentID=10442 (last visited Feb. 1,
2005). See also Elizabeth Walsh et al., Violence and Schizophrenia: Examining the
Evidence, 180 BRIT. J. PSYCHIATRY 490 (June 2002).
300
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against cruel and unusual punishment. There will be instances
when a life sentence without parole may be appropriate, but
effort should be made to explore institutionalization in a
psychiatric setting where a defendant who is diagnosed with
chronic schizophrenia, schizoaffective disorder or bipolar
disorder may receive sufficient, ongoing treatment. More
importantly, given that the larger societal concern appears to
be the fear of future dangerousness, policymakers within the
criminal justice system should combine their efforts with
mental health experts to work towards violence prevention in
identified high-risk individuals.
Based on the literature,302 resources should be
concentrated on increasing treatment compliance, reducing
substance abuse, and working with health care bodies such as
managed care companies to ensure adequate length of
inpatient psychiatric stays, or comprehensive outpatient
programs. A monitoring program should be required for any
severely mentally ill person with a known history of violent
behavior who refuses treatment, particularly if that person has
a co-existing substance abuse disorder. The potential benefits
of tracking these patients, perhaps through daily, face-to-face
contact with case managers, should outweigh any disquiet over
expenses incurred to supervise individuals who might not
currently appear in need of care. The cornerstone of
implementing these improvements would lie in educating the
public about mental illness and the need for a comprehensive
mental health system that addresses all facets of the afflicted
individual’s life, not simply treatment. Lawmakers should be
urged to invest in preventive measures rather than merely
fund the expansion of the penal system.
VII.
CONCLUSION
The concept of “evolving standards of decency” suggests
a movement towards a more sensitive and informed morality
that analyzes the developmental, functional, and cognitive
makeup of offenders when assessing culpability. Indeed, in an
opinion that echoed the Atkins rationale, the Supreme Court
recently determined that the death penalty is disproportionate
punishment for juveniles.303 Although current legislation and
case law may suggest that American society is not yet at the
302
303
See supra text accompanying note 158.
Roper v. Simmons, 125 S.Ct. 1183 (2005).
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APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS
1043
same point that the Supreme Court found it to be when it
decided Atkins in favor of individuals with mental retardation,
existing statutory provisions, the views of justices and religious
communities, national polls, and official statements by
professional bodies indicate that at least a significant segment
of the American public agrees with the widely held
international belief that people with severe mental disorders
should be spared from capital punishment.
It may be that society’s moral compass will someday
mature in a way that execution of the severely mentally ill will
be deemed unconstitutional. This maturity is likely to be
bolstered by a conscious effort to create an informed citizenry,
legislature, and criminal justice system which address and
incorporate the realities of mental illness into their decisionmaking, rather than shun the lessons of medical and mental
health professionals. In the interim, Justice Stevens’ opinion in
Atkins serves as a highly applicable rationale for courts to
consider in capital sentencing proceedings for defendants with
severe mental disorders.
Laurie T. Izutsu†
†
J.D. Candidate, 2005, Brooklyn Law School; M.S.W., 1996, University of
Washington. I would like to thank Professor Ursula Bentele for her unfailing guidance
and inspiration. Many thanks also to Jason Cade for his insightful editing and to the
diligent Brooklyn Law Review staff.
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Spoliation of Evidence
PROPOSALS FOR NEW YORK STATE
*
The destruction of evidence, commonly known as
spoliation, has become an increasing problem in civil litigation
today.1 Commentators have noted that “we live in an era of
spoliation”2
and
that
“deliberate
obstructionism
is
commonplace.”3 One study indicates that approximately onehalf of litigators consider spoliation a frequent or regular
occurrence.4 Another study points to actual incentives to alter
evidence pending trial.5 Spoliation has also been at the center
of recent, well-publicized criminal cases involving Martha
Stewart6 and Arthur Andersen.7 While the manner of
*
© 2005 James T. Killelea. All Rights Reserved.
MARGARET M. KOESEL, DAVID A. BELL & TRACEY L. TURNBULL, SPOLIATION
OF EVIDENCE: SANCTIONS AND REMEDIES FOR DESTRUCTION OF EVIDENCE IN CIVIL
LITIGATION xi (2000) (characterizing spoliation as an “unfortunate reality of modernday civil litigation”).
2
Gregory P. Joseph, Rule Traps, LITIG. A.B.A, Vol. 30, No.1, at 9 (Fall 2003)
(noting that “parties long not so much for documentary evidence as for evidence that
documents have been destroyed”).
3
Edward J. Imwinkelried, A New Antidote for an Opponent’s Pretrial
Discovery Misconduct: Treating the Misconduct at Trial as an Admission by Conduct of
the Weakness of the Opponent’s Case, 1993 BYU L. Rev. 793, 794 (1993).
4
Terry R. Spencer, Do Not Fold Spindle or Mutilate: The Trend Towards the
Recognition of Spoliation as a Separate Tort, 30 IDAHO L. REV. 37, 39 (1993).
5
Charles R. Nesson, Incentives to Spoliate Evidence in Civil Litigation: The
Need for Vigorous Judicial Action, 13 CARDOZO L. REV. 793, 795 (1991) (claiming that
much incentive to spoliate exists because spoliation is unlikely to be discovered).
6
Martha Stewart was found guilty of conspiracy, obstruction of justice and
two counts of making false statements over the sale of 4,000 shares of ImClone
Systems stock. See Martha Stewart Found Guilty on all Counts, March 6, 2004,
available at http://www.cnn.com/2004/LAW/03/05/ stewart.main/ (last visited Feb. 21,
2005). The obstruction charge included the “altering of evidence” involving allegedly
altered phone logs and notes to which Ms. Stewart had access. See Constance L. Hays,
1
1045
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spoliation—from deleting e-mails to shredding documents—
may differ, its effect on the underlying case is the same: loss of
evidence prevents a party from adequately proving or
defending a claim at trial.8 Furthermore, destruction of
evidence violates the spirit of liberal discovery, offends notions
of fair play, and generally undermines the efficacy of the
adversarial system.9
In response to spoliation, courts have developed an
array of remedies against the spoliator including sanctions,
adverse inference instructions, criminal penalties and even a
separate tort of spoliation.10 However, the use of such remedies
varies widely across jurisdictions,11 causing a variety of
problems as courts fail to agree on choice-of-law principles
when spoliation issues emerge.12
Two particular problems have developed with the New
York courts’ approach to remedying spoliation. First, New York
courts employ the remedy of the adverse inference instruction
with little, if any, regard to its potentially drastic effects. The
instruction, which asks a jury to view the destroyed evidence as
inherently adverse to the spoliator’s case, is apt to produce
unduly harsh consequences, especially when the spoliator is
Prosecutor Says Martha Stewart Spun Web of Lies About Shares, N.Y. TIMES, Jan. 28,
2004, at C1.
7
The accounting firm Arthur Andersen, LLP was convicted for criminal
obstruction of justice under the United States Code (U.S.C.). Andersen was found
guilty of destroying accounting documents (paper and electronic) pertaining to its
troubled client, the Enron Corporation. At the time the documents were destroyed,
Andersen was aware that the Securities and Exchange Commission was investigating
Enron. See generally John Chase, To Shred or Not to Shred: Document Retention
Policies and Federal Obstruction of Justice Statutes, 8 FORDHAM J. CORP. & FIN. L. 721
(2003).
8
See Spencer, supra note 4, at 38.
9
Randi D. Bandman & Jay M. Du Nesme, Recent Developments in the Area
of Spoliation of Evidence, SCO1 A.L.I.-A.B.A. CONTINUING LEGAL EDUC. 463, 465 (July
1997) (describing how “destruction of evidence undermines the integrity of the legal
system, a system that was designed to promote a society that expects that its citizens
will take responsibility for and own up to their actions.”).
10
Jeffrey S. Kinsler & Anne R. Keyes MacIver, Demystifying Spoliation of
Evidence, 34 TORT & INS. L.J. 761, 774-75 (1999). See discussion infra Part III.
11
David A. Bell, Margaret M. Koesel & Tracey L. Turnbull, Let’s Level the
Playing Field: A New Proposal for Spoliation of Evidence Claims in Pending Litigation,
29 ARIZ. ST. L.J. 769, 791 (1997) (“Thus far, judicial treatment of spoliation claims
arising in the context of pending litigation has been inconsistent.”).
12
CHARLES T. MCCORMICK ET AL., MCCORMICK ON EVIDENCE § 265, at 193-94
(John W. Strong ed., 4th ed. 1992) [hereinafter MCCORMICK] (“This area of the law
appears to be in the process of rather rapid change, although the patterns of the new
order are not yet entirely clear.”).
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SPOLIATION OF EVIDENCE
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merely negligent.13 For example, a jury may find against a
spoliator merely because he altered evidence and not because
he was liable in the underlying suit. A Southern District of
New York court noted that the “adverse inference instruction
often ends litigation—it is too difficult a hurdle for the spoliator
to overcome.”14 Until New York state courts recognize this
hurdle, they risk unjustly penalizing spoliation parties.
Second, New York does not recognize a separate tort for
spoliation by first parties15 and has recognized the tort by third
parties in only a handful of cases.16 In defense of this position,
the state courts believe that the traditional remedies are
adequate in addressing the destruction of evidence.17 While this
may hold true for first-party spoliation, it does not for thirdparty spoliation. Because third-party spoliators are not
recognized by the court as parties to a lawsuit, they are beyond
13
See Mary Kay Brown & Paul D. Weiner, Digital Dangers: A Primer on
Electronic Evidence in the Wake of Enron, 74 PA. B.A.Q. 1, 7 (Jan. 2003) (listing “severe
sanctions, such as adverse inference instructions” imposed by courts when “relevant
electronic evidence was not preserved, or was intentionally destroyed”).
14
See Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 219 (S.D.N.Y. 2003)
(remarking that the adverse inference instruction has an “in terrorem” effect and is an
extreme sanction and should not be given lightly).
15
Spoliation by an opposing party to an actual or potential lawsuit is known
as “first-party” spoliation, while spoliation by a nonparty, (i.e., stranger to the lawsuit)
is referred to as “third-party” spoliation. See generally Fairclough v. Hugo, 616
N.Y.S.2d 944 (App. Div. 1994) (refusing to recognize an independent cause of action for
first-party spoliation where plaintiffs failed to establish that the alleged failure to
preserve evidence would make it extremely difficult or impossible for the plaintiffs to
establish their claim for malpractice); Pharr v. Cortese, 559 N.Y.S.2d 780, 782 (Sup. Ct.
1990) (declining to create a first-party spoliation tort in medical malpractice case
unless duty to preserve evidence exists).
16
Most such cases are limited to instances where an employee sues his
employer for spoliation of evidence and resulting impairment of the employee's claim
against a third-party tortfeasor. See, e.g., Ripepe v. Crown Equip. Corp., 741 N.Y.S.2d
64 (App. Div. 2002); Curran v. Auto Lab Serv. Ctr., 721 N.Y.S.2d 662 (App. Div 2001);
DiDomenico v. C & S Aeromatik Supplies, 682 N.Y.S.2d 452 (App. Div. 1998); Vaughn
v. City of New York, 607 N.Y.S.2d 726 (App. Div. 1994). But see Weigl v. Quincy
Specialties Co., 601 N.Y.S.2d 774, 776 (App. Div. 1993) (declining to recognize a tort of
third-party spoliation where university discarded lab coat in student’s suit against coat
manufacturer). See also discussion of Modified Recognition of Third-Party Spoliation
infra Part IV.C.
17
See, e.g., Simet v. Coleman Co., Inc. 778 N.Y.S.2d 367 (App. Div. 2004)
(rejecting cause of action for spoliation while noting that court has discretion to impose
sanctions for the destruction of evidence); Metlife Auto & Home v. Joe Basil Chevrolet,
Inc., 753 N.Y.S.2d 272, 282 (App. Div. 2002) (declining to recognize a cause of action for
spoliation of evidence and, instead, relying on “the comparative advantages of
remedying any injury through the imposition of carefully chosen and specifically
tailored sanctions within the context of the underlying action.”); Pharr, 559 N.Y.S.2d at
782 (noting that the traditional sanctions imposed on spolitors are adequate in
remedying victims of spoliation); Weigl, 601 N.Y.S.2d at 775.
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the reach of typical remedies available to such parties.18 New
York courts are thus unable to sanction third parties.19 In spite
of these policies, or perhaps because of them, many plaintiffs
continue to bring claims asking New York courts to recognize a
separate cause of action for spoliation. With few exceptions,
however, the courts continually refuse to recognize such a tort,20
and consequently New York risks allowing such parties to go
unpenalized when they destroy evidence.
Part I of this Note examines the basic elements of
spoliation and discusses when the duty to preserve evidence
arises and how courts determine whether spoliated evidence is
relevant to issues at trial. Part II considers the traditional
remedies employed against spoliation and their respective
shortcomings. This part will give special attention to the
adverse inference instruction, which is the most commonly
used remedy and indeed the most controversial, especially in
view of its potentially drastic effects on the litigating parties.
Part III chronicles the development of the spoliation tort and
analyzes the advantages and inherent problems in recognizing
it. Part IV surveys the status of the treatment of spoliation in
the New York court system, focusing on the state’s use of the
adverse inference instruction as well as its refusal to adopt the
separate tort of spoliation. Finally, in light of emerging trends
in combating spoliation, Part V suggests that New York should
utilize the adverse inference instruction more cautiously and
recognize a separate tort for third-party spoliation.
I.
ELEMENTS OF SPOLIATION
Spoliation is “[t]he intentional destruction of evidence . .
. or the significant and meaningful alteration of a document or
18
See Jonathan Judge, Reconsidering Spoliation: Common-Sense Alternatives
to the Spoliation Tort, 2001 WIS. L. REV. 441, 442. See also Elias v. Lancaster Gen
Hosp., 710 A.2d 65, 67-68 (Pa. Super. 1998) (stating that “traditional remedies would
be unavailing, since the spoliator is not a party to the underlying litigation.”).
19
MetLife Auto & Home, 753 N.Y.S.2d at 276 (App. Div. 2002) (declining to
recognize a duty to preserve evidence as a basis for imposing tort liability for a
negligent or reckless act of spoliation committed by a third party to the underlying
claim where third party made voluntary promise and undertaking to do so). See infra
note 225 and accompanying text.
20
See, e.g., Fairclough v. Hugo, 616, N.Y.S.2d 944 (App. Div. 1994) (referring
to the Pharr decision, rejecting on the facts an independent claim for intentional
spoliation of evidence by a third party (other than by an employer)); Steinman v.
Barclays Bank, 715 N.Y.S.2d 841 (App. Div. 2000) (rejecting on the facts an
independent claim for intentional spoliation of evidence by a third party); Weigl, 601
N.Y.S.2d at 776 (refusing to recognize cause of action for spoliation).
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SPOLIATION OF EVIDENCE
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instrument.”21 Because this definition is somewhat narrow and
may not, for example, include situations where documents have
been routinely discarded, many jurisdictions recognize a
broader definition to include the losing, discarding, or giving
away of evidence.22 New York, for example, broadly defines
spoliation as “the destruction or significant alteration of
evidence or the failure to preserve property for another’s use as
evidence in pending or reasonably foreseeable litigation.”23
Furthermore, though originally identified as the intentional
destruction of evidence, spoliation now includes negligent or
unintentional destruction of evidence.24 Jurisdictions, however,
are not in full agreement as to what constitutes spoliation.25
Some courts are more willing to find instances of spoliation
than others, representing a disagreement among courts as to
the relative importance of a victim’s right to be compensated
and the potential for unduly burdening the alleged spoliator.
Spoliation liability arises from a party’s duty to preserve
evidence.26 For example, the duty automatically emerges when
a party serves or is served with a judicial or administrative
complaint.27 In such a situation, the party has actual knowledge
21
BLACK’S LAW DICTIONARY 1401 (6th ed. 1990) (citation omitted). See also
John K. Stipancich, The Negligent Spoliation of Evidence: An Independent Tort Action
May Be the Only Acceptable Alternative, 53 OHIO STATE L.J. 1135 (1992) (defining
spoliation generally).
22
See Phoebe L. McGlynn, Spoliation in the Products Liability Context, 27 U.
MEM. L. REV. 663, 665 (1997).
23
West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999).
24
The Sixth Circuit has arguably adopted the broadest interpretation of
spoliation, stating that “destruction of potentially relevant evidence obviously occurs
along a continuum of fault ranging from innocence through the degrees of negligence to
intentionality.” See Shannon D. Hutchings, Tortious Liability for Spoliation of
Evidence, 24 AM. J. TRIAL ADVOC. 381, 382 (2000) (citing Welsh v. United States, 844
F.2d 1239, 1246 (6th Cir. 1988)).
25
For example, jurisdictions do not agree on whether “concealment” of
evidence constitutes spoliation. See, e.g., Green Leaf Nursery v. E.I. DuPont De
Nemours & Co., 341 F.3d 1292, 1308 (11th Cir. 2003) (concealment does not constitute
spoliation of evidence under Florida law); Nix v. Hoke, 139 F. Supp. 2d 125, 135
(D.D.C. 2001) (concealment and alteration are included in the definition of “willful
destruction of evidence” under Ohio law). This difference is most likely due to the fact
that concealed evidence has not been destroyed and may still be produced at trial. See
Steffen Nolte, The Spoliation Tort: An Approach to Underlying Principles, 26 ST.
MARY’S L. J. 351, 408 (1994).
26
KOESEL, BELL & TURNBULL, supra note 1, at 1.
27
See Scott v. I.B.M. Corp., 196 F.R.D. 233,248-49 (D.N.J. 2000) (noting that
a duty arises to preserve evidence whenever a party has been served with a complaint).
See also Margaret O. Frossard and Neal S. Gainsberg, Spoliation of Evidence in
Illinois: The Law After Boyd v. Traveler’s Insurance Co. [sic], 28 LOY. U. CHI. L.J. 685
(1997) (“[A] duty to preserve evidence may arise through an agreement, a contract, a
statute . . . or another special circumstance.”) (citing Boyd v. Travelers Ins. Co., 652
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that litigation has begun and is therefore bound to preserve all
discoverable evidence.28 A majority of courts have also held that
a duty exists as soon as it is “reasonably foreseeable” that a
lawsuit will ensue and that the evidence will be discoverable in
connection with that suit.29 A duty does not arise, then, if
litigation is “merely possible” as opposed to litigation that is
“likely to be commenced.”30 Furthermore, a duty to maintain
evidence may also be imposed by statute, regulation, or the
ethical duties of the profession.31 Finally, the duty may attach if
the party voluntarily assumes such a duty, as when a business
implements a formal document retention policy.32
The duty to preserve electronic evidence under a
document retention policy is particularly troubling in light of
increased reliance on computer data.33 Given the routine
destruction of information stored on computers in the ordinary
course of business pursuant to retention policies,34 it is difficult
N.E.2d 267, 270-71 (Ill. 1995)).
28
Scott, 196 F.R.D. at 249.
29
See Shamis v. Ambassador Factors Corp., 34 F. Supp. 2d 879, 888-89
(S.D.N.Y. 1999); Kronisch v. United States, 150 F.3d 112, 126-27 (2d Cir. 1998)
(destruction of records may be found by a jury to be in anticipation of litigation,
notwithstanding that no litigation, administrative action or congressional investigation
had commenced). Furthermore, the moving party does not need to prove that the actual
person who destroyed the evidence had notice of the litigation. See Testa v. Wal-Mart
Stores, Inc., 144 F.3d 173, 178 (1st Cir. 1998) (“The critical part of the foundation that
must be laid depends on institutional notice—the aggregate knowledge possessed by a
party and its agents, servants and employees.”).
30
Willard v. Caterpillar, Inc., 48 Cal. Rptr. 2d 607, 620-21 (Ct. App. 1995)
(Defendant manufacturer destroyed documents in the ordinary course of business
relating to a thirty-five-year-old product over which it had never been sued. Such
destruction did not constitute spoliation of evidence because, in the court’s view, the
mere possibility of future litigation was not enough.). Turner v. Hudson Transit Lines,
Inc., 142 F.R.D. 68, 73 (S.D.N.Y. 1991) (“[T]he obligation to preserve evidence even
arises prior to the filing of a complaint where a party is on notice that litigation is
likely to be commenced.”). Shaffer v. RWP Group, Inc., 169 F.R.D. 19, 24 (E.D.N.Y.
1996) (finding of spoliation where defendant destroyed documents after receiving
complaint which alerted defendant that such documents were relevant and likely to be
sought in discovery). See also Nolte, supra note 25, at 378.
31
KOESEL, BELL & TURNBULL, supra note 1, at 4, 8.
32
Id. at 9.
33
Mark D. Robins, Computers and the Discovery of Evidence – A New
Dimension to Civil Procedure, 17 J. MARSHALL J. COMPUTER & INFO. L. 411, 421 (1999)
(describing spoliation of electronic evidence as particularly thorny in the context of
computer-related evidence). See generally Lawyer Lounge, an Internet resource center
focusing on law office technology, which publishes an interactive page on electronic
discovery, at http://lawyerlounge.com/ediscovery (last visited Jan. 20, 2005).
34
In assessing a document retention policy’s legal sufficiency, a court
considers whether it is “reasonable” in light of the nature of the information. See
Kenneth K. Dort & George R. Spatz, Discovery in the Digital Era: Considerations for
Corporate Counsel, 20 No. 9 COMPUTER & INTERNET LAW. 11, Sept. 2003, at 16 (citing
Lewy v. Remington Arms, 836 F.2d 1104 (8th Cir. 1988). For example, if the
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to establish that such destruction amounts to spoliation.35 In
particular, companies have a responsibility to suspend a
document retention policy in the face of litigation to avoid
spoliation charges.36 However, in some circumstances, courts
have noted that this responsibility falls on the victim of alleged
spoliation, thus creating confusion over which party must
protect against routine destruction. The failure to save
electronic evidence, whether before or during discovery, then,
can be extremely harmful to a party’s case.
Courts are generally reluctant to impose a duty to
preserve evidence on third parties because they neither
initiated nor necessitated the lawsuit.37 Such courts generally
concur that imposing such a duty on non-litigants is unfair
since it would interfere with their right to control and dispose
of their personal property.38 However, exceptions to this general
rule include third parties who are already bound to preserve
evidence by statute, contract, agreement, or special
relationship.39 In such instances, courts have held a third party
accountable for spoliation.40
information would likely be the subject of a dispute, it would be unreasonable to
discard this data. Id. (citing Lewy, 836 F.2d at 1112). Second, the court should
determine whether a company instituted the document retention policy in bad faith.
See Patrick Grady, Discovery of Computer Stored Documents and Computer Based
Litigation Support Systems: Why Give Up More than Necessary? 14 J. MARSHALL J.
COMPUTER & INFO. L. 523, 539-40 (1996) (noting that courts look unfavorably at
companies that appear to have instituted policies only to limit the amount of damaging
evidence otherwise available).
35
Ironically, it is very common for a company to have a document retention
policy in place but not to follow it. In Murphy Oil USA, Inc. v. Fluor Daniel, Inc., for
example, the court observed that if the defendant, Fluor, had followed its document
retention policy, the emails subject to the discovery dispute would have been destroyed,
and the issue would have been moot. Murphy Oil USA, Inc. v. Fluor Daniel, Inc., 52
Fed. R. Serv. 3d 168, 171 (E.D. La. 2002). Instead, Fluor’s failure to follow its own
policies resulted in the expenditure of considerable time and money in discovery
disputes over the production of emails that should have been destroyed in the first
place. Id.
36
See Dort & Spatz supra note 35, at 16.
37
Bart S. Wilhoit, Spoliation of Evidence: The Viability of Four Emerging
Torts, 46 UCLA L. REV. 631, 657 (1998). See also discussion of the tort of spoliation in
relation to third parties infra at III.C.
38
For example, numerous courts have held that neither ordinary tort law nor
a state’s workers’ compensation act imposes a duty on employers to preserve evidence
that might be used in an employee’s third-party claim against a product manufacturer
or other defendant. See Maria A. Losavio, Synthesis of Louisiana Law on Spoliation of
Evidence – Compared to the Rest of the Country, Did We Handle It Correctly?, 58 LA. L.
REV. 837, 852 (1998).
39
KOESEL, BELL & TURNBULL, supra note 1, at 12 (citing Koplin v. Rosel Well
Perforators, Inc., 734 P.2d 1177, 1179 (Kan. 1987)).
40
See Johnson v. United Services Automobile Ass’n, 79 Cal. Rptr. 2d 234, 239
(Ct. App. 1998) (recognizing a duty to preserve evidence where the third-party insurer
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Regardless of how the duty to preserve is defined, the
spoliated evidence must still be relevant, discoverable, and
material to a party’s claim.41 A court usually determines
“whether there is any likelihood that the destroyed evidence
would have been of the nature alleged by the party affected by
its destruction.”42 However, the effect of spoliation is, by its very
nature, speculative.43 As one court has noted, “[w]hen
attempting to determine the effect of missing evidence, ‘courts
face the treacherous task of divining the import of materials
whose contents are unknown and, very often, disputed.’”44 The
burden thus falls on the prejudiced party to produce evidence
suggesting that the destroyed evidence was relevant to
substantiating its claim and would have been included in the
case had it not been destroyed.45 Once this burden has been
overcome, a court is then faced with the formidable challenge of
imposing an appropriate remedy.
II.
TRADITIONAL
EVIDENCE
REMEDIES
FOR
THE
SPOLIATION
OF
When evidence is spoliated, courts have imposed
traditional remedies against the spoliating party. These
include an adverse inference instruction and sanctions such as
dismissal, issue preclusion, summary judgment for the
defendant and, in some cases, criminal penalties.46 The remedy
a court chooses is intended to serve three purposes: deterrence,
punishment, and remediation.47 For example, the court in
accepts a specific request to preserve a particular vehicle, thus inducing reliance on the
part of another); Brown v. City of Delray Beach, 652 So. 2d 1150, 1154 (Fla. Dist. Ct.
App. 1995) (cause of action upheld against local police department for negligently
disposing of evidence after plaintiff’s attorney had requested access to the evidence
while it was in possession of the police).
41
Kinsler & MacIver, supra note 10, at 768.
42
Kronisch v. United States, 150 F.3d 112, 127 (2d Cir. 1998).
43
See Nolte, supra note 25, at 400 (noting impossibility of ascertaining extent
to which spoliation harmed underlying action).
44
Robert D. Peltz, The Necessity of Redefining Spoliation of Evidence
Remedies in Florida, 29 FLA. ST. U. L. REV. 1289, 1337 (2002) (citing Arizona v.
Youngblood, 488 U.S. 51, 57-58 (1988) (citations omitted)).
45
Youngblood, 488 U.S. at 58.
46
Kinsler & MacIver, supra note 10, at 774-75.
47
Kronisch, 150 F.3d at 126. See also West v. Goodyear Tire & Rubber Co.,
167 F.3d 776, 779 (2d Cir. 1999) (noting that while a district court has broad discretion
in choosing an appropriate sanction for spoliation, the applicable sanction is intended
to serve the prophylactic, punitive, and remedial rationales underlying the spoliation
doctrine).
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Pastorello v. City of New York,48 a recent New York case,
imposed a sanction designed to: (1) deter parties from engaging
in spoliation; (2) place the risk of an erroneous judgment on the
party who wrongfully created the risk; and (3) restore the
prejudiced party to the same position he would have been in
absent the wrongful destruction of evidence by the opposing
party.49
A.
Federal and State Remedies
The remedy available to the nonspoliating party also is
influenced by the forum where the spoliation occurs.50 For
example, state courts usually apply the substantive law of the
forum to spoliation claims.51 Federal courts, on the other hand,
have divergent views. Some hold that spoliation during
pending litigation is substantive and governed by state law,
while others consider spoliation a procedural matter under the
rules of federal procedure.52 Thus, similar facts may lead to
different results depending upon the law of the state, and
whether the action is brought in federal or state court.53 The
distinction is significant as it can mean the difference between
a case surviving and being dismissed.54
In theory, courts have broad discretion in imposing
sanctions for spoliation of evidence.55 In practice, they are faced
with procedural constraints.56 For example, Federal Rule 37
permits a court to sanction a party who spoliates evidence in
48
49
No. 95 Civ. 470(CSH), 2003 WL 1740606 (S.D.N.Y. Apr. 1, 2003).
Id. at *7 (quoting West, 167 F.3d at 779 (quoting Kronisch, 150 F.3d at
126)).
50
KOESEL, BELL & TURNBULL, supra note 1, at 2.
Id.
52
Cecilia Hallinan, Balancing the Scales After Evidence is Spoiled: Does
Pennsylvania’s Approach Sufficiently Protect the Injured Party? 44 VILL. L. REV. 947,
951-52 (1999); Moyers v. Ford Motor Co., 941 F. Supp. 883, 884 (E.D. Mo. 1996)
(holding that federal law applies as sanctions are within court’s inherent powers);
Allstate Ins. Co. v. Sunbeam Corp., 865 F. Supp. 1267, 1278 (N.D. Ill. 1994) (noting
that the duty to preserve a defective product is a substantive issue to be decided by
state law), aff’d, 53 F.3d 804 (7th Cir. 1995).
53
KOESEL, BELL & TURNBULL, supra note 11 at 775.
54
Id. n.23 (citing Hank Grzlak, Federal, State Courts at Odds on Spoliation,
PENN. L. WKLY., July 22, 1996 at 1 (explaining that in Pennsylvania, “if a key piece of
evidence is missing in state court, the case has a good chance of being dismissed, even
if the allegedly defective part is preserved,” whereas “[i]n federal court, the judge will
impose some type of sanction, but the case is likely to survive”)).
55
Judge, supra note 18, at 446.
56
Dale A. Nance, Missing Evidence, 13 CARDOZO L. REV. 831, 865 (1991).
51
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response to discovery and evidentiary requests.57 However, Rule
37 usually will not apply to spoliation that occurs prior to
litigation because the rule only governs sanctions for violations
of a court order.58 Rule 37 is thus designed to enforce
compliance with discovery rules rather than to punish the
wrongdoer.59
To address pre-litigation spoliation, courts have relied
on their “inherent power” to control the judicial process and
litigation.60 The power is limited, however, to measures
necessary to redress conduct “which abuses the judicial
process.”61 Though commentators have noted that some judges
may be uncomfortable relying on inherent authority,62 the
inherent powers have proven effective in permitting courtordered sanctions.63 In addition, some federal laws, 64 and many
ethical rules, impose similar duties.65 Many state statutes
authorize criminal sanctions against a party who destroys
evidence.66 Regardless of their source of power, courts have
significant latitude in deciding which discovery sanctions are
appropriate under the circumstances.67
57
FED. R. CIV. P. 37(b)(2) (authorizing sanctions for violations of discovery
orders). Note that most states have a rule modeled after Rule 37. In New York, for
example, N.Y. C.P.L.R. 3126 (McKinney 2003) allows the court to impose penalties
when parties refuse to comply with discovery or disclosure orders.
58
Hutchings, supra note 24, at 400-01 (citing FED. R. CIV. P. 37).
59
See Robinson v. Transamerica Ins. Co., 368 F.2d 37, 39 (10th Cir. 1966)
(explaining that FED. R. CIV. 37(d) secures compliance with discovery rules, rather than
punishing parties); In re Marriage of Lai, 625 N.E.2d 330, 334 (Ill. App. Ct. 1993) (“The
purpose of discovery sanctions is to coerce recalcitrant parties to cooperate in
accomplishing the required discovery, not to punish.”).
60
United States v. Shaffer Equip. Co., 11 F.3d 450, 462 (4th Cir.1993)
(recognizing “that when a party deceives a court or abuses the process at a level that is
utterly inconsistent with the orderly administration of justice or undermines the
integrity of the process, the court has the inherent power to dismiss the action.”).
61
Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991) (Kennedy, J., dissenting)
(recognizing the inherent power of the courts to fashion appropriate sanctions for
conduct that disrupts the judicial process).
62
Judge, supra note 18, at 447 (citing Chambers, 501 U.S. at 61).
63
Id.
64
See, e.g., Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1519 (2002).
65
See, e.g., MODEL RULES OF PROF’L CONDUCT R. 3.4 (2003) (“A lawyer shall
not . . . unlawfully obstruct another party’s access to evidence or unlawfully alter,
destroy, or conceal a document or other material having potential evidentiary value.”).
66
See Cassandra G. Sasso & Mary Price Birk, Discovery and Spoliation
Issues in the High-Tech Age, COLO. LAW., Sept. 2003, at 81, 82. Moreover, because
spoliation in the majority of states is a mere misdemeanor, a spoliator will likely prefer
this minor criminal sanction as opposed to the risk of an enormous civil money
judgment. See Jay E. Rivlin, Recognizing an Independent Tort Action Will Spoil a
Spoliator’s Splendor, 26 HOFSTRA L. REV. 1003, 1017 (1998).
67
See Henderson v. Tyrrell, 910 P.2d 522, 531 (Wash. Ct. App. 1996) (“A trial
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Nonetheless, a court will not always sanction a
spoliating party.68 Rather, courts typically attempt to balance a
number of factors in determining whether sanctions for
prelitigation document destruction are appropriate.69 New York
courts, for example, simply ask whether a particular sanction
is prejudicial and fair.70 This may explain why New York acts
with relative impunity when applying the sanction of the
adverse inference instruction.71 California courts, on the other
hand, take a more precise approach in trying to arrive at an
appropriate sanction. They apply a balancing test that consists
of four factors: (1) the nature and seriousness of the harm to
the injured party; (2) the nature and significance of the
interests promoted by the actor’s conduct (was it unfair or
immoral?); (3) the character of the means used by the actor;
and (4) the actor’s motive (was the destruction of the records
primarily to prevent their use in litigation?).72 California’s
approach, then, offers a more tailored and, perhaps, more
exacting and efficient remedy than that of New York’s.73
court’s decision regarding sanctions for discovery violations . . . [is] discretionary, and
will not be disturbed on appeal absent a showing of abuse of discretion.”). See also
Insurance Corp. of Ireland v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 707
(1982); Gates Rubber Co. v. Bando Chem. Indus., Ltd., 167 F.R.D. 90, 102 (D. Colo.
1996).
68
See Kinsler & MacIver, supra note 10, at 766-67.
69
Id. See also Alliance to End Repression v. Rochford, 75 F.R.D. 438, 441
(N.D. Ill. 1976) (citing Black v. United States, 389 F.Supp. 529 (D.D.C. 1975)).
70
Fada Indust., Inc. v. Falchi Bldg. Co., 730 N.Y.S.2d 827, 828 (Sup. Ct.
2001) (“In deciding whether to impose sanctions for spoliation of evidence, courts will
look to the extent that the spoliation of evidence may prejudice a party, and whether a
particular sanction will be necessary as a matter of elementary fairness.”).
71
See discussions of adverse inference instruction infra Part II.B and New
York’s Approaches to Spoliation infra Part IV.
72
Willard v. Caterpillar, 48 Cal. Rptr. 2d 607, 621-26 (Cal. App. 1995). See
Kinsler & MacIver, supra note 10, at 766-67 (discussing how California courts balance
competing interests in deciding whether to impose sanctions for spoliation). Although
the elements establishing a basis for imposition of sanctions are not settled, the
prevailing consensus of courts is that sanctions are appropriate when a party (1)
destroys discoverable matter (2) under its control (3) which the party knew or should
have known (4) was relevant to pending, imminent or reasonably foreseeable litigation.
See JAMIE S. GORELICK ET AL., DESTRUCTION OF EVIDENCE § 3.8 (1989).
73
Other factors that courts employ include the culpability of the spoliating
party, the prejudice to the non-offending party, the degree of interference with the
judicial process, whether lesser sanctions will remedy any harm and deter future acts
of spoliation, whether evidence has been irretrievably lost, and whether sanctions will
unfairly punish a party for misconduct by the attorney. However, as one court
explained, “[t]hese factors do not constitute a rigid test; rather, they represent criteria
for the . . . court to consider prior to imposing . . . a sanction.” Ehrenhaus v. Reynolds
965 F.2d 916, 921 (10th Cir. 1992) (considering whether dismissal was proper based on
spoliation).
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Adverse Inference Instruction
The adverse inference jury instruction is the most
common and, arguably, most controversial, remedy for
spoliation.74 Under this remedy, the court instructs the jury to
presume that destroyed evidence, if produced, would have been
adverse to the party that destroyed it.75 As one court has noted,
“[i]t is a well-established and long-standing principle of law
that a party’s intentional destruction of evidence relevant to
proof of an issue at trial can support an inference that the
evidence would have been unfavorable to the party responsible
for its destruction.”76
For example, when a defendant destroys only records
relating to a particular transaction on which the plaintiff is
suing, there is a strong inference that those records would have
demonstrated the defendant’s liability.77 Similarly, the
destruction of documents in violation of a document retention
policy gives rise to an inference that such documents were
unfavorable to the party who destroyed them.78 In Latimore v.
Citibank Fed. Sav. Bank, for instance, the court found that
“[t]he violation of a record-retention regulation creates a
presumption that the missing record contained evidence
adverse to the violator.”79 The inference, as a result, has
remedial, punitive and deterrent objectives.80 The remedial
74
One of the earliest and most-cited decisions to recognize the adverse
inference instruction was Armory v. Delemirie, 93 Eng. Rep. 664 (K.B. 1722). In that
case, a young chimney sweep found a ring with a jewel and asked a jeweler to appraise
its value. The jeweler returned the ring to the boy but had removed the jewel, claiming
at trial that it had been misplaced. The court held that unless the jewel was produced,
the jury could presume it to be of the highest value possible for its size. The court, then,
assumed that the jeweler would have produced the jewel had it been less valuable. Id.
75
JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 291
(James H. Chadbourn rev. 1979).
76
Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998).
77
Nation-Wide Check Corp. v. Forest Hills Distrib., 692 F.2d 214, 217-18 (1st
Cir. 1982).
78
See Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 109 (2d Cir.
2001) (citing Latimore v. Citibank Fed. Sav. Bank, 151 F.3d 712, 716 (7th Cir.1998))
("The violation of a record[-]retention regulation creates a presumption that the
missing record contained evidence adverse to the violator."); Favors v. Fisher, 13 F.3d
1235, 1239 (8th Cir. 1994) (because employer violated record retention regulation,
plaintiff “was entitled to the benefit of a presumption that the destroyed documents
would have bolstered her case.”); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1419 (10th
Cir. 1987). See supra notes 34-39 and accompanying text for a discussion of document
retention policies relating to electronic evidence.
79
Latimore v. Citibank Fed. Sav. Bank, 151 F.3d 712, 716 (7th Cir. 1998).
80
JAMES WM MOORE, MOORE’S FEDERAL PRACTICE § 37.121 (3d ed. 1997). See
also Pastorello v. City of New York, No. 95 Civ. 470(CSH), 2003 WL 1740606 at *8
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effect is designed to restore the prejudiced party to its previous
position, as if the spoliation had not occurred.81 The punitive
and deterrent effect is supposed to discourage and punish
spoliation by placing the risk of an erroneous judgment on the
party who wrongfully created such a risk.82 This often creates
an unavoidable incentive for the spoliating party to settle
where such party might otherwise have gone to trial.
Regardless of these objectives, the instruction still allows a
spoliating party to survive a motion for summary judgment or
a motion to dismiss. The spoliation inference does, however,
have its limitations.
Most jurisdictions do not allow an adverse inference to
substitute for an essential element of a plaintiff’s or
defendant’s case.83 Therefore, a plaintiff suffering from
spoliation cannot build his case on the spoliation inference
alone. For the underlying claim to be actionable, the plaintiff
must also possess some concrete evidence that will support the
claim.84 Furthermore, the doctrine of adverse inferences cannot
be applied to cases with third-party spoliators.85 Thus, the court
will give the instruction only when the spoliator is a party to
the lawsuit.86
Although courts generally agree that an adverse
inference instruction is appropriate when the spoliating party
has violated a duty to preserve evidence, courts disagree on the
(S.D.N.Y. Apr. 1, 2003) (“An adverse inference charge as a spoliation sanction has two
underlying rationales, the first being remedial, to restore the prejudiced party to its
previous evidentiary position; and the second being punitive, to act as a deterrent.”);
Shaffer,169 F.R.D. at 25 (“An adverse inference charge serves the dual purposes of
remediation and punishment.”).
81
See generally Kronisch, 150 F.3d at 126 (stating that an adverse inference
instruction serves the remedial purpose, “insofar as possible, of restoring the
prejudiced party to the same position he would have been in absent the wrongful
destruction of evidence by the opposing party.”).
82
Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 75 (S.D.N.Y. 1991)
(“The adverse inference thus acts as a deterrent against even the negligent destruction
of evidence.”).
83
Kammerer v. Sewerage and Water Bd. of New Orleans, 633 So.2d 1357,
1361 (La. Ct. App. 1994) (“The traditional rule at common law will not substitute the
adverse inference for plaintiff’s proof of an essential element of his or her case . . . .”)
(Walter, J., concurring).
84
Id.
85
Stefan Rubin, Tort Reform: A Call for Florida to Scale Back its
Independent Tort for the Spoliation of Evidence, 51 FLA. L. REV. 345, 365 (1999)
(stating that, when the spoliator is a third party, “an adverse inference against the
spoliator would serve no purpose.”).
86
See discussion of Tort for Third-Party Spoliation infra Part III.C.
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requisite level of culpability.87 Some courts require the showing
of “bad faith” or intentional destruction before giving a
spoliation inference instruction.88 Generally, few courts have
ruled that negligence is enough to support the giving of the
instruction.89 Still other courts have yet to decide on a defined
state of mind.90 Evidence, then, can be spoliated along a full
range of culpability—it can be destroyed innocently,
negligently, recklessly, intentionally, or in bad faith.91
However, as one commentator has noted, as the
culpability of the spoliating party decreases (from intent to
innocence), so too does the appeal of the punitive and deterrent
purpose underlying the inference.92 For example, where a party
intentionally destroys evidence, such conduct gives rise to a
strong inference that the party itself thought the evidence
would be so harmful to its case that it was worth the risk of
getting caught to destroy it.93 This intentional conduct should
be punished in addition to placing the injured party in the
same position it would have been absent the loss of evidence.
Such punishment usually comes in the form of high damages
87
See Drew D. Dropkin, Linking the Culpability and Circumstantial
Evidence Requirements for the Spoliation Inference, 51 DUKE L.J. 1803, 1805 (2002).
88
Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997); see also
Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995) (plaintiff must
show willful conduct resulted in the loss or destruction of evidence).
89
See, e.g., Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99
(2d Cir. 2002). See also Nation-Wide Check Corp. v. Forest Hills Distribs., Inc., 692
F.2d 214, 219 (1st Cir. 1982) (bad faith not necessary to establish inference); Turner v.
Hudson Transit Lines, Inc., 142 F.R.D. 68, 75 (S.D.N.Y. 1991) (in granting an adverse
inference instruction based on the defendant’s negligent destruction of evidence, the
court stated, “It makes little difference to the party victimized by the destruction of
evidence whether that act was done willfully or negligently. . . . [T]he risk that the
evidence would have been detrimental rather than favorable should fall on the party
responsible for its loss”).
90
Hirsch v. Gen. Motors Corp., 628 A.2d 1108, 1117 (N.J. Super. Ct. 1993)
(noting that courts disagree whether bad faith or negligence is required). Second
Circuit cases also offer different and shifting standards. See Byrnie v. Town of
Cromwell, Bd. of Educ., 243 F.3d 93, 107-08 (2d Cir. 2001) (noting that the law in the
Second Circuit is unclear on what state of mind a party must have when destroying
evidence). Compare Fujitsu Ltd. v. Federal Exp. Corp. 247 F.3d 423, 436 (2d Cir. 2001)
(requiring intentional destruction) with Reilly v. Natwest Markets Group, Inc., 181
F.3d 253, 267 (2d Cir. 1999) (bad faith is not a “per se” rule, and gross negligence may
suffice).
91
It is difficult to establish a uniform principle because of the ongoing debate
about the proper role of inferences, rebuttable presumptions, and shifting burdens of
production and persuasion. Some courts use these phrases interchangeably while other
courts distinguish them.
92
KOESEL, BELL & TURNBULL, supra note 1, at 36-37 (quoting Nation-Wide
Check Corp., 692 F.2d at 218).
93
See Nesson, supra note 5, at 796.
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awarded by the jury.94 Where the spoliation is merely negligent,
however, a wrongdoer is arguably less culpable and should not
be punished for acts that had no ulterior motive or purpose.
Nevertheless, a jury could impose damages that had a punitive
effect on even a negligent spoliator.95 The argument that a
stronger inference would be appropriate where the spoliation is
intentional is a valid one.96 For this reason, many courts require
corroborating evidence of spoliation before imposing an adverse
inference on negligent spoliators.97 As for those courts which do
impose the inference on negligent spoliators, many impose a
rebuttable presumption, allowing the spoliator to rebut the
testimony of the spoliation victim.98 Thus, by permitting the
defendant to give a reasonable explanation for the destruction
94
Although no systematic studies exist showing that the adverse inference
instruction induces a jury to award high damages, commentators and lawyers have
noted the instruction’s strong influence on jury decisions. For example, a jury returned
a $55.8 million verdict for four plaintiffs who were struck by a train after hearing
evidence that the train company had destroyed important tapes between the conductor
of the train and a dispatcher. The plaintiffs’ lawyer noted that the adverse inference
instruction conveyed to the jury the alleged institutionalization of spoliation in the
upper echelons of rail companies and was key to cultivating large damage awards. See
Nick Upmeyer, Verdicts Involving Railroads Produce Millions – And Lessons on
Evidence, NAT’L L.J., Feb. 3, 2003, at C20. (citing Barber v. Union Pacific, No. CIV-98312 (Ark. Cir. Ct. 2002)). Another train accident case drew a $6 million verdict after
the jury received an adverse inference instruction. According to the plaintiff’s lawyer,
the jury was “disappointed that the railroad not only destroyed the documents but then
came in and tried to explain it away.” See Howard Pankratz, Injured Rail Worker
Awarded $6 Million, DENVER POST, Sept. 22, 2002, at B4.
95
Stipancich, supra note 21, at 1151 (recognizing that damages are not only
speculative, but can be extremely disproportionate to culpability of negligent party).
96
See also Judge, supra note 18, at 445 (commenting that the adverse
inference is predominantly applied to intentional destruction of evidence) (citing Beers
v. Bayliner Marine Corp., 675 A.2d 829, 832 (Conn. 1996)) (noting that courts generally
require a showing that spoliation was intentional before drawing an adverse inference
against the party who has destroyed evidence).
97
Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 77 (S.D.N.Y. 1991)
(noting that the “corroboration requirement is even more necessary where the
destruction was merely negligent, since in those cases it cannot be inferred from the
conduct of the spoliator that the evidence would even have been harmful to him.”).
Residential Funding Corp. v. Degeorge Financial Corp. 306 F.3d 99, 108 (2d Cir. 2002)
(“The sanction of an adverse inference may be appropriate in some cases involving the
negligent destruction of evidence because each party should bear the risk of its own
negligence.”).
98
See generally Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 221
(S.D.N.Y. 2003) (noting that, in cases where bad faith is not clear, courts tend to favor
a rebuttable presumption that the destroyed evidence was unfavorable to the party
responsible for its absence). See also Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 271
(Ill. 1995) (stating that in a negligence action for the spoliation of evidence, a “plaintiff
must demonstrate . . . that but for the defendant’s loss or destruction of evidence, the
plaintiff had a reasonable probability of succeeding in the underlying suit.”).
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of the evidence, the burden-shifting presumption is considered
less severe for negligent spoliators.99
The determination of whether to apply an adverse
inference instruction to the facts of a case is ultimately left to
the jury.100 For example, the jurors hear evidence by both
parties relating to the factual question of whether the evidence
was destroyed while in the control of the party against whom
the inference would be drawn.101 If the jury determines the
evidence does not amount to spoliation, then they will be
instructed by the court not to employ the adverse inference
instruction.102 If the jurors decide spoliation has occurred, they
will factor the adverse inference into their deliberations.103 In
either instance, the jury is allowed to hear not only evidence of
the underlying claim, but evidence of the purported spoliation
as well. Potentially, then, the evidence of spoliation informs
and influences a jury’s decision as much, if not more so, than
the underlying facts of the claim itself.104
This risk of unduly prejudicing the position of the
spoliator is a valid reason for not using the adverse inference
instruction.105 For example, the inference has the potential to
focus the jury’s attention on the spoliation itself, which is a
collateral issue, and thereby distract the jury from the actual
merits of the case. To prevent such prejudice, under Rule 403 of
99
In some instances, application of the rebuttable presumption is based on
whether spoliation was committed by plaintiff or defendant, and not necessarily on the
state of mind of the party who committed the act. Thus, destruction of evidence by the
plaintiff often results in a jury instruction to draw an adverse inference while
destruction by a defendant usually results in a jury instruction to view the inference as
a rebuttable presumption. See Anthony J. Sebok, Spoliation in Modern Tort Litigation
4 (Nov. 12, 2003) (unpublished manuscript prepared for symposium on “Ethical Issues
in Mass Torts and Product Liability Litigation,” on file with author) (citing Vodusek v.
Bayliner Corp., 71 F.3d 148 (4th Cir. 1995) (citing Rule 37)); Pastorello v. City of New
York, No. 95 Civ. 470(CSH), 2003 WL 1740606 at *7 (S.D.N.Y. Apr. 1, 2003) (citing
Rule 37); Hulett v. Niagara Mohawk Power Corp., No. 92-7110, 2002 WL 31010983
(N.Y. Sup. Ct. Aug. 1, 2002).
100
See GORELICK, supra note 72, § 2.2. Under Federal Rule of Civil Procedure
37 and analogous state rules, a court can instruct a jury to draw an adverse inference
from the absence of material evidence. See supra text accompanying notes 59-61
(discussing power of court to sanction parties in violation of discovery orders under
Federal Rule 37).
101
See GORELICK, supra note 72, § 3.11.
102
Even if a judge or magistrate determines that spoliation has occurred and
orders an adverse inference instruction, the jury is nonetheless entitled to disregard it
in making its decision. See id.
103
See id.
104
See Imwinkelried, supra note 3, at 804.
105
DAVID W. LOUISELL & CHRISTOPHER B. MUELLER, FEDERAL EVIDENCE § 70
(rev. ed. 1985).
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the Federal Rules of Evidence, a judge may exclude evidence of
spoliation if he determines it would pose a substantial danger
of “confusi[ng] . . . the issues . . . or misleading the jury.”106
Nonetheless, in situations where evidence is not excluded, a
jury might still be tempted to return a verdict adverse to the
spoliating party as a means of punishing the party for the
misdeed, even if the jurors were not convinced of the spoliator’s
liability.107 Thus, the probative value of using the inference
might well be outweighed by the probative danger of unfairly
penalizing the spoliator.
Rule 403 may be an effective tool for a party resisting
the use of the inference when the evidence will distract the jury
from the merits of the case.108 The argument is convincing. For
example, the question is not whether a defendant discarded
train maintenance records, but whether a defendant was
responsible for causing a train wreck that severely injured the
plaintiff.109 However, trial judges do not simply exclude evidence
relating to an event other than the central historical event on
the merits of the case under Rule 403. On the contrary, in
product liability actions, plaintiffs frequently introduce
evidence of other accidents involving the same or a similarly
designed product.110 Evidence of other accidents involving other
victims is admissible to establish the existence of the defect in
the product’s design.111 Thus, though judges exercise discretion
to exclude evidence of spoliation that is collateral to the main
action, they may still employ the adverse inference instruction
106
FED. R. EVID. 403. Under the legal relevance doctrine, codified in the
Federal Rules of Evidence, a judge may exclude otherwise admissible, relevant
evidence when she fears that the introduction of the evidence would generate “unfair
prejudice” against the litigant.
107
Lawrence Solum & Stephen J. Marzen, Truth and Uncertainty: Legal
Control of the Destruction of Evidence, 36 EMORY L.J. 1085, 1161 (1987).
108
Imwinkelried, supra note 3, at 804.
109
In case where jury returned verdict of $30.1 million against railroad
company for destroying tapes, plaintiff’s attorney noted that, “[The] fact [that the
railroad company destroyed tapes] alone helped convince the jury that the rail
company had something to hide.” See Upmeyer, supra note 94, at C20.
110
Mary A. Parker & Susan Garner, Special Evidentiary Issues in Products
Cases, TRIAL, Nov. 1991, at 41 (“[U]nder the case law and the Federal Rules of
Evidence, evidence of similar accidents is normally admitted.”); see also Francis H.
Hare, Jr. & Mitchell K. Shelly, The Admissibility of Other Similar Incident Evidence: A
Three-Step Approach, 15 AM. J. TRIAL ADVOC. 541, 545-46 (Spring 1992) (“Courts have
consistently held that evidence of other similar incidents is relevant to show either the
existence of a defect or the relative danger of a condition or service.”).
111
Imwinkelried, supra note 3, at 804 (noting that “from a jury’s point of view,
there may be no more important evidence on the issue of the product’s defective
condition than the performance and experience of that product in the real world.”).
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when the destroyed evidence has significant probative worth on
the historical merits of the case.112
Proponents of the adverse inference emphasize that it
avoids the costs of collateral litigation (such as an independent
tort action based on intentional or negligent spoliation).113 Also,
unlike the extreme remedies of dismissal or default judgment,
the spoliation inference may be the most appropriate and
proportional judicial response and may do the best job of fairly
compensating the victimized party.114
Critics of the spoliation inference generally fall into two
camps. The first camp claims that the inference fails to achieve
the objectives of punishment and deterrence. In this regard,
the inference is insufficient as a punitive remedy because, even
in its strongest application, it merely levels the playing field.115
Furthermore, the inference may even encourage a plaintiff
with a weak case to simply lose or destroy the product, endure
the spoliation inference, and take his or her chances with the
jury.116 Lastly, critics argue that the inference may be impotent
as a deterrent because the jury has the discretion to dismiss
the court’s instruction outright.117 Followers of this view, then,
often see the inference as the least onerous sanction available
to rectify spoliation.
The second camp sees the inference as having the
potential to be one of the most severe responses to spoliation.
For example, such commentators fear that juries will be unduly
influenced by destruction of evidence and will unfairly penalize
litigants by means of the adverse inference instruction.118 These
commentators also question the capacity of instructions on the
scope of the inquiry to control the jury, particularly in cases in
112
113
114
Id.
See KOESEL, BELL & TURNBULL, supra note 1, at 40.
Anderson v. Beatrice Foods Co., 900 F.2d 388, 395 (1st Cir. 1990) (citations
omitted).
115
Id.
See generally David H. Canter, The Missing or Altered Product: Nightmare
or Dream? 26 SW. U. L. REV. 1051, 1061 (1997) (noting that after destroying evidence,
plaintiffs can retain experts “who are able to forcefully argue their position without
fear that defendant will have physical evidence to disprove theories.” (citing Bass v.
General Motors, 929 F.Supp. 1287, 1289 (W.D. Mo. 1996)).
117
KOESEL, BELL & TURNBULL, supra note 1, at 174 (citing Blinzler v. Marriot
Int’l, Inc., 81 F.3d 1148 (1st Cir. 1996)).
118
Solum, supra note 107, at 1093 (citing John MacArthur Maguire & Robert
C. Vincent, Admissions Implied from Spoliation or Related Conduct, 45 YALE L.J. 226,
231 (1935)).
116
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which the conduct of the spoliator was outrageous.119 For these
critics, the inference would be more appropriate if used in a
criminal, as opposed to civil, context.120
C.
Discovery and Evidentiary Sanctions
The discovery sanction is more precise, more diverse,
and more tailored to the facts of the case than an adverse
inference instruction.121 For example, courts can sanction
spoliators by excluding evidence which is probative of the same
issue or issues as the destroyed evidence, aiming to balance the
parties’ conflicting interests. This sanction applies by excluding
direct testimony relating to the spoliated evidence and any
reports or secondary evidence, such as photos of the scene,
taken by the expert.122 Excluding plaintiff’s expert testimony is
a less severe sanction than dismissal, yet the practical result is
often the same. If a plaintiff cannot introduce expert testimony
relating to the defective condition of a product, the court may
grant summary judgment to the defendant because there is not
enough evidence to proceed.123 The plaintiff may, however, have
other relevant evidence or may attempt to prove an alternative
theory for the cause of the accident.124
The sanction of dismissing the entire action or entering
a default judgment is among the most severe sanctions within
the court’s power for spoliation.125 Because this sanction is so
119
Id. (citing Maguire & Vincent, supra note 118, at 246).
Such critics note that in criminal cases the courts frequently admit
testimony about an accused’s pretrial misconduct on the theory that the misconduct
evidences the accused’s consciousness of guilt. For instance, if the accused destroys or
conceals incriminating physical evidence, the prosecution may use this to help prove
the accused’s culpability. By doing so, the prosecutor invites the jury to infer the
accused’s guilt from the accused’s conduct. In effect, by acting in this manner, the
accused “admits” his guilt. See Imwinkelried, supra note 3, at 796-97.
121
See Judge, supra note 18, at 445-46.
122
See, e.g., N. Assurance Co. v. Ware, 145 F.R.D. 281, 282 (D. Me. 1993)
(finding that while dismissal would be too severe, exclusion of the evidence was
appropriate despite the lack of any showing that plaintiff acted deliberately); Headley
v. Chrysler Motor Corp., 141 F.R.D. 362, 365-66 (D. Mass. 1991) (excluding plaintiff’s
expert evidence due to the prejudice to defendant and the advantage plaintiff would
obtain otherwise); Hoffman v. Ford Motor Co., 587 N.W.2d 66, 72 (Minn. Ct. App. 1998)
(excluding the testimony of the plaintiff’s expert regarding the cause of the fire in
plaintiff’s garage after the evidence was destroyed).
123
See, e.g., Headley v. Chrysler Motor Corp., 141 F.R.D. 362, 366 n.18 (D.
Mass. 1991); Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg. Corp., 982 F.2d 363, 369
(9th Cir. 1992).
124
See Unigard, 982 F.2d at 370.
125
See generally Miller v. Time-Warner Communications, Inc., 1999 WL
739528 (S.D.N.Y. Sept. 22, 1999) (holding that dismissal is appropriate if there is a
120
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extreme, it is reserved for only the most egregious offenses, and
may not be imposed if there is a lesser, but equally efficient,
remedy available.126 However, some courts have not hesitated to
impose this penalty against both plaintiff and defendant
spoliators who were merely negligent.127
In New York, for example, the negligent disposal of
evidence before an adversary has had an opportunity to inspect
it will suffice to enter a dismissal of the case.128 These sanctions
may be imposed against parties to a lawsuit who violate the
appropriate rules of discovery, or may even be imposed through
the “inherent power” of the court itself.129
D.
Criminal Penalties
In addition to discovery and evidentiary sanctions,
many jurisdictions have obstruction of justice statutes that
impose criminal liability on spoliators of evidence.130 However,
some courts have noted that obstruction of justice statutes do
not provide sufficient deterrence because many violations are
only misdemeanors.131 Moreover, it appears that prosecutors are
unlikely to pursue obstruction of justice claims against
spoliators in civil proceedings.132 Nonetheless, many federal
showing of willfulness, bad faith or fault on the part of the sanctioned party).
126
See generally Bachmeier v. Wallwork Truck Centers, 507 N.W.2d 527 (N.D.
1993) (reversing dismissal and remanding for further proceedings for the consideration
of less restrictive sanctions for negligent spoliation).
127
Where plaintiff has negligently or intentionally destroyed relevant
evidence, both federal and New York state courts will dismiss plaintiff’s suit. See
Sebok, supra note 99, at 4 (citing Pucia v. Farley, 261 A.D.2d 83, 85 (N.Y. App. Div.
1999)). Where defendant is the spoliator, however, federal courts are less willing to
grant summary judgement for plaintiff, though New York courts have done this in
some instances. Id. (citing DiDomenico v. C & S Aeromatik Supplies, Inc., 252 A.D.2d
41, 53 (App. Div., 1998)). But see Jones v. Goodyear Tire & Rubber Co., 137 F.R.D. 657
(C.D. Ill. 1991) (federal court granting plaintiff’s motion for summary judgment).
128
Cummings v. Central Tractor Farm & Country Inc., 722 N.Y.S.2d 285
(App. Div. 2001) (holding that party need not act intentionally, contumaciously, or in
bad faith in connection with loss or destruction of evidence to impose ultimate sanction
of directing judgment against it or dismissing suit).
129
See Wilhoit, supra note 37, at 649 (citing Bachmeier, 507 N.W.2d at 533).
130
Id. at 650 (citing ARIZ. REV. STAT. § 13-2809 (2001); CAL. PENAL CODE §
135 (1999); and MINN. STAT. § 609.63(7)(2003)).
131
See Smith v. Superior Court, 198 Cal. Rptr. 829, 835 (Ct. App. 1984) (“If
crucial evidence could be intentionally destroyed by a party to a civil action who
thereby stands to gain substantially monetarily by such destruction, the effect of a
misdemeanor would be of minimal deterrence.”), overruled by Cedars-Sinai Med. Ctr. v.
Superior Court, 954 P.2d 511, 521 n.4 (Cal. 1998). For a discussion of Smith, see infra
text and accompanying notes 140-145.
132
See Sean R. Levine, Spoliation of Evidence in West Virginia: Do Too Many
Torts Spoliate the Broth? 104 W. VA. L. REV. 419, 432-33 (2002) (citing Smith, 198 Cal.
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obstruction of justice statutes have recently been amended
under the Sarbanes-Oxley Act of 2002133 which arguably makes
the imposition of criminal sanctions a more viable option for
prosecutors and courts alike.
III.
THE DEVELOPMENT OF THE SPOLIATION TORT
Courts in general have been cautious in recognizing or
applying any independent tort of spoliation. In fact, only a few
courts have developed a policy toward holding spoliators of
evidence liable in tort.134 Similar to judicial remedies, spoliation
as a tort furthers the goals of deterrence, punishment and
remediation. However, unlike such remedies, the separate tort
allows recovery of punitive damages in addition to the
originally contemplated damages.135 As a result, advocates of
the tort argue that a spoliator may be even more disinclined to
destroy incriminating evidence considering he has much to
lose.136 States adopting the tort have noted that traditional
remedies are inadequate as they do not fully compensate the
spoliation victim.137 Furthermore, the tort is the only remedy
that allows a plaintiff to recover directly from third-party
spoliators.138 Ultimately, an independent tort of spoliation
Rptr. at 835) (“We know of no prosecution under California Penal Code section 135 –
adopted in 1872 . . . for destroying or concealing documentary evidence relevant only to
prospective civil action.”). See also United States v. Lundwall, 1 F. Supp. 2d 249
(S.D.N.Y. 1998) (finding that civil discovery remedies might be insufficient at times,
and that the federal obstruction of justice statute was applicable, regardless of the fact
that it had never previously been used in a civil destruction of evidence context).
133
The Sarbanes-Oxley Act, largely a response to the Arthur Andersen
accounting scandal, imposes steep fines and up to twenty-year prison terms for anyone
found guilty of destroying corporate audit records or altering, destroying, or falsifying
documents to impede a contemplated or pending federal investigation, bankruptcy, or
official proceeding. 18 U.S.C. § 1512, 1519, and 1520. For a brief explanation of the
Andersen accounting scandal, see Chase, supra note 7, at 745-63.
134
See Smith v. Howard Johnson Co., 615 N.E.2d 1037, 1038 (Ohio 1993)
(adopting the tort of willful spoliation and listing its elements). See also Nolte, supra
note 25, at 359.
135
See Nolte, supra note 25, at 402.
136
In fact, damages in a spoliation action can amount to several millions of
dollars. See Wilhoit, supra note 37, at 633-34 (citing Margaret Cronin Fisk, Looking for
a New Cause of Action? NAT’L L.J., May 19, 1997, at A11 (describing one spoliation case
in which the jury awarded the plaintiff $9,000,000 and another case in which spoliation
was a key factor in a $12,000,000 settlement)).
137
Rivlin, supra note 66, at 1005 (noting that court’s remedial power is
severely limited when spoliation is discovered after entry of final judgment); see also
Stipancich, supra note 21, at 1139 (discussing traditional remedies’ inadequacy in
compensating aggrieved party and deterring spoliator).
138
See supra note 15 and accompanying text. See also discussion of tort of
third-party spoliation infra Part III.B.
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allows the injured party to bring an action against the spoliator
for damages caused solely by evidence destruction.139
A.
Tort of Intentional Spoliation
Smith v. Superior Court, a 1984 California case, is the
landmark decision recognizing a tort action for the intentional
spoliation of evidence.140 Smith was severely injured when the
wheel of an oncoming van broke loose and crashed through her
windshield.141 The van was brought to Abbott Ford, the garage
which had originally put the wheels on the van in the accident.
Abbott Ford, however, failed to retain the parts of the wheel
involved in the accident after promising to do so.142 Smith
alleged that her expert needed the lost parts to determine the
cause of the accident.143 The California Court of Appeals found
that Smith had stated a valid claim against Abbott Ford and,
thus, created a new tort.144 The court acknowledged that the
most troubling aspect of allowing an intentional spoliation
cause of action was the speculative nature of determining
damages, yet concluded that the societal interest in deterrence
outweighed the damages concern.145 Only a few jurisdictions
have followed Smith’s lead and adopted the separate tort of
intentional spoliation.146 Although each jurisdiction employs a
139
Levine, supra note 132, at 428 (citing Coletti v. Cudd Pressure Control, 165
F.3d 767 (10th Cir. 1999); Temple Cmty. Hospital v. Superior Court, 976 P.2d 223 (Cal.
1999); and Trevino v. Ortega, 969 S.W.2d 950 (Tex. 1998) as examples where the
spoliation inference was used as the basis for denial of the recognition of a spoliation
tort). See discussion of reasons for rejecting spoliation tort infra Part III.D.
140
Smith v. Superior Court, 198 Cal. Rptr. 829 (Ct. App. 1984).
141
Id. at 831.
142
Id.
143
Id.
144
Id. at 832 (quoting William Prosser, noting that “[n]ew and nameless torts
are being recognized constantly,” and “[t]he common threat woven in all torts is the
idea of an unreasonable interference with the interests of others”).
145
Smith, 198 Cal. Rptr. at 835-36 (the court analogized the emerging tort to
the recognized tort of intentional interference with prospective business advantage on
the basis that the opportunity to win a lawsuit is the same type of “valuable probable
expectancy” as the opportunity to obtain a contract).
146
Courts in Alaska, Florida, Kansas, New Jersey, New Mexico, Montana and
Ohio have recognized the tort of intentional spoliation. See Hazen v. Municipality of
Anchorage, 718 P.2d 456, 463 (Ak. 1986); St. Mary’s Hosp., Inc. v. Brinson, 685 So. 2d
33, 35 (Fla. Dist. Ct. App. 1996); Foster v. Lawrence Memorial Hosp., 809 F.Supp. 831,
836 (D. Kan. 1992); Oliver v. Stinson Lumber Co., 993 P.2d 11, 11 (Mont. 1999);
Viviano v. CBS Inc., 597 A.2d 543, 550 (N.J. Super. Ct. App. Div. 1991); Coleman v.
Eddy Potash, Inc., 905 P.2d 185, 185 (N.M. 1995); and Smith v. Howard Johnson Co.,
615 N.E.2d 1037, 1037 (Ohio 1993). See also Margaret A. Egan, Tort Law – Spoliators
Beware, But Fear Not an Independent Suit, 24 U. ARK. LITTLE ROCK L. REV. 233, 250
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slightly different formulation, the general elements of the
intentional spoliation tort include: (1) the existence of a
potential civil action; (2) defendant’s knowledge of the potential
action; (3) destruction of evidence; (4) intent; (5) causal
inability to prove the lawsuit or proximate cause; and (6)
damages.147
B.
Tort of Negligent Spoliation
Five months after Smith, the Third District Court of
Appeal in Florida recognized a separate cause of action for the
negligent spoliation of evidence in Bondu v. Gurvich.148 Bondu
noted that a claim for negligent spoliation of evidence may only
stand if the spoliator owed a duty to the plaintiff to preserve
evidence.149 Thus, negligent spoliation is characterized by a lack
of intent and an explicit recognition to preserve evidence for
another party’s use.150 A few states have followed Florida and
recognized negligent spoliation of evidence as a cause of
action.151
The recognition of intentional and negligent spoliation
as a separate tort did not create the following that proponents
of the tort had hoped for. In fact, the California Supreme Court
overruled Smith fourteen years later in Cedars-Sinai Med. Ctr.
(2001) (noting that, similar to Smith v. Superior Court, courts recognizing the separate
tort of spoliation have likened the harm arising from the destruction of evidence to that
suffered by plaintiffs in cases involving intentional interference with prospective
economic advantage).
147
See Levine, supra note 132, at 422.
148
473 So. 2d 1307 (Fla. Dist. Ct. App. 1984), cert. denied, 484 So. 2d 7 (Fla.
1986). Bondu involved a hospital that lost the plaintiff’s anesthesia records and was
subsequently unable to provide them to the plaintiff on his request. Id. at 1312.
149
The defendant hospital in fact had such a duty to save Bondu’s medical
records. Id. at 1313.
150
See Judge, supra note 18, at 449 (citing Continental Insurance Co. v.
Herman 576 So. 2d 313, 315 (Fla. Dist. Ct. App. 1990)) (suggesting the following
elements for the negligent spoliation of evidence tort: (1) the existence of a potential
civil action; (2) a legal or contractual duty to preserve evidence which is relevant to the
potential civil action; (3) destruction of that evidence; (4) significant impairment in the
ability to prove the lawsuit; (5) a causal relationship between the evidence destruction
and the inability to prove the lawsuit; and (6) damages).
151
Florida, Illinois, New Jersey, Kansas and the District of Columbia have
recognized a cause of action for spoliation to include negligence as a basis of liability.
See Digiulio v. Prudential Prop & Cas. Ins. Co. 710 So. 2d 3, 5 (Fla. Ct. App. 1998);
Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 271 (Ill. 1995); Holmes v. Amerex Rent-ACar, 180 F.3d 294, 295 (D.C. Cir. 1999) (holding that negligent or reckless spoliation of
evidence is an independent and actionable tort). See Foster, 809 F. Supp. at 836
(recognizing cause of action for intentional and negligent spoliation of evidence).
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v. Superior Court,152 holding that a party may not bring a
separate cause of action for intentional spoliation of evidence.
The court weighed several factors such as: (1) the availability of
other remedies; (2) the inherently difficult task of calculating
damages; and (3) the prospect of meritless spoliation actions.153
The court also noted that a separate tort imposes indirect costs
in preservation of otherwise valueless evidence.154 Although the
California Court of Appeals still recognizes claims for negligent
spoliation,155 the Cedars-Sinai decision cast a pall over this
cause of action as well.156
Despite courts’ increasingly harsh approaches to
spoliation over the last several years, the recent trend among
jurisdictions has been to reject the tort as it relates to first
parties.157 Rather than recognize a new tort, courts have decided
to employ court-enforced sanctions against the spoliator in the
underlying litigation.158 Courts have noted the costs to
defendants as well as the speculative nature of spoliated
evidence as additional reasons for not recognizing the tort.159
152
954 P.2d 511 (Cal. 1998).
Id. at 515. The court thoroughly examined these three areas: (1) holding
that a remedy for litigation-related misconduct should not create a “spiral of lawsuits”
and should recognize the need for finality in adjudication; (2) holding that the non-tort
remedies of evidentiary inference, discovery sanctions, disciplinary sanctions for
attorneys involved, and criminal penalties seem sufficient; and (3) distinguishing an
“uncertainty of the fact of harm” from mere uncertainty of amount of damages. The
issue of harm to damages was too speculative for a tort remedy to solve. Id. at 515-16.
154
Id. at 519.
155
See, e.g., Hernandez v. Garcetti, 80 Cal. Rptr. 2d 443, 448 (Cal. Ct. App.
1998); Johnson v. United Serv. Auto. Ass’n, 79 Cal. Rptr. 2d 234, 239 (Cal. Ct. App.
1998).
156
Some commentators see room for negligent spoliation claims, cautioning
that the California Supreme Court would likely require the “legal duty” it mentioned at
the start of its analysis. See Jerrold Abeles & Robert J. Tyson, Spoil Sport, L.A. LAW.,
Nov. 1999, at 41.
157
In fact, less than one month after Cedars-Sinai, the Texas Supreme Court
declined to recognize an independent cause of action for either intentional or negligent
spoliation. See Trevino v. Ortega, 969 S.W.2d 950, 951 (Tex. 1998). Levine, supra note
132, at 421-22 (citing KOESEL, BELL & TURNBULL, supra note 1, at 64-66).
158
See generally Fletcher v. Dorchester Mut. Ins. Co., 773 N.E.2d 420 (Mass.
2002) (noting there is no cause of action for spoliation of evidence when appropriately
tailored sanctions imposed in the underlying action are a more efficacious remedy for
spoliation than allowing a separate, inherently speculative cause of action for such
litigation misconduct).
159
Dowdle Butane Gas Co., v. Moore, 831 So. 2d 1124, 1135 (Miss. 2002)
(Supreme Court refused to recognize intentional spoliation of evidence against
spoliators as independent cause of action, where there were sufficient other avenues
and where costs to defendants and courts would have been enormous, particularly from
risks of erroneous determinations of liability due to uncertainty of harm. The court also
noted risk of excessive costs from extraordinary measures required to preserve, for
indefinite periods, items for purposes of avoiding potential spoliation liability in future
153
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Nonetheless, at least three courts have recognized the
spoliation tort for claims against third-parties since 1998.160
C.
Tort of Third-Party Spoliation
The recent recognition of the tort of third-party
spoliation may, indeed, be because it is the only remedy
available against such spoliators. For example, because third
parties are not part of the underlying, original lawsuit,
inferences and sanctions cannot be used against them.161
Therefore, without a third-party spoliation tort, “there may be
no civil remedy to compensate a litigant who is victimized by a
nonparty spoliator.”162 For this reason, even some of the tort’s
harshest critics support its use as protection against thirdparty spoliation.163 Indeed, several jurisdictions recognize a tort
for the negligent and/or intentional spoliation of evidence by
third parties because of the perceived failure of traditional
remedies in the third-party context.164
D.
Challenges to Recognition of the Tort of Spoliation
Recognizing the tort of spoliation, whether for first
parties or third parties, causes three significant problems.
First, it imposes a duty on the owner or custodian of the
litigation. Any benefits obtained by recognizing spoliation tort, noted the court, were
outweighed by burdens imposed.).
160
See, e.g., Smith v. Atkinson, 771 So. 2d 429, 432 (Ala. 2000); Oliver v.
Stimson Lumber Co., 993 P.2d 11, 18 (Mont. 1999); Holmes v. Amerex Rent-A-Car, 180
F.3d 294, 295 (D.C. Cir. 1999).
161
See Levine, supra note 132, at 438 n.128 (citing Elias v. Lancaster Gen
Hosp., 710 A.2d 65, 67-68 (Pa. Super. 1998)) (stating that “traditional remedies would
be unavailing, since the spoliator is not a party to the underlying litigation.”). See also
Levine, supra note 132, at 441.
162
See Judge, supra note 18, at 459.
163
For example, one year after Cedars-Sinai, the California Supreme Court
held in Temple Community Hospital v. Superior Court that no cause of action existed
for the intentional spoliation of evidence by third parties. Temple Community Hospital
v. Superior Court, 927 P.2d 223, 224 (Cal. 1999). However, the court was badly divided,
with the author of Cedars-Sinai writing the dissenting opinion. The dissent noted that
third-party spoliation is particularly troubling. See id. at 234-35.
164
The District of Columbia, Montana, and Alabama have recognized a
general tort action for spoliation, but only for nonparties. See, e.g., Oliver, 993 P.2d at
18 (recognizing tort of spoliation of evidence, which may be negligent or intentional, as
“an independent cause of action” with respect to third parties); Smith v. Atkinson, 771
So.2d 429, 432 (Ala. 2000); Continental Ins. Co. v. Herman, 576 So. 2d 313, 315 (Fla.
Dist. Ct. App. 1990); Thompson ex rel. Thompson v. Owensby, 704 N.E.2d 134, 136-40
(Ind. Ct. App. 1998). But see Dowdle 831 So.2d at 1135 (refusing to recognize
intentional spoliation of evidence against first- and third-party spoliators as
independent causes of action).
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evidence to preserve it.165 Arguably, this would “outweigh the
owner or custodian’s general right to use, modify, or destroy his
own property.”166 Some courts, understandably, have been
reluctant to find this duty in the absence of a relationship
between the parties or a statutory mandate that the evidence
be maintained for, and accessible to, the plaintiff.167
A second, and perhaps more troubling, problem is
determining the requisite tort element of damages.168 Because
spoliation damages are speculative, courts have struggled to
meet the traditional damages standard under which a plaintiff
must establish the amount of damages with reasonable
certainty.169 In a sense, the jury must “quantify the
unquantifiable.”170 Some jurisdictions reject the tort of
spoliation until resolution of the underlying suit, believing that
the suit’s completion would satisfy the certainty requirement
for damages.171 Other courts have held that damages for
spoliation should not be awarded in addition to damages on the
underlying cause of action.172 Commentators point out, however,
165
See KOESEL, BELL & TURNBULL, supra note 1, at 54.
BELL, KOESEL & TURNBULL, supra note 11, at 783 (citing Ortega v.
Trevino, 983 S.W.2d 219, 222 (Tex. Ct. App. 1997)).
167
See Koplin v. Rosel Well Perforators, Inc., 734 P.2d 1177, 1181-82 (Kan.
1987).
168
Delgado v. Mitchell, 55 S.W.3d 508, 512 (Mo. App. S.D. 2001) (stating that
“a damage award must be based on more than a ‘gossamer web of shimmering
speculation and finely-spun theory.’”); Petrik v. Monarch Printing Corp., 501 N.E.2d
1312, 1320 (Ill. App. Ct. 1986) (noting calculation of damages as most difficult aspect of
spoliation of evidence tort).
169
See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS
165 (5th ed. 1984) (noting that actual loss is necessary in negligence cases). See also
Foster v. Lawrence Memorial Hosp., 809 F. Supp. 381, 836 (D. Kan. 1992) (applying
Kansas law and finding that plaintiffs’ inability to identify damages arising from
spoliation of evidence that were distinct from those of their underlying malpractice
claim deprived them of the ability to bring an independent action for spoliation).
170
Nolte, supra note 25, at 394, (quoting Chris Goodrich, Gone Today, Here
Tomorrow, CAL. LAW., June 1984, at 15 (quoting California attorney Raoul D.
Kennedy)).
171
See e.g., Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc.,
456 N.W.2d 434, 438 (Minn. 1990); Baugher v. Gates Rubber Co., 863 S.W.2d 905, 913
(Mo. Ct. App. 1993); Petrik, 501 N.E.2d at 1322; Bondu v. Gurvich, 473 So. 2d 1307,
1312 (Fla. Dist. Ct. App. 1984). See also Paul Garry Kerkorian, Negligent Spoliation of
Evidence: Skirting the “Suit Within a Suit” Requirement of Legal Malpractice, 41
HASTING L.J. 1077, 1101 (1990) (noting that this requirement, however, might be
considered inconsistent with the spoliation tort as a tort of interference that protects
lost probable expectancies and undermines the nature of the tort as an independent
tort action).
172
Callahan v. Stanley Works, 703 A.2d 1014, 1019 (N.J. Super. Ct. App. Div.
1997) (worker’s spoliation damages would have to be reduced by the amount of the
workers compensation lien).
166
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that damages speculative by nature should not per se preclude
a plaintiff from recovery.173 Regardless of the uncertainty of
damages, an injured person should not be denied relief.174
Third, courts rejecting an independent spoliation tort
often stress the “important interest of finality in
adjudication.”175 A spoliation tort may lead to judicial
inefficiency by re-litigating adjudicated issues.176 Recognizing
the tort could also violate long-standing principles of res
judicata and collateral estoppel.177 Arguably, this consequence
only occurs when the spoliation tort is brought after the
underlying action has ended, not when the tort is claimed in
the original action.178 Moreover, if non-tort remedies for
spoliation are sufficient, recognizing a third-party spoliation
tort might have little impact on the interest of finality in
adjudication.179
Despite these arguments challenging the spoliation tort,
the policy considerations of deterrence may provide support for
wider recognition.180 The possibility of punitive damages may do
more to deter and prevent destruction of evidence than
traditional remedies.181 Conversely, allowing punitive damages
could potentially enable a party with an otherwise minimal
claim against the spoliator to recover excessive damages.182
173
See Stipancich, supra note 21, at 1145-46.
Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563 (1931)
(“[W]here the tort itself is of such a nature as to preclude the ascertainment of the
amount of damages with certainty, it would be a perversion of fundamental principles
of justice to deny all relief to the injured person, and thereby relieve the wrongdoer
from making any amend for his acts.”). See also Bigelow v. RKO Radio Pictures, 327
U.S. 251, 264- 65 (1946) (recognizing that the most elementary notions of public policy
require the wrongdoer to “bear the risk of the uncertainty” which his own wrong has
established).
175
See, e.g., Dowdle Butane Gas Co., Inc. v. Moore, 831 So. 2d 1124, 1135
(Miss. 2002); Cedars-Sinai Med. Ctr. v. Superior Court, 954 P.2d 511, 515-16 (Cal.
1998) (citing Silberg v. Anderson, 786 P.2d 365, 370 (Cal. 1990).
176
See Celcilia Hallinan, Balancing the Scales After Evidence is Spoiled: Does
Pennsylvania’s Approach Sufficiently Protect the Injured Party? 44 VILL. L. REV. 947,
973-74 (1999).
177
Rubin, supra note 85, at 367.
178
Nolte, supra note 25, at 423.
179
Rubin, supra note 85, at 366-67 (citing Smith v. Superior Court, 198 Cal.
Rptr. 829, 833-34 (Ct. App. 1984)), overruled by Cedars-Sinai Med. Ctr. v. Superior
Court, 954 P.2d 511 (Cal. 1998).
180
See Wilhoit, supra note 37, at 631.
181
See Nesson, supra note 5, at 803; Moskovitz v. Mt. Sinai Medical Ctr., 635
N.E.2d 331, 343 (Ohio 1994) (holding that the “act of altering and destroying records to
avoid liability . . . is particularly deserving of punishment in the form of punitive
damages.”).
182
In fact, in cases involving a defective product, or in any complex litigation,
174
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NEW YORK’S APPROACH TO SPOLIATION
The approach of New York state courts in addressing
spoliation poses two problems. First, the courts do not take the
culpability of a spoliator into account when determining what
sanction to apply. Instead, New York simply asks whether a
particular sanction is fair to the injured party and not unduly
183
prejudicial to the spoliator. This allows the court to fashion
harsh sanctions, such as the adverse inference instruction,
with relative impunity and not according to the culpability of
the spoliator. Second, New York does not recognize the tort of
third-party spoliation. By definition, third parties are not
parties to an underlying suit and therefore are beyond the
reach of tradition remedies for spoliation. Therefore, thirdparty spoliators often go unpunished in New York State.
A.
Use of Traditional Remedies
Historically, New York decisions have applied strong
sanctions even for inadvertent, negligent spoliation of
184
evidence. For example, in Cummings v. Central Tractor Farm
185
& Country Inc., the court noted that a party need not act
intentionally, contumaciously, or in bad faith in connection
with loss or destruction of evidence to impose the ultimate
sanction of striking the party’s pleadings and directing
judgment against it. New York has justified this severe
approach because, as one court noted, it is the “unfairness [in]
allowing a party to destroy evidence and then to benefit from
186
that conduct or omission” that informs such decisionmaking.
This approach, however, produces two troubling consequences.
First, it allows New York to employ any sanction with
relative impunity. Instead of balancing a list of factors, such as
the spoliating party might be a multi-million dollar corporation against whom such a
recovery would be viable. See Robert Walter Thompson, To the Prevailing Party Goes
the Spoils: An Overview of An Emerging Tort in California, 18 W. ST. U. L. REV. 223,
242 (1990).
183
See supra note 72 and accompanying text.
184
See Kirkland v. New York City Hous. Auth., 666 N.Y.S.2d 609, 611 (App.
Div. 1997) (holding that housing authority’s destruction of stove required dismissal of
complaint as spoliation sanction, regardless of whether destruction was intentional or
negligent). See Squitieri v. City of New York, 669 N.Y.S.2d 589, 590 (App. Div. 1998)
(“[D]ismissal [is] warranted when discovery orders were not violated, and even when
the evidence was destroyed prior to the action being filed . . . notwithstanding that the
destruction was not malicious . . . or in bad faith.” (citations omitted)).
185
722 N.Y.S.2d 285, 286 (App. Div. 2001).
186
See Kirkland, 666 N.Y.S.2d at 611.
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187
the spoliator’s motive, as California does, New York simply
asks whether a sanction is fair to the injured party and not
188
unduly prejudicial to the spoliator. Thus, New York courts
have used dismissal, the most severe of all sanctions, in cases
based on merely negligent spoliation. Though this may seem
fair and unprejudicial to New York courts, many other courts
189
would disagree.
Second, New York does not employ any kind of test
before imposing the adverse inference instruction. Instead, it
simply applies the inference if it believes dismissal would be
190
too severe a sanction. In fact, the New York Court of Appeals
has rejected appellants’ claims that the inference was an
191
improper remedy for spoliation. Though the inference may
indeed be less harmful than the more severe sanction of
192
dismissal, its potentially onerous effects have been largely
disregarded by New York courts.
B.
Refusal to Adopt Tort of First-Party Spoliation
Almost all lower New York court decisions and many
federal court decisions interpreting New York state law adhere
to the majority view of courts throughout the country by
193
denying a cause of action for spoliation. The New York
Supreme Court refused to adopt an independent tort for first-
187
See supra text accompanying note 72.
See supra note 70 and accompanying text.
189
See supra text accompanying notes 69-72.
190
Metro. New York Coordinating Council on Jewish Poverty v. FGP Bush
Terminal, Inc., 768 N.Y.S.2d 190, 191 (App. Div, 2002) (Because “disposed-of evidence
was not key to the proof of plaintiff’s case, the supreme court properly exercised its
discretion in limiting its sanction against defendant Allboro for spoliation to an adverse
inference charge.”).
191
Barlow v. Werner Co., 743 N.Y.S.2d 731, 732 (App. Div. 2002) (“Because
the plaintiffs’ spoliation of evidence was unintentional and did not deprive the
appellant of a means of establishing its defense, the Supreme Court providently
exercised its discretion in . . . directing that a negative inference charge be given.”).
192
See supra text and accompanying notes 125-29 (discussing dismissal as
“drastic” sanction).
193
See, e.g., Tiano v. Jacobs, No. 98 Civ. 6229 DC, 2001 WL 225037, at *4
(S.D.N.Y. Mar. 6, 2001); Black Radio Network, Inc. v. NYNEX Corp., 44 F.Supp.2d 565,
586 (S.D.N.Y. 1999); Tietjen v. Hamilton-Beach/Proctor-Silex, Inc., Nos. 97-CV-188 &
97-CV-949, 1998 WL 865586, at *3 (N.D.N.Y Nov. 25, 1998); Whittlesey v. Espy, No. 96
Civ. 0671, 1996 WL 689402, at *1 (S.D.N.Y. Nov. 26, 1996) (“[P]laintiff cannot allege a
separate cause of action based upon a defendant’s spoliation of evidence.”); Mondello v.
Dun & Bradstreet Corp., No. 94 Civ. 4383, 1996 WL 239890, at *3 (S.D.N.Y. May 9,
1996) (noting that plaintiff cannot “state[ ] a claim for destruction of evidence under
New York law”).
188
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194
party spoliation of evidence in Pharr v. Cortese. Regardless of
Pharr, plaintiffs continue to bring causes of action for
spoliation in New York and, not surprisingly, most courts have
195
continued rejecting them. For example, in the recent case of
196
Hulett v. Niagara Mohawk Power Corporation, two infant
197
plaintiffs who were struck and injured on railroad tracks
198
sought to assert a cause of action for first-party spoliation.
Plaintiffs claimed that the defendant railroad companies
negligently destroyed dispatcher records relevant to their
199
case. The court found sufficient evidence to prosecute a cause
of action based on negligence, but denied the spoliation claim
200
because no prior relationship existed between the parties.
New York, then, has effectively precluded any plaintiff from
bringing a cause of action based on first-party spoliation.
C.
Modified Recognition of Third-Party Spoliation
However, a few New York cases have acknowledged an
201
independent cause of action for third-party spoliation. Such
cases mainly address the circumstance in which an employer is
sued by his employee for spoliation of evidence and the
resulting impairment of the employee’s suit against a thirdparty tortfeasor. For example, in DiDomenico v. C & S
202
Aeromatik Supplies, Inc., the court allowed the plaintiff to
bring a separate direct cause of action against his employer
where the employer impaired his right to sue a third-party
tortfeasor by destroying all of the evidence. Even under that
194
See supra note 15 and accompanying text.
See supra note 20 and accompanying text.
196
No. 92-7110, 2002 WL 31010983 (N.Y. Sup. Ct. Aug 1, 2002).
197
Id. at *1.
198
Id. at *7.
199
The railroad companies were required to keep dispatcher records “for three
years but they destroyed them prior to that date in contravention of their own policy as
well as that of the Interstate Commerce Commission.” Id. at *6.
200
Id. at *8. The court also noted the typical considerations arguing against
the creation of the spoliation tort such as the uncertainty of the existence or extent of
damages; interference with a person’s right to dispose of his property as he chooses;
and inconsistency with policy favoring final judgement. Id. at *8. See also discussion of
separate tort of spoliation supra Part III.
201
See, e.g., Ripepe v. Crown Equip. Corp., 741 N.Y.S.2d 64, 66 (App. Div.
2002); DiDomenico v. C&S Aeromatik Supplies, Inc., 682 N.Y.S.2d 452, 460 (App. Div.
1998); Vaughn v. City of New York, 607 N.Y.S.2d 726 (App. Div. 1994); Weigl v. Quincy
Specialties Co., 601 N.Y.S.2d 774, 776-77 (N.Y. Sup. Ct. 1993).
202
682 N.Y.S.2d at 460.
195
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line of cases, however, the employer’s duty to preserve evidence
203
is limited.
In the most recent case to recognize third-party
204
spoliation, Fada Industries, Inc. v. Falchi Building Co., L.P.,
the court extended the employer/employee basis for third-party
205
spoliation to that of an insurer/insured relationship. In Fada,
the court held that a cause of action may be asserted by an
insured against his insurer where the insurer allegedly
destroyed evidence crucial to the insured’s defense in the
206
underlying action. However, even if a third-party spoliator is
an insurer, there is no guarantee that a plaintiff will
successfully bring a separate cause of action against such a
207
Nonetheless, absent a special relationship
third party.
between plaintiff and third parties, New York courts are
unwilling to recognize a cause of action for third-party
208
spoliation.
203
Weigl, 601 N.Y.S.2d at 777 (finding that New York does not recognize a
separate tort of spoliation, but does recognize similar common law cause of action in
employment law).
204
730 N.Y.S.2d 827 (N.Y. Sup. Ct. 2001).
205
Id. A tenant sued the owner and manager of its building and a cotenant to
recover for property damage caused by the cotenant’s leaking water heater. Before
commencement of that action, the cotenant’s insurer took possession of the water
heater, which subsequently was lost or destroyed while in the possession of an agent of
the insurer. The cotenant impleaded its own insurer for its negligent loss of the water
heater, theorizing that such loss had impaired its ability to defend the action and had
prevented it from impleading the entities that negligently manufactured, installed or
repaired the water heater. The insurer moved to dismiss the third-party complaint
against it, but the court denied the motion, thereby sustaining the third-party claim for
negligent spoliation of evidence/impairment of defense. Id. at 831
206
Id. The court in Fada stated that “[t]he facts of [Fada] clearly support
extending the DiDomenico v. C & S Aeromatik Supplies decision, which applies to an
employer-employee relationship, to the insured-insurer relationship, and to the
recognition of a negligent spoliation cause of action under circumstances such as those
presented here.” Id. at 838.
207
Sterbenz v. Attina, 205 F. Supp. 2d 65, 72 (E.D.N.Y. 2002). Plaintiff sued
the insurer and one of its claims agents, alleging spoliation of evidence and impairment
of her products liability claim against the manufacturer of the car. The court for the
Eastern District of New York granted the insurer’s motion for summary judgment
dismissing the action, declaring any claim for spoliation of evidence groundless under
New York law and determining the insurer’s conduct to have been reasonable in any
event. See id. at 71-73.
208
See generally Steinman v. Barclays Bank, 715 N.Y.S.2d 841 (App. Div.
2000), dismissing appeal from, 727 N.Y.S.2d 695 (2001) (rejecting on the facts an
independent claim against Barclays Bank for intentionally withholding certain
presumably canceled travelers' checks from third-party plaintiff).
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V.
PROPOSALS
A.
Use of Spoliator’s Culpability When Determining
Sanctions and Applying Adverse Inference Instruction
New York state courts might consider refining their
approach to spoliation through greater consideration of the
particular facts and circumstances of a given case. First, New
York state courts should take the spoliators’s culpability into
account when fashioning a spoliation remedy. For example,
New York federal courts consider the culpability of a spoliator
as one of the most important factors in determining whether
209
sanctions for spoliation are appropriate. This means that a
negligent spoliator would be much less likely to receive a harsh
sanction, such as dismissal, than an intentional spoliator.
Second, New York state courts should apply a test
before applying the adverse inference instruction. In New York
federal courts, for example, the party seeking the instruction
must establish the following three elements: (1) that the party
having control over the evidence had an obligation to preserve
it at the time it was destroyed; (2) that the records were
destroyed with a “culpable state of mind”; and (3) that the
destroyed evidence was “relevant” to the party’s claim or
defense such that a reasonable trier of fact could find that it
210
would support that claim or defense. A “culpable state of
mind” for purposes of a spoliation inference includes ordinary
211
negligence.
When the destruction is negligent, relevance must be
212
proven by the party seeking the inference. When evidence is
destroyed in bad faith (i.e., intentionally or willfully), on the
other hand, that fact alone is sufficient to demonstrate
213
relevance. By adopting a test similar to New York’s federal
courts for the adverse inference instruction, state courts would
209
Gates Rubber Co. v. Bando Chem. Indus., 167 F.R.D. 90, 102 (D. Colo.
1996) (“Two of the factors . . . have taken on greater importance in most of the cases on
sanctions for spoliation: (1) the culpability of the offender, or the alleged mental state
which gave rise to the destruction of evidence, and (2) the degree of prejudice or harm
which resulted from the actions of the offender.”).
210
See Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107-08 (2d Cir.
2001).
211
See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108
(2d Cir. 2002).
212
Id.
213
Id. at 109.
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employ a more tailored and appropriate remedy, especially for
negligent spoliators.
Finally, if New York is unwilling to apply such a test, it
should at least require intent instead of negligence for the
adverse inference instruction. In fact, few states besides New
214
York have expanded the inference to negligent spoliation.
Were the inference merely remedial, as some commentators
assume, then it might be a more appropriate remedy for a
215
negligent offender. Ultimately, New York’s spoliation remedy
should more closely correspond to the spoliator’s culpability or
216
scienter.
B.
Broader Recognition for Third Party Spoliation Tort
New York must also recognize a broader tort of thirdparty spoliation. By limiting the tort to third parties who are
employers or certain insurers, New York risks allowing the
destruction of evidence by other classes of third parties to go
unchecked. Furthermore, the state’s refusal to recognize a tort
for first-party intentional or negligent spoliation certainly does
not preclude it from recognizing a tort for third-party
spoliation. Thus, the court’s recent statement in Metlife Auto &
Home v. Joe Basil Chevrolet, Inc. that “it stands to reason that
those courts that do not recognize [a tort for intentional or
negligent spoliation] against a first party likewise would not
217
recognize one against a third party” is unreasonable. Because
sanctions may not be levied upon a disinterested, independent
third party, an independent tort action for third-party
spoliation of evidence is the only means to deter the third-party
destruction of evidence and to compensate the aggrieved party.
Moreover, if courts believe that “[n]on-tort remedies for
spoliation are sufficient in the vast majority of cases,” then
recognition of a third-party spoliation tort will have little
218
overall impact on the interest of finality in adjudication.
214
See, e.g., Farrell v. Connetti Trailer Sales, Inc., 727 A.2d 183, 186 (R.I.
1999); Lagalo v. Allied Corp., 592 N.W.2d 786, 789 (Mich. Ct. App. 1999); Squitieri v.
City of New York, 669 N.Y.S.2d 589, 590 (App. Div. 1998). Several federal circuit courts
of appeal have followed suit. See supra notes 97-99 and accompanying text.
215
Dropkin, supra note 87, at 1828.
216
See Peltz, supra note 44, at 1336.
217
753 N.Y.S.2d 272, 276 (App. Div. 2002).
218
See Dowdle Butane Gas Co. v. Moore, 831 So. 2d 1124, 1130, 1135 (Miss.
2002).
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Unjust consequences will follow New York’s refusal to
expand the tort for third-party spoliation. Absent a third-party
spoliation tort, the integrity of New York’s judicial system
219
could be jeopardized. When evidence helpful to one party is
220
absent, courts cannot administer even-handed justice.
Recognizing a tort for third-party spoliation would reduce
spoliation by putting businesses, governmental entities, and
individuals on notice that if they destroy evidence, serious
221
consequences could result. This effect would promote “an
individual’s due process right to have one’s grievances heard by
a court of competent jurisdiction utilizing all relevant
222
evidence.” When squarely presented with this issue, New
York courts would be wise to give serious consideration to the
reasoning of jurisdictions that have recognized a tort for thirdparty spoliation. To do otherwise risks inviting destruction of
relevant evidence by third parties and the perception that
“individual due process rights are unimportant or are somehow
223
being trampled by the judicial system itself.”
James T. Killelea
219
†
See Callahan v. Stanley Works, 703 A.2d 1014, 1017 (N.J. Super. Ct. Law
Div. 1997).
220
Id. (stating that spoliation “creates enormous costs for both the victimized
party and the judicial system, prevents fair and proper adjudication of the issues, and
interferes with the administration of justice.”).
221
Id.
222
Id. (citing Spencer, supra note 4, at 63).
223
Id. at 1018.
†
B.A., Bowdoin College; J.D. candidate, 2005, Brooklyn Law School. I would
like to thank Professor Anthony J. Sebok for his guidance and support. Many thanks
also to the Brooklyn Law Review staff, especially Timothy D. Sini, for their precise and
insightful editing. Finally, much gratitude to my father and Erin McMurray for their
encouragement, patience, and faith in me.
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NAACP v. AcuSport
A CALL FOR CHANGE TO PUBLIC NUISANCE LAW
*
INTRODUCTION
Despite a drop over the past decade in the number of
violent crimes committed with handguns, the United States
has seen a simultaneous increase in the number of civil suits
brought against the handgun industry.1 Both public and private
plaintiffs seek to hold the industry accountable for the crimes
that continue to be committed with handguns. Various theories
of liability have been articulated in these cases. One of the
most prevalent of these theories is that handgun
manufacturers and distributors have created a public nuisance
through the negligent marketing and distribution of their
products.2 On the whole, such litigation has been unsuccessful,
but some progress has been made in recent years. Courts
appear more receptive to arguments that negligent marketing
and distribution practices are foreseeable causes of handgunrelated crimes.3 In the context of public nuisance cases,
*
© 2005 Megan O’Keefe. All Right Reserved
Carl T. Bogus, Gun Litigation and Societal Values, 32 CONN. L. REV. 1353,
1356 (1999) (referencing 30 municipalities that had brought suits against handgun
manufacturers as of 2000 and identifying several private plaintiffs who filed similar
suits).
2
City of Chicago v. Beretta U.S.A. Corp., 785 N.E.2d 16 (Ill. App. Ct. 2002),
although unsuccessful, was one of the first cases brought by a municipality against
handgun manufacturers under a theory of public nuisance. See also Camden County
Bd. of Chosen Freeholders v. Beretta, 273 F.3d 536 (3d Cir. 2001). In addition to public
nuisance claims, many private individuals have brought claims of negligent marketing
against handgun manufacturers. See Ileto v. Glock, Inc., 194 F. Supp. 2d 1040 (C.D.
Cal. 2002); Hamilton v. Accu-Tek, 62 F. Supp. 2d 802, 808 (E.D.N.Y. 1999).
3
See infra Parts III & IV.
1
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however, such advances have been cut short by the courts’
retention and strict application of the special injury rule.
Public nuisance claims can be brought by both private
plaintiffs, such as individual citizens or private organizations,
or by public plaintiffs, such as states or municipalities.4 When a
private plaintiff brings a public nuisance claim, however, he
has the added burden of proving that the injury he suffered
was a special injury. A special injury is one different in kind
from that suffered by other members of a plaintiff’s community
who came or could have come into contact with the alleged
nuisance.5 This requirement has proven to be a difficult hurdle
for many private plaintiffs to overcome. Application of the
special injury rule regularly leads to quick victories for
defendants allegedly or actually maintaining public nuisances.6
A recent trilogy of cases brought in New York’s state
and federal courts against the handgun industry illustrates
both the roads that have been paved toward a victory against
the handgun industry and the harmful impact that the special
injury rule has had on this progress. The disappointing
outcome of the most notable of these cases, NAACP v.
AcuSport,7 is a model of public nuisance law gone awry.
In July 2003, in the Eastern District of New York,
District Court Judge Jack B. Weinstein dismissed NAACP v.
AcuSport, a lawsuit brought by a private plaintiff, the National
Association for the Advancement of Colored Persons
(“NAACP”), against manufacturers, importers, and distributors
4
RESTATEMENT (SECOND) OF TORTS, § 821B(1) (1979).
Id.
6
See Saks v. Petosa, 584 N.Y.S.2d 321 (App. Div. 1992) in which a lessee
erected a fence that violated the zoning resolution. Private citizens filed a suit claiming
that the fence constituted a public nuisance. The case was dismissed on appeal. The
court found the citizens did not have standing to maintain a cause of action alleging
public nuisance because their damage did not differ from that of the public in general.
Id. at 322. See also Queens County Business Alliance, Inc. v. New York Racing Assoc.,
469 N.Y.S.2d 448 (App. Div. 1983), in which the plaintiff, a business alliance
representing merchants and others, brought suit to enjoin the defendant, a racing
association, from violating city zoning ordinances. The plaintiff alleged no injury
different from that suffered by other residents and merchants of the county, and the
case was thus dismissed. Id. at 449. But see Graceland Corp. v. Consolidated
Laundries Corp., 180 N.Y.S.2d 644 (App. Div. 1958), in which the plaintiff, an
apartment house owner, brought a nuisance action against the defendant, a laundry
company. The defendant parked and stored large trucks and some passenger cars on
the public sidewalk, substantially blocking the sidewalk with respect to the plaintiff’s
premises, but not precluding entirely pedestrian traffic. The court affirmed the trial
court’s injunction because plaintiff succeeded in proving a special injury. Id. at 645-46.
7
NAACP v. AcuSport, Inc., 271 F. Supp. 2d 435 (E.D.N.Y. 2003).
5
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NAACP V. ACUSPORT
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of handguns.8 The NAACP brought (based) its action on a
public nuisance theory under New York law. Judge Weinstein’s
decision to dismiss the case hinged on the NAACP’s failure to
establish a critical element of the claim – that members or
potential members of the NAACP suffered a special injury as a
result of the public nuisance created by the negligent acts of
handgun manufacturers.9 Ultimately, the NAACP could prove
that its members suffered harm of a greater degree than that
suffered by the public at large.10 However, this distinction failed
to satisfy the special injury rule, which requires the harm to be
different in kind.11
The AcuSport decision reveals the substantial
shortcomings that the special injury rule imposes on public
nuisance laws. Public nuisance laws were developed to protect
public rights and values,12 and most Americans value a society
that places some responsibility on the gun industry for the high
rates of crime and violence associated with its products.13
Legislatures, influenced by the powerful lobbies of the gun
industry and the National Rifle Association, may have failed to
pass certain measures for reducing gun violence that a
majority of the public would support,14 but this failure need not
leave Americans without remedies. Because public nuisance
laws derive from the common law, courts have a unique
opportunity to use these laws to articulate a level of
responsibility and accountability expected of handgun
manufacturers. However, by retaining the special injury rule,
courts cannot effectively vindicate the rights and values of
8
Id. at 446.
Id.
10
See infra Part IV.A.
11
AcuSport, 271 F. Supp. 2d at 451.
12
See infra Part II.A.
13
See Timothy D. Lytton, Lawsuits Against the Gun Industry: A Comparative
Institutional Analysis, 32 CONN. L. REV. 1247, 1251 (2001) (“Nationwide surveys
conducted in 1996 and 1998 revealed majority support for laws that would restrict
qualified purchasers to one gun per month and that would compel manufacturers to
install locking devices in all new handguns; both measures were successfully opposed
in Congress by the industry and the NRA.”).
14
Id. Polls have consistently recorded a public preference for stricter gun
control laws. “Six in ten Americans believe that laws covering the sale of firearms
should be more stringent than they are now.” Keating Holland, Poll: Majority of
Americans Favor Stricter Gun Control, CNN, (Apr. 12, 2000) at http://www.cnn.com
/2000/ALLPOLITICS/stories/04/12/poll.guns/index.html (last visited April 20, 2005).
Seventy-two percent of Americans favor stricter laws relating to the control of
handguns. See Humphrey Taylor, The Gun Control Enigma, Harris Interactive (May
13, 2000), at http://www.harrisinteractive.com/harris_poll/index.asp?PID=89 (last
visited April 20, 2005).
9
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American society. The special injury rule prevents courts from
capitalizing on the full potential of public nuisance laws.
Although English common law courts originally conceived of
the special injury rule as an element of the tort of public
nuisance, today, that very element often precludes the tort
from serving the needs that its originators intended it to serve - protecting the public by abating public nuisances.
Courts articulate many reasons for maintaining the
special injury rule, the most common of which is a fear that
abandonment of the rule would open a floodgate of trivial
litigation. While this argument does have merit in the context
of private plaintiffs seeking damages, it seems misplaced in the
context of private plaintiffs seeking injunctive relief. This Note
argues that public nuisance laws could best protect public
rights and values if states like New York eliminate the special
injury rule for private plaintiffs seeking injunctive relief. This
change would allow more private citizens to abate public
nuisances without threatening courts with excessive litigation
or undermining the public rights and values that public
nuisance laws were designed to protect.
Part I of this Note will examine the current problem of
gun violence in the United States and review the recent history
of handgun litigation. Part II will explore the history and
development of public nuisance laws. Parts III and IV will
examine how recent New York litigation, specifically AcuSport,
highlights the inadequacies of current public nuisance laws.
Finally, Part V will argue that the history of the special injury
rule, recent changes to the rule in other jurisdictions, and
existing procedural protections against excessive litigation all
point to the misplacement of the special injury rule in private
actions for injunctive relief.
I.
THE CURRENT STATE OF HANDGUN VIOLENCE AND
HANDGUN LITIGATION IN THE UNITED STATES
Over the past decade, the United States has witnessed a
steady decline in and stabilization of the number of violent
crimes committed with firearms. This number peaked at
581,697 in 1993.15 Over 17,000 of those crimes were homicides.16
15
Crimes Committed with Firearms, 1973-2002, Bureau of Justice Statistics,
at http://www.ojp.usdoj.gov/bjs/glance/tables/guncrimetab.htm (last visited Oct. 25,
2004).
16
Id.
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By 2001, the number of violent crimes committed with firearms
dropped significantly to 354,754.17 Of those crimes, over 11,000
were homicides.18 This decrease followed the enactment of the
Brady Handgun Violence Prevention Act in November 1993.19
The federal act established a system of background checks on
the eligibility of applicants to buy or otherwise acquire
handguns or rifles.20 Between March 1, 1994, and December 30,
2001, almost 38 million applications for firearms were made to
federally licensed dealers. Roughly two percent of those
applicants, approximately 840,000, were rejected.21 Despite the
positive effects of the Brady Act, the number of gun-related
deaths suffered each year in the United States remains higher
than that of any other civilized nation.22
The impact of handgun violence on the AfricanAmerican community has been particularly acute, and
undoubtedly led the NAACP to file its lawsuit against the
handgun industry. For example, in 1999, 505 murders were
committed with firearms in New York State, and 466 of those
murders were committed with handguns.23 Of the 466 victims
killed by handguns in New York State in 1999, 296 were
black.24 This number is highly disproportionate given the fact
that of the approximately 19 million people living in New York,
only three million are black.25 Thus, while blacks make up only
15 % of New York State’s population, they represent 63.5 % of
the victims of handgun homicides. This significant impact that
gun-related crimes have on the black population indicates the
limited ability that our current legislation has to effectively
address our country’s handgun problem.
17
Id.
Id.
19
Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat.
1536 (1993) (codified as amended at 18 U.S.C. §§ 921-922, 924, 925A; 42 U.S.C. § 3759)
(2000)).
20
18 U.S.C. § 922 (2000).
21
Michael Bowling, et al., Background Checks for Firearms Transfers, 2001,
Bureau of Justice Statistics (Sep. 19, 2002), at http://www.ojp.usdoj.gov/bjs/pub/pdf/
bcft01.pdf (last visited April 20, 2005).
22
E.G. Krug, et al., Firearm-Related Deaths in the United States and 35
Other High- and Upper-Middle-Income Countries, 27 INT’L. J. EPIDEMIOLOGY 217
(Issue 2, 1998).
23
1999 Crime & Justice Annual Report, §1 Crimes Reported 21, tbl. 11, New
York State Division of Criminal Justice Services, available at http://criminaljustice.
state.ny.us/crimnet/ojsa/cja_99/sect1a.pdf (1999).
24
Id.
25
United States Census 2000 Demographic Profiles, United States Bureau of
the Census available at http://censtats.census.gov/data/NY/04036.pdf. (2000).
18
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Clearly, for the United States to adequately address the
problem of gun violence, the government must not regulate
only handgun buyers.26 American citizens, as well as states and
municipalities have begun to look at litigation as an
opportunity to pick up the fight against handgun violence
where legislation leaves off. Initially, plaintiffs saw little
success.27 The handgun industry has traditionally responded to
litigation brought against it with a foreseeability argument.28
Manufacturers and distributors maintain that they should not
be held accountable for crimes committed by third parties with
handguns because they could not foresee the number of
handguns involved in criminal acts.29 Settlements are rare.30
Most manufacturers have chosen – with much success – to
litigate the cases brought against them.31 And as most courts
have given the industry’s foreseeability argument weight,32most
cases have ended on defendant-manufacturers’ motions to
dismiss or motions for summary judgment.33
26
See 18 U.S.C. § 922 (1993).
Alfred C. Yen, What Federal Gun Control Can Teach Us About the DMCA’s
Anti-Trafficking Provisions, 2003 WIS. L. REV. 649, 651 n.9 (2003).
28
Timothy D. Lytton, Tort Claims Against Gun Manufacturers for CrimeRelated Injuries: Defining a Suitable Role for the Tort System in Regulating the
Firearms Industry, 65 MO. L. REV. 1, 23 (2000) (arguing that courts reject negligence
claims brought against plaintiffs because they cannot satisfy the foreseeability element
of the tort).
29
Daniel L. Feldman, Not Quite High Noon for Gunmakers, But It’s Coming:
Why Hamilton Still Means Negligence Liability in Their Future, 67 BROOK. L. REV. 293,
301 (2001). A plaintiff alleging a public nuisance must prove causation, but many
handguns used in criminal acts are not purchased but rather are stolen from the
current stock of guns in American homes—approximately 200 million. Id.
30
See Lytton, supra note 13, at 1260 (“Rather than settling most
manufacturers have gambled that they could defeat plaintiffs in court . . . .”).
31
Id.
32
Feldman, supra note 29, at 293 (“With very few exceptions, American
courts have not endorsed mass tort claims against handgun manufacturers. Questions
of cause-in-fact and whether third parties have a duty of care to strangers have posed
significant obstacles.”).
33
See, e.g., City of Philadelphia. v. Beretta U.S.A. Corp., 277 F.3d 415, 426
(3d Cir. 2002).
The causal connection between the gun manufacturers’ conduct and the
plaintiffs’ injuries is attenuated and weak. Further, if we allowed this action,
it would be difficult to apportion damages to avoid multiple recoveries and
the district court would be faced with apportioning liability among, at
minimum, the various gun manufacturers, the distributors, the dealers, the
resellers, and the shooter.
Id; Penelas v. Arms Tech., Inc., 778 So. 2d 1042 (Fla. Dist. Ct. App. 2001) (holding that
dismissal of plaintiff’s complaint against gun manufacturer was appropriate because
plaintiff did not allege that the act of manufacturing a gun was abnormally dangerous
but rather that the use of the completed product by others was unusually dangerous);
see also Firearms Litigation Clearinghouse, Firearms Litigation Reporter: Updates in
Municipal Litigation, at http://www.firearmslitigation.org (last visited Dec. 26, 2003)
27
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New data on the handgun industry has weakened the
industry’s defense. Recent studies have revealed that more
criminals buy their guns new than steal them.34 Firearm
trafficking investigations performed between July 1996 and
December 1998 on guns recovered from criminals revealed that
although over 11,000 of the guns traced were stolen from
licensed gun dealers, over 40,000 guns were trafficked by
licensed dealers.35 This illegal market creates opportunities for
individuals to engage in crimes and violent acts that may
otherwise not be committed. Despite any help these statistics
offer to plaintiffs attempting to overcome the handgun
industry’s foreseeability arguments, the industry continues to
prevail against these private plaintiffs bringing public nuisance
claims because many fail to prove another necessary element of
the claim: the special injury.36 Without further regulations
coming from legislators, public nuisance laws can offer an
immediate and effective remedy to those citizens who suffer the
violent repercussions of negligent manufacturing and
distribution of handguns.37 Eliminating the special injury rule
for plaintiffs seeking injunctions could reinvigorate the remedy
that public nuisance laws provide, enabling them to effectively
serve as a weapon in the United States’ ongoing battle against
handgun violence.
(identifying nine lawsuits brought by municipalities against handgun manufacturers
that were dismissed including Chicago, Cincinnati, Gary, and New Orleans).
34
Feldman, supra note 29, at 301 (citing Glenn L. Pierce, et al., National
Report on Firearm Trace Analysis for 1996-1997, at 11, tbl. 5 (1998)).
35
Id. at 301-02 (citing BATF US Dept. of Treasury, Following the Gun:
Enforcing Federal Law Against Firearms Traffickers, at 13, tbl. 3 (2000)). See also Fox
Butterfield, Gun Flow to Criminals Laid To Tiny Fraction of Dealers, N.Y. TIMES, Jul
1, 1999, at A14 (“Until recently, it had been widely believed that for the most part,
criminals and juvenile offenders stole their guns, and that with 230 million guns in
America, there was little that law enforcement could do to stanch the flow to them.”).
36
See supra notes 5-13 and accompanying text.
37
Daniel P. Larsen, Combating the Exotic Species Invasion: The Role of Tort
Liability, 5 DUKE ENVTL. L. & POL’Y F. 21, 38-39 (1995) (“Th[e] adaptability of public
nuisance law to many types of situations enables the law to be much less rigid than
statutory regulations. Unlike public nuisance law regulatory statutes are limited in
their ability to adjust to changed conditions. Change occurs through either
amendments pursuant to the legislative process or, less radically, through agency or
judicial interpretations. Therefore, common law public nuisance law provides the
desired remedy of abatement, without the quagmire of legislation or the obsolescence of
static regulations. Public nuisance may serve as either a supplement to statutory
regulations for intentional introductions or as the primary tool for unintentional
introductions of exotic species, perhaps the most formidable environmental pollutant
not adequately addressed in the law to date.”).
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II.
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THE HISTORY OF PUBLIC NUISANCE
The history and development of public nuisance laws
and the special injury rule illustrate the misplacement of the
special injury rule as an element of private actions for
injunctive relief against public nuisances. This section
discusses the birth of public nuisance law in England and
examines how the law has since expanded and changed in the
United States.
A.
Public Nuisance Under English Common Law
A public nuisance is an “unreasonable interference with
a right common to the general public.”38 Nuisance laws have
their roots in England where a nuisance, in its earliest form,
was a tort against land, or more specifically, an interference
with the use or enjoyment of one’s private land.39 Later,
nuisance came to encompass “infringement[s] of the rights of
the Crown,” acts that could only be abated by the king bringing
a criminal action for nuisance.40 These cases also involved
interference with land, usually public highways, and they were
labeled public nuisances. English courts distinguished the two
by labeling the original tort, interference with the enjoyment of
private land, a private nuisance. The owner of the private land
sought to redress private nuisances, rather than the king.41
Both public and private nuisances exist today. While the tort of
private nuisance has remained largely unchanged, public
nuisance has changed and expanded since its origin.
Over time, the law of public nuisance has developed in
several ways. First, the doctrine was expanded to redress not
just the rights of the Crown, but also the rights of the public.42
The interferences labeled public nuisances went beyond the
obstruction of public highways and came to comprise a variety
of nuisances infringing on public rights such as an
“interference with a market, smoke from a lime-pit, and
diversion of water from a mill.”43 Initially, only the king could
38
RESTATEMENT (SECOND) OF TORTS § 821B(1) (1979).
Id. § 822.
40
Id. § 821B cmt. a (stating that the remedies for public nuisance originally
were criminal).
41
William L. Prosser, Private Action for Public Nuisance, 52 VA. L. REV. 997,
997-98 (1966).
42
RESTATEMENT (SECOND) OF TORTS, § 821B cmt. a (1979).
43
Id. at § 821B cmt. b. See Prosser, supra note 41, at 998-99 (“By degrees the
class of offenses recognized as ‘common nuisance’ was greatly expanded to include any
39
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redress these invasions of public rights.44 However, in the
sixteenth century, this element of the public nuisance law also
changed. The second major shift in the traditional public
nuisance laws was the creation of a private right of action for a
public nuisance, which allowed private individuals to bring
claims.
The first case of a private action for public nuisance was
brought in England in 1536.45 The plaintiff alleged that the
defendant had blocked a public highway, thereby preventing
him from reaching his property.46 While the court decided that
the defendant’s obstruction of the highway did constitute a
public nuisance, the justices disagreed as to whether the
plaintiff had any right to recovery.47 Chief Justice Baldwin held
that the court should follow the established rule that such an
interference could only be redressed with an action brought by
the Crown. He feared that allowing one such action to be
brought by a private individual would open the door to
hundreds of similar actions.48 Disagreeing with the Chief
Justice was Justice Fitzherbert, who believed the court should
make an exception and allow a private plaintiff to bring a suit
for public nuisance if he “had greater hurt or inconvenience
than any other man had.”49 Justice Fitzherbert described this
greater hurt or inconvenience as a “special hurt,”50 known today
as a special injury.
‘act not warranted by law or an omissions to discharge a legal duty, which
inconveniences the public in the exercise of rights common to all Her Majesty’s
subjects.’”).
44
RESTATEMENT (SECOND) OF TORTS, § 821B cmt. a (1979).
45
Anonymous, Y.B. Mich. 27 Hen. 8, f. 26, pl. 10 (1536).
46
Id.
47
Id.
48
Id. (“If one person shall have an action for this, by the same reason every
person shall have an action, and so he will be punished a hundred times on the same
case.”).
49
Id.
50
Justice Fitzherbert used the following example to describe the kind of
“special hurt” that could arise from a public nuisance and give rise to a private action:
I agree well that each nuisance done in the King’s highway is punishable in the Leet
and not by an action, unless it be where one man has suffered greater hurt or
inconvenience that the generality have; but he who has suffered such greater
displeasure or hurt can have an action to recover the damage which he has by
reason of this special hurt. So if one makes a ditch across the highway, and I come
riding along the way in the night and I and my horse are thrown into the ditch so
that I have great damage and displeasure thereby, I shall have an action here
against him who made this ditch across the highway, because I have suffered more
damage than any other person.
Anonymous, Y.B. Mich. 27 Hen. 8, f. 26, pl. 10 (1536).
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Ultimately, the courts of England adopted Justice
Fitzherbert’s approach and allowed private plaintiffs to bring
actions for public nuisance if they could show that they had
suffered some kind of special hurt.51 Such suits were labeled
tort cases, as opposed to the criminal cases that could still
brought by the crown.52 By limiting the number of private
plaintiffs who can bring a suit for public nuisance, the special
hurt requirement preserved the original intent of public
nuisance laws, which were developed primarily to protect the
public-at-large from harm or danger.53 Allowing all private
plaintiffs to bring actions for public nuisance, regardless of the
harm they suffered, would not necessarily protect the public so
much as redress wrongs to private individuals. The
implementation of the special injury rule reduced the number
of private plaintiffs attempting to relieve individual harms not
shared by the community through public nuisance laws.
Criminal prosecutions remained available after the
development of the private action for public nuisance. However,
by the mid-eighteenth century, public officials increasingly
sought injunctive relief in the civil courts to avoid timeconsuming criminal actions.54 Not long thereafter, private
plaintiffs, who initially sought damages to recover from their
special harms, began seeking injunctive relief when bringing
their private actions for public nuisance.55 Undoubtedly, the
51
Initially there was some confusion within the English courts as to what a
“special hurt” was. This confusion seems to stem from Justice Fitzherbert’s use of the
phrase “greater hurt or inconvenience.” The disagreement was as to whether the harm
a private plaintiff suffered had to be different-in-degree or different-in-kind from that
suffered by the community at large. Eventually courts settled on the different-in-kind
test for a special injury. However, this decision seems to have been more of a practical
one as opposed to a conclusion dictated by the doctrinal underpinnings of Justice
Fitzherbert’s opinion or public nuisance laws in general. A different-in-kind test was
simply easier for courts to administer than a different-in-degree test. See Prosser,
supra note 41, at 1008; WILLIAM L. PROSSER, THE LAW OF TORTS § 89 (3d ed. 1964).
52
See RESTATEMENT (SECOND) OF TORTS § 821B cmt. a (1979); Prosser, supra
note 40, at 999 (1966). See also Christopher V. Panoff, In re the Exxon Valdez Alaska
Native Class v. Exxon Corp.: Cultural Resources, Subsistence Living, and the Special
Injury Rule, 28 ENVTL. L. 701, 707-08 (1998) (“Eventually, public nuisance began to
mesh with the concept of tort. The first case to break away from the concept of allowing
only the king to sue for public nuisance occurred in 1536 . . . . This marked the humble
beginning of the special injury rule.”).
53
NAACP v. AcuSport, 271 F. Supp. 2d 435, 481-82 (E.D.N.Y 2003).
54
See Donald G. Gifford, Public Nuisance as a Mass Products Liability Tort,
71 U. CIN. L. REV. 741, 799 (2003) (“Initially, injunctive relief was seen as a
supplement to the criminal prosecution . . . .”). In 1819, in the case of A.G. v. Johnson,
the Attorney General filed an information for injunctive relief in the King’s Bench to
abate an illegal wharf in the Thames. The injunction was granted, clearing the way for
the Attorney General to bring civil proceedings to abate public nuisances. Id.
55
1752 appears to be the first year in which private parties began to seek
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many potential parties involved and the various means by
which they could abate a public nuisance led to some of the
confusion that surrounded the tort in its development; and that
confusion continues today.
B.
Adoption and Expansion of Public Nuisance Laws in the
United States
Public nuisance became part of early American law
when the United States adopted the English common law.56 As
with most aspects of the common law, colonial America adopted
England’s public nuisance law without much change.57 Early
American courts typically heard two categories of public
nuisance complaints. The first consisted of obstructions of
public highways58or navigable waterways.59 The second included
minor offenses that compromised public morals or the public
welfare.60 As in England, either private individuals who
suffered a special injury or criminal prosecutors brought these
complaints.
Today,
the
Restatement
(Second)
of
Torts
(“Restatement”) defines a public nuisance as “an unreasonable
interference with a right common to the general public.”61 For a
majority of states, public nuisance laws exist in the form of
criminal statutes that impose various penalties on those who
create public nuisances or contribute to them. Like the
Restatement, such laws tend to be broad and vague and do not
injunctive relief to abate public nuisances. In the case of Baines v. Baker, the defendant
had opened an inoculation hospital where persons who feared catching smallpox could
go and be infected under promising conditions, thereby inoculating themselves. A
neighbor of the hospital, a private plaintiff, believed it was a public nuisance and
sought an injunction. Lord Hardwicke denied the request for injunctive relief stating
that, because the hospital was a public nuisance, it was the Attorney General’s decision
as to whether to file an information in the King’s Bench. Id.
56
Prosser, supra note 41, at 999.
57
Gifford, supra note 54, at 802.
58
See, e.g., Thayer v. Dudley, 3 Mass. 296 (1807) (placing logs in the middle
of a Cambridge highway).
59
See, e.g., Burrows v. Pixley, 1 Root 362 (Conn. 1792) (erecting a dam across
a river that prevented boats from reaching plaintiff’s house, farm, store, and shipyard).
60
See United States v. Holly, 26 F. Cas. 346 (D.C. Cir. 1829) (No. 15,381)
(operating gambling house); State v. Kirby, 5 N.C. 254 (1809) (swearing in the courtyard during the sitting of the jury); Commonwealth v. Harrington, 20 Mass. (3
Pickering) 26 (1825) (letting out and accommodating a part of a house for the business
of prostitution).
61
RESTATEMENT (SECOND) OF TORTS § 821B (1979). See also, Copart Indus.,
Inc. v. Consol. Edison Co. of New York, 362 N.E.2d 968, 971 (N.Y. 1977) (holding that
emissions from a plant could be a public nuisance but not a private nuisance).
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offer a clear definition of "nuisance". 62 Nonetheless, these
statutes do make clear that, as in England, a public nuisance
involves an act or omission that causes damage by invading a
public interest or right.63 Some states, such as New York, have
not codified their public nuisance laws and continue to rely on
the common law.64 In addition to general prohibitions against
public nuisances, most states have criminal statutes declaring
specific acts or omissions to be public nuisances.65
American courts continue to limit private citizens’
access to claims of public nuisance by retaining the special
injury rule.66 When the American courts first adopted the public
nuisance doctrine from English common law in the late 1800s,
they struggled to determine the proper test for special injury.67
The question was how to measure the “greater hurt or
inconvenience” that Justice Fitzherbert suggested a private
plaintiff had to prove to establish a claim. While American
courts eventually settled on the different-in-kind test, the state
and federal courts initially split on this issue. State courts
adopted the different-in-kind test while federal courts preferred
a different-in-degree test.68 As in England, the American courts,
62
RESTATEMENT (SECOND) OF TORTS § 821B cmt. c (1979). See, e.g., WASH.
REV. CODE § 47.42.010 (2003) (“The control of signs in areas adjacent to state highways
of this state is hereby declared to be necessary to promote the public health, safety,
welfare, convenience and enjoyment of public travel, to protect the public investment in
the interstate system and other state highways, and to attract visitors to this state by
conserving the natural beauty of areas adjacent to the interstate system . . . .”); VA.
CODE ANN. § 48-7 (2004) (“Whoever shall knowingly erect, establish, continue,
maintain, use, own, occupy or lease any building, erection or place used for the purpose
of lewdness, assignation or prostitution in the Commonwealth is guilty of a nuisance . .
. .”); OR. REV. STAT. § 167.090 (2003) (“A person commits the crime of publicly
displaying nudity or sex for advertising purposes if . . . .”).
63
Examples of acts or omissions held to be public nuisances under general
public nuisance statutes include keeping hogpens, carrying a child with smallpox on a
public highway, unlicensed prize fights, public profanity, a malarial pond, the storage
of explosives, gaming houses, or the shooting of fireworks in the street. Prosser, supra
note 41, at 1000. Conduct that causes or contributes to a public nuisance can fall
within the three traditional categories of liability: intent, negligence, and strict
liability. Id. at 1003-04.
64
NAACP v. AcuSport, 271 F. Supp. 2d 435, 454 (E.D.N.Y 2003).
65
Examples of acts or omissions deemed by statutes to be public nuisances
include maintaining bawdy houses, growing black currant plants, allowing narcotics to
be sold in buildings, failing to attend to mosquito breeding waters, or maintaining
unhealthy multiple dwellings. Prosser, supra note 41, at 999-1000.
66
The special injury rule was officially adopted by the Supreme Court in
1838 when it held, “[A] plaintiff cannot maintain a stand in court of equity; unless he
avers and proves some special injury.” Mayor of Georgetown v. Alexandria Canal Co.,
37 U.S. 91, 99 (1838).
67
Denise E. Antolini, Modernizing Public Nuisance: Solving the Paradox of
the Special Injury Rule, 28 ECOLOGY L.Q. 755, 805-06 (2001).
68
Id.
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both state and federal, eventually settled on the different-inkind test, apparently for reasons of judicial efficiency.
Measuring degrees of harm tends to be more subjective and
thus more time-consuming than distinguishing kinds of harm.
What is most frustrating, however, is that no court suggests
that the strict different-in-kind test is better aligned with the
doctrinal purpose of public nuisance laws.69 Such an arbitrary
choice of definition adds credence to an argument for changing
the special injury rule.70
C.
The Elements of Common Law Public Nuisance
Although a state may not codify a specific act as a public
nuisance,71 one may still bring an action to abate an act if he
can prove the elements of a public nuisance under the state’s
general public nuisance statute or under the common law. By
way of example, New York courts applying public nuisance
laws aim to deter “conduct or omissions which offend, interfere
with or cause damage to the public in the exercise of rights
common to all in a manner such as to offend public morals,
interfere with use by the public of a public place or endanger or
injure the property, health, safety or comfort of a considerable
number of persons.”72 To establish a public nuisance under the
common law in New York, a private plaintiff must prove: (1)
the existence of a public nuisance; (2) conduct or omissions by a
defendant that create, contribute to, or maintain that public
nuisance; and (3) a particular harm suffered by the plaintiff as
a result of the public nuisance that is different in kind from
that suffered by the community at large.73 A public plaintiff, on
69
AcuSport, 271 F. Supp. 2d at 498 (“The requirement that a private plaintiff
suing for public nuisance demonstrate particular harm different from that suffered by
the public at large may be criticized on the ground that it inhibits adequate protection
of the public when government authorities can not or will not act . . . . It does cut down
potential suits by ‘busybodies’ having no particular interest in abating the nuisance
except ideology.”).
70
Despite any vagueness in the general public nuisance laws, one can easily
distinguish public nuisance from its counterpart, private nuisance, which was also
adopted in the United States from the English common law and has not changed much
since its English origin. A private nuisance threatens one person or a few individuals
as a result of an interference with the use or enjoyment of private land. This private
right of action extends to all individuals who suffer such a harm. See Copart, 362
N.E.2d at 971.
71
See supra note 62.
72
Copart, 362 N.E.2d at 971.
73
AcuSport, 271 F. Supp. 2d at 448.
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the other hand, must prove the first two elements but need not
prove the third, a special injury.
1. Existence of a Public Nuisance
When bringing a claim for public nuisance, a private
plaintiff must first prove the existence of a public nuisance. As
stated, a public nuisance is a substantial interference with a
public right. The Restatement defines a public right as one
shared by all members of the general public.74 A nuisance need
not affect a set number of individuals to render it a public
nuisance. Rather, a nuisance becomes public when it is
“committed in such a place and in such manner that the
aggregation of private injuries becomes so great and extensive
as to constitute a public annoyance and inconvenience.”75
Consequently, a plaintiff does not have to show that a nuisance
affects every member of a community to prove that it is a
public nuisance. Instead, a plaintiff only needs to show that the
nuisance will affect every member of a community who comes
into contact with it while exercising a public right.76
The Restatement defines the term “substantial
interference,” as an interference that is unreasonable. The
Restatement attempts to elaborate upon the meaning of the
term with the following explanation:
Circumstances that may sustain a holding that an interference with
a public right is unreasonable include the following: (a) whether the
conduct involves a significant interference with the public health,
the public safety, the public peace, the public comfort or the public
convenience, or (b) whether the conduct is proscribed by a statute,
ordinance or administrative regulation, or (c) whether the conduct is
of a continuing nature or has produced a permanent or long-lasting
effect, and, as the actor knows or has reason to know, has a
significant effect upon the public right.77
So long as an interference with a public right is
reasonable, New York courts will not deem it a public nuisance.
To determine whether an interference is reasonable, courts
often look to the necessity, degree, and/or duration of the
interference. For example, in Hofeler v. Buck, the Supreme
Court of New York Court held that news stands on sidewalk
74
75
76
77
RESTATEMENT (SECOND) OF TORTS § 821B cmt. g (1979).
People v. Rubenfeld, 254 N.Y. 245, 247 (1930).
RESTATEMENT (SECOND) OF TORTS § 821B cmt. g (1979).
Id. § 821B.
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corners constituted a public nuisance unless they fell under the
exceptions of being either “only temporary; that is, not
permanent or habitual, or . . . necessary.”78 The defendants
tried to argue that the news stands were necessary because
they allowed people to purchase clean, dry newspapers. The
court dismissed this argument stating that “[t]o take from the
taxpayer the right to use these sidewalk spaces constructed
and maintained for travel . . . in order to serve such a
convenience, is a contention that needs no argument. These
news stands are not . . . necessary or reasonable, but are
encroachments or incumbances upon the public street and,
therefore, nuisances as matter of law.”79 Thus, while an act or
omission may simultaneously interfere with public rights and
offer the public some kind of benefit or convenience, courts will
deem it a nuisance unless they find it reasonable.80
In addition to the reasonableness of the interference,
courts will also consider the legality of an act that creates a
public nuisance. Courts do not, however, recognize legality as a
defense to an action for public nuisance, and may enjoin a
defendant from engaging in otherwise legal acts if the manner
in which the defendant engages in those acts creates or
contributes to a public nuisance.81 The exception to this rule is
that conduct fully authorized by statute, ordinance, or
administrative regulation does not subject the actor to liability
for a public nuisance even if that conduct creates or contributes
to a public nuisance.82
These questions of legality and reasonableness
frequently arise in handgun litigation brought under public
nuisance laws. As discussed, the gun industry must comply
with many statutory and administrative regulations.83 While
many handgun manufacturers and distributors comply with
these regulations, this compliance is not, in and of itself, a
defense to a public nuisance claim. Notably, in AcuSport, Judge
Weinstein observed that the particular marketing and
78
Hofeler v. Buck, 180 N.Y.S. 563, 566 (Sup. Ct. 1920).
Id. at 567.
80
Robert v. Powell, 61 N.E. 699 (N.Y. 1901) (holding that a stepping stone in
front of a house on which plaintiff injured himself was not a public nuisance because
the stepping stone was not an unlawful or dangerous obstruction but a reasonable and
necessary use of the street for the convenience of the homeowner and for other persons
who desired to visit or enter the house for business or other lawful purpose).
81
NAACP v. AcuSport, 271 F. Supp. 2d 435, 484 (E.D.N.Y 2003).
82
RESTATEMENT (SECOND) OF TORTS § 821B cmt. f (1979).
83
See supra Part I.
79
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distribution practices at issue were unregulated for the most
part.84 Consequently, the next question became whether the
defendants’ actions were unreasonable and, if so, whether they
contributed to the public nuisance created by the unlawful
possession of handguns.85
2. Conduct of Defendants Created, Contributed to, or
Maintained the Nuisance
Even when a court finds substantial interference with a
public right, the court will not hold the defendant liable unless
the plaintiff can prove that the defendant -- either by conduct
or omissions that were intentional, were negligent, or
amounted to abnormally dangerous or ultra-hazardous activity
-- created, contributed to, or maintained a public nuisance.86
The elements necessary to demonstrate negligence in a public
nuisance action are similar, but not identical, to those required
in all tort claims for negligence. A plaintiff must show duty,
breach, and causation. However, on the question of causation,
two differences exist in the analysis that courts use for public
nuisance claims and traditional causation analysis. First,
courts can hold defendants liable for conduct that creates a
public nuisance in the aggregate.87 Second, the occurrence of
multiple, or even criminal, intervening actions do not
necessarily break the chain of causation in a public nuisance
action as they likely would in a negligence action.88 Thus, a
court may hold a defendant liable under public nuisance law
whether his actions were the impetus for the public nuisance or
merely a link in the chain of events giving rise to it. This
altered (broader) definition of causation directly responds to
the foreseeability argument that many handgun manufacturers
make in response to litigation.89
As Judge Weinstein explained in AcuSport, intent, for
public nuisance purposes, is present in the context of handgun
84
AcuSport, 271 F. Supp. 2d at 485.
Id. at 485-86.
86
Copart, 362 N.E.2d at 971. The Restatement also links a finding of
intentional or negligent interference with a public right to the unreasonableness of the
interference. “If the interference with the public right is intentional, it must also be
unreasonable. . . . If the interference was unintentional, the principles governing
negligent or reckless conduct . . . all embody in some degree the concept of
unreasonableness.” RESTATEMENT (SECOND) OF TORTS § 821B cmt. e (1979).
87
AcuSport, 271 F. Supp. 2d at 493.
88
Id.
89
Id. at 494.
85
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litigation when “a manufacturer, importer, or distributor of
handguns knows or is substantially certain that its marketing
practices have a significant impact on the likelihood that a gun
will be diverted into the illegal market and used in crime, and
that substantial harm to the public will result.”90 This
definition of intent can deflate a handgun manufacturer or
distributor’s argument that he should not be held responsible
for the crimes committed with his handguns by third parties.
So long as a plaintiff can prove with substantial certainty that
handgun manufacturers and distributors were aware that such
crimes would be committed because of the business practices in
which they engaged, then the manufacturers and distributors
may be found to have the requisite intent.
3. Special Injury
Generally, state or local government authorities will
bring a cause of action to prosecute a public nuisance.
However, a private citizen can also bring an action for public
nuisance so long as he can show that the public nuisance
caused him to suffer a special injury.91 Consequently, a private
actor bringing an action for public nuisance bears a greater
burden than does a government actor attempting to abate the
same nuisance. In New York, courts apply a different-in-kind
test, rather than a different-in-degree test, to assess whether a
private plaintiff has satisfied the special injury element of the
public nuisance tort.92
Scholars have debated the necessity of requiring private
plaintiffs to prove a harm different in kind to sustain an action
for public nuisance. Some have suggested that courts should
allow private plaintiffs to satisfy the special injury rule by
proving that they have suffered a harm of a greater degree
than the community at large as long as the harm suffered was
substantial and pecuniary in nature.93 Alternatively, Professor
Prosser has argued that courts should not discount degree
90
Id. at 488.
Lansing v. Smith, 8 Cow. 146 (N.Y. 1828) (adopting and applying the
special injury rule in New York); AcuSport, 271 F. Supp. 2d at 482.
92
AcuSport, 271 F. Supp. 2d at 497.
93
See Prosser, supra note 41, at 1008. See also Antolini, supra note 67, at
793, in which the author argues that the sixteenth century anonymous case to which
the development of the special injury rule is attributed seems to suggest a different-indegree test and not a different-in-kind test as Justice Fitzherbert used the term
“greater” four times in his opinion and the term “more” three times in his opinion and
nowhere used language suggesting that harm must be different in kind.
91
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because one can find correlations between degree and kind
when measuring harms. For example, a person who travels
down an obstructed road once a day is unlikely to prevail in a
private action for public nuisance because the harm he suffers
does not differ in kind from that suffered by another individual
who travels down the same road once a week. He could show
“nothing more than that he travels a highway a great deal
more frequently than anyone else,”94a fact that “does not
establish particular damage from loss of its use.”95 However, if
that person travels the same road a dozen times a day, “he
always has some special reason to do so, and that reason will
almost invariably be based upon some special interest of his
own not common to the community. Substantial interference
with that interest must be a particular damage.”96 This blurred
distinction between a harm different-in-kind and a harm
different-in-degree contributes to the confusion surrounding
the special injury rule.
Like many American courts, New York cites efficiency
as justification for applying the special injury rule and the
different-in-kind test.97 Many courts believe that the special
injury limits the number of suits brought against a defendant
who maintains a public nuisance.98 And courts find the
different-in-kind test easier, and thus more efficient, to apply
than the different-in-degree test. Courts think that
distinguishing harms by degree is more subjective than
distinguishing harms by kind.99 Consequently, when no
member of a community suffers “greater hurt or inconvenience
94
Prosser, supra note 41, at 1010.
Id.
96
Id. at 1011. In the 1815 case of Rose v. Miles, an English court allowed the
plaintiff, who suffered a harm different in degree, to bring a public nuisance action
against the defendant whose barge obstructed the plaintiff’s use of his barges for the
sale of goods, wares, and merchandises, forcing the plaintiff to use a more expensive
overland route for his business. While the harm suffered was not unique, as all others
crossing the river had to use the same overland route, the court found it sufficiently
satisfied the special injury rule because the plaintiff’s harm was “something different”
given he was in the business of navigation. See Antolini, supra note 67, at 799.
97
See, e.g., 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96
N.Y.2d 280, 292 (2001) (“This principle [of the special injury rule] recognizes the
necessity of guarding against the multiplicity of lawsuits that would follow if everyone
were permitted to seek redress for a wrong common to the public.”).
98
Judge Weinstein noted that the different-in-kind test “cut[s] down
potential suits by busybodies having no particular interest in abating the nuisance
except ideology.” AcuSport, 271 F. Supp. 2d at 498.
99
See id. at 449 (“Differences in degree do not suffice. There must be
difference in ‘kind’ under New York Law.”).
95
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than any other,”100 only a public actor may bring an action to
abate a public nuisance. Should a state or municipality choose
not to bring an action against the actor creating the nuisance,
the nuisance will simply continue to cause harm to the
community.
Despite the Restatement’s description of the special
injury rule as an unnecessary element of a private action for
public nuisance when the plaintiff seeks injunctive relief,101
New York, like most states,102 requires private plaintiffs to
prove a special injury whether they seek damages or an
injunction to abate a public nuisance.103 Why courts require a
private plaintiff bringing an action for injunctive relief to prove
a special injury remains unclear. The absence of any
justification for the rule argues in favor of eliminating it in the
context of equitable actions, as do the incongruous outcomes
that the rule produces in litigation such as that brought
against the handgun industry.
III.
PRIOR LITIGATION AGAINST HANDGUN MANUFACTURERS
The AcuSport case is unique in that it is the first case in
which a New York court held that handgun manufacturers and
distributors do contribute to the public nuisance created by the
unlawful possession and use of handguns in New York. Two
other cases brought in New York against the handgun industry
100
Prosser, supra note 41, at 1005.
“It has been the traditional rule that if a member of the public has not
suffered damages different in kind and cannot maintain a tort action for damages, he
also has no standing to maintain an action for an injunction. The reasons for this rule
in the damage action are that it is to prevent the bringing of a multiplicity of actions by
many members of the public and the bringing of actions for trivial injury. These
reasons are much less applicable to a suit to enjoin the public nuisance.” RESTATEMENT
(SECOND) OF TORTS § 821C cmt. j (1979).
102
The following cases are examples of states that require private plaintiffs to
demonstrate special injury regardless of the type of relief sought. See Harbor Beach
Surf Club v. Water Taxi, 711 So. 2d 1230, 1236-37 (Fla. Dist. Ct. App. 1998) (“Since
Water Taxi cannot make [] a showing [of a special injury], it has no standing to seek
injunctive relief concerning the bridge.”); Coticchia v. City of Bay Village, No. 73658,
1998 Ohio App. LEXIS 3297, at *5 (Ohio Ct. App. July 16, 1998) (stating that “standing
to maintain a private action for injunctive relief” depends on the plaintiff’s ability to
allege a special injury”); Richmond Realty, Inc., et al. v. Town of Richmond, 644 A.2d
831, 832 (R.I. 1994) (“In the absence of special injury an injunction will not lie for a
public harm of the kind described in this case.”).
103
Graceland Corp. v. Consol. Laundries Corp., 180 N.Y.S.2d 644, 650 (N.Y.
App. Div. 1958) (Valente, J., dissenting) (“Under well-established rules, a plaintiff is
not entitled to injunctive relief against unlawful use of the streets unless he has
sustained a special injury. In the absence of such a showing, it is for the municipality
to abate or enjoin any alleged nuisance.”).
101
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influenced Judge Weinstein’s findings that while the NAACP
failed to satisfy the special injury rule, it did satisfy the other
elements of a public nuisance claim: the existence of a public
nuisance and the defendants’ contribution to that nuisance. A
discussion of these two cases, Hamilton v. Accu-Tek104 and
People v. Sturm, Ruger & Co.,105 will enhance understanding of
the AcuSport decision and this Note’s call for change to the
special injury rule.
A.
Hamilton v. Accu-Tek
Hamilton v. Accu-Tek was brought in July 1995 in the
United States District Court for the Eastern District of New
York before Judge Weinstein. The plaintiffs were relatives of
six individuals killed by handguns and one injured survivor of
a handgun shooting and his mother.106 The plaintiffs claimed
that the manufacturers’ negligent marketing and distribution
practices directly supported an illegal underground market in
handguns. They argued that this market furnished the
weapons used in the shootings that precipitated their lawsuit
and proximately caused the six deaths and one injury for which
the plaintiffs sought damages.107 If for no other reason,
Hamilton distinguished itself from other handgun litigation
because it reached a jury. The jury’s verdict was the first of its
kind.
The jury found fifteen of the twenty-five defendants
were negligent and found that nine of the defendants
proximately caused the injuries suffered by one or more of the
plaintiffs.108 However, the jury awarded damages only to the one
plaintiff who had survived his shooting.109 Following the verdict
for the plaintiffs, Judge Weinstein denied the defendants’
104
62 F. Supp. 2d 802 (E.D.N.Y. 1999) [hereinafter Hamilton III].
761 N.Y.S.2d 192 (N.Y. App. Div. 2003).
106
Hamilton III, 62 F. Supp. 2d at 808.
107
Id.
108
Id. at 811. The case reached the jury after several pretrial motions by
defendants to dismiss the case. Defendants first moved for summary judgment shortly
after the case was brought in 1995. Judge Weinstein dismissed plaintiffs’ products
liability claim and fraud claim but allowed the plaintiffs to proceed on their negligent
marketing theory. Hamilton v. Accu-Tek, 935 F. Supp. 1307, 1315 (E.D.N.Y. 1996)
[hereinafter Hamilton I]. After the parties completed discovery, defendants brought
another motion for summary judgment which was also denied by Judge Weinstein in
1998. Hamilton v. Accu-Tek, No. 95 Civ. 0049, 1998 U.S. Dist. LEXIS 19703, at *1
(E.D.N.Y. Dec. 18, 1998) [hereinafter Hamilton II].
109
Hamilton III, 62 F. Supp. 2d at 808.
105
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motion to dismiss on the ground of collateral estoppel110 and
their motion for judgment as a matter of law.111
Much of the language Judge Weinstein used in
upholding the jury’s verdict foreshadowed the conclusions he
drew in AcuSport. Regarding the manufacturers and
distributors’ responsibility for the crimes committed with their
products, Judge Weinstein declared: “It cannot be said, as a
matter of law, that reasonable steps could not have been taken
by handgun manufacturers to reduce the risk of their products’
being sold to persons likely to misuse them.”112 Judge Weinstein
concluded that handgun manufacturers and distributors have
the ability to detect, and thus prevent, the risks associated
with their products.113 This ability to detect and prevent risks
imposes on manufacturers and distributors a special duty visà-vis any individual foreseeably and potentially placed in
harm’s way by the use of handguns.114 Although the Hamilton
plaintiffs did not bring their case on a public nuisance theory,
Judge Weinstein’s findings on negligence directly impacted his
findings in AcuSport. To successfully bring a public nuisance
action, the NAACP, like the plaintiffs in Hamilton, had to
prove that manufacturers and distributors negligently created,
contributed to, or maintained the public nuisance allegedly
created by handguns.115
Despite Judge Weinstein’s strong statement of the
validity of the jury’s verdict in Hamilton, the Second Circuit
Court of Appeals reversed Judge Weinstein on appeal.116 To
reach its decision, the Second Circuit certified what it described
as two novel questions of state law to the New York Court of
Appeals. The first question was whether the defendants owed
the plaintiffs a duty to exercise reasonable care in the
marketing and distribution of the handguns they
manufactured. The second question was whether liability could
be apportioned by market share, and, if so, how.117 The Court of
110
Id. at 815.
Id. at 839. (“[T]here was sufficient evidence to persuade a rational jury
that criminal misuse of handguns was a reasonably foreseeable result of defendants’
negligent marketing and distribution practices . . . easy access to illegal guns increases
gun violence and homicide.”).
112
Id. at 820.
113
Id. at 821.
114
Hamilton III, 62 F. Supp. 2d at 821.
115
See supra Part II.C.2.
116
Hamilton v. Beretta U.S.A. Corp., 264 F.3d 21 (2d Cir. 2001) [hereinafter
Hamilton IV].
117
Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055, 1068 (N.Y. 2001)
111
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Appeals answered both questions in the negative, ultimately
leading the Second Circuit to overturn the jury’s verdict.
In spite of this outcome, the Court of Appeals notably
remarked that the case had challenged the justices to rethink
the traditional notions of duty, liability, and causation in the
context of handgun litigation.118 The Court of Appeals did not
reject the argument that handgun manufacturers could be
found negligent for handgun crimes. Instead, the court noted
that plaintiffs could possibly succeed in a negligence cause of
action if they could prove that manufacturers supplied
wholesalers knowing that they regularly trafficked guns into
illegal markets.119 These findings left the door open to the
possibility of a favorable outcome in the future for a plaintiff
seeking to hold manufacturers and distributors liable on either
a negligence theory or a public nuisance theory.
B.
People of the State of New York v. Sturm, Ruger & Co.,
et al.
In June 2000, the Attorney General of the State of New
York brought another significant case against handgun
manufacturers and wholesalers in New York Supreme Court .120
In Sturm, Ruger, proceeding on a theory of public nuisance, the
Attorney General, a public plaintiff, brought an action for
injunctive relief. Specifically, the State sought to abate the
“alleged public nuisance arising from the manufacture and
distribution of handguns that are unlawfully possessed and
used in New York.”121 As a public plaintiff, the Attorney General
did not have to allege a special injury. Rather, the Attorney
General only needed to allege conduct by the defendants that
created, contributed to, or maintained an interference with or
injury to the public in the exercise of common rights.122 Despite
the lesser burden that the Attorney General faced compared to
a private plaintiff contending with the special injury rule, the
State Supreme Court granted defendants’ motion to dismiss for
failure to state a cause of action.123 The court found that the
[hereinafter Hamilton V].
118
Id.
119
Id. at 1064.
120
NAACP v. AcuSport, Inc., 271 F. Supp. 2d 435, 457-58 (E.D.N.Y. 2003).
121
Id. at 458 (citing People v. Sturm, Ruger & Co., Index No. 402856/00 (N.Y.
Sup. Ct. Aug. 10, 2001), aff’d, 761 N.Y.S.2d 192 (App. Div. 2003)).
122
People v. Sturm, Ruger & Co., 761 N.Y.S.2d 192, 206 (App. Div. 2003).
123
Id. at 194.
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State could not survive a motion to dismiss because it failed to
sufficiently state specific facts showing how the defendants had
contributed to the creation of the alleged public nuisance,
illegally possessed handguns.124 The Appellate Division, First
Department affirmed the decision on appeal.125
Together, Accu-Tek and Sturm, Ruger set the stage for
the AcuSport litigation. While the special injury rule did not
lead to the demise of either case, both cases impacted Judge
Weinstein’s findings in AcuSport. Each case influenced the
AcuSport decision with regard to the other two elements of a
public nuisance claim: the existence of a public nuisance
created by an illegal market of handguns, and causation.
IV.
NAACP V. ACUSPORT, INC.
A.
Facts and Findings
The NAACP initiated its action in the Eastern District
of New York in July 1999 by filing a complaint against
approximately 80 manufacturers and importers of firearms.
The organization subsequently filed a second action against 50
distributors of firearms in October 1999. The two actions were
consolidated in May 2002.126 The NAACP used the following
language to describe the public nuisance created by the
handgun industry:
[L]arge numbers of handguns are available to criminals, juveniles,
and other people prohibited by law from possessing and using them
in New York state; that their availability endangers the people of
New York and interferes with their use of public space; that the
defendants negligently and intentionally cause this nuisance
although they were on notice . . . that this would be a consequence of
their imprudent sales and distribution practices throughout the
United States; and that defendants negligently and intentionally
failed to take practicable marketing steps that would have avoided
124
Id. In the complaint, plaintiff had alleged that trace requests from the
Bureau of Alcohol, Tobacco and Firearms (BATF) put the defendants on notice that
certain guns manufactured and guns sold in certain locations were used
disproportionately in the commission of crimes. Id. BATF conducts gun traces to
determine the distribution history of a gun used in a crime or recovered by police.
Plaintiff alleged that this information showed that defendants knowingly contributed
to the number of guns in illegal markets through their manufacturing and distribution
practices. Id. at 199. However, the court ultimately held that this information was not
sufficient to demonstrate defendants’ contribution to the alleged public nuisance
because defendants had limited access to this information. Id. at 200.
125
Id. at 194.
126
NAACP v. AcuSport, 271 F. Supp. 2d 435, 499 (E.D.N.Y 2003).
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or alleviated the nuisance by substantially reducing the pool of
illegally possessed handguns in New York and in states where
handguns were obtained for illegal transport to [New York].127
The NAACP sought to enjoin handgun manufacturers,
distributors, and importers from engaging in these activities.
In its complaint, the organization proposed various precautions
that the defendants could take to avoid maintaining this public
nuisance.128 For example, the NAACP argued that defendants
should limit certain activities such as multiple retail sales of
guns to the same person and unsupervised sales of new guns at
gun shows.129 The organization also suggested that the
defendants should cut off sales of new guns to retailers that sell
a disproportionate number of handguns traced by the Bureau
of Alcohol Tobacco and Firearms (“BATF”), because traces
usually indicate a connection between a gun and criminal
activity.130 Finally, the NAACP argued that the defendants
should train retailers to detect straw purchases.131 Although the
NAACP brought this action as a private plaintiff, each of these
proposed injunctions would result in fewer guns being diverted
into illegal markets which would benefit the New York
community at large and not just the members of the NAACP.
In response to the NAACP’s allegations, the defendants
individually and collectively contended that their manufacture
and sale of handguns fully complied with all applicable federal
and state laws.132 Furthermore, the defendants argued that they
conducted their business responsibly and often went beyond
the dictates of the law to ensure that their handguns did not
end up in the hands of criminals.133 Most importantly, however,
the defendants claimed that because gun crimes plague the
New York community at large, the NAACP, a private plaintiff,
could not prove that its members or potential members suffered
127
Id. at 446-47.
Id. at 447.
129
Id.
130
Id.
131
A straw purchase occurs when a person legally entitled to purchase a gun
does so for a person who is not legally entitled. See AcuSport, 271 F. Supp. 2d at 447.
Other suggested precautions included “insisting that a retailer not operate under
various names to avoid surveillance as an unusual source of traced guns; inspecting
retail outlets to see that they are managed appropriately to avoid any overt connection
to criminal elements; and taking other inexpensive and effective steps to stop their new
guns from being diverted from the legal to the illegal market.” Id.
132
Id.
133
Id.
128
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a harm different in kind from that suffered by the rest of the
public.134 Ultimately, this argument led to dismissal.
In reaching his decision to dismiss the case, Judge
Weinstein relied, in part, on the findings of an advisory jury.135
Judge Weinstein deemed an advisory jury particularly
appropriate in an action such as AcuSport where “the issues at
stake are of some public interest, and the relief requested could
have a considerable effect on the New York public.”136 The
advisory jury sat for six weeks and returned verdicts for each
company listed on the verdict sheet. The jury found 45 of the
defendants not liable and reached no verdict as to 23
defendants.137 While Judge Weinstein relied on these findings in
his decision to dismiss the case, he noted that advisory jury’s
verdicts would not interfere with his role as the ultimate trier
of fact.138
Judge Weinstein’s own findings led to the case’s
dismissal. He ultimately held that the NAACP’s claim failed
because the organization could only prove two of the three
elements necessary to prevail on a private claim of public
nuisance. First, the NAACP had established the existence of a
public nuisance in the form of the “criminal possession and use
of handguns in New York [causing] many unnecessary deaths
and much unnecessary injury.” 139 Next, Judge Weinstein
determined that the NAACP satisfied the second element of the
public nuisance test, establishing that the negligent or
intentional conduct or omissions by the defendants created,
contributed to, or maintained the public nuisance. The judge
found that the defendants often acted carelessly in their
marketing and distribution practices, which lacked appropriate
precautions, resulting in a significant diversion of handguns
from the legal market into an illegal market.140 In turn, this
134
Id.
Under the Federal Rules of Civil Procedure, a judge sitting in an equitable
action is both the trier of law and the trier of fact. AcuSport, 271 F. Supp. 2d at 469.
However, the judge may empanel an advisory jury to sit through a trial and render a
verdict as if it were the ultimate trier of fact. Id. at 470-71. While the verdict is not
binding, the judge considers the verdict when ruling on the case. Id. at 472. See FED. R.
CIV. P. 52(a).
136
AcuSport, 271 F. Supp. 2d at 499-500.
137
Id. at 500.
138
Id. at 469.
139
Id. at 449.
140
Id. at 450.
135
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substantial market of illegally obtained handguns led to
increased use of handguns in criminal activities.141
Additionally,
Judge
Weinstein
concluded
that
manufacturers and distributors could significantly reduce the
flow of handguns into the illegal markets by taking some
“obvious and easily implemented steps” to increase the
responsibility of the retailers with whom they contract.142
Suggested by the plaintiff, these steps included “requiring
retailers to avoid multiple or repeat sales to the same
customers.”143 Judge Weinstein reasoned that the handgun
industry could readily institute such a practice by contract with
its retailers.144 Thus, Judge Weinstein had little trouble
identifying the defendants’ contribution to the public nuisance
that illegally obtained handguns created in New York.
Despite these positive findings, the NAACP’s case
ultimately failed on the third element of the public nuisance
test, the special injury rule. The NAACP did successfully prove,
by clear and convincing evidence, that its members suffered a
variety of harms. These harms ranged from a fear of gun
violence preventing NAACP members from attending meetings
to a host of violent crimes committed against NAACP members
with illegally obtained handguns.145 Nonetheless, these findings
could not sufficiently sustain a cause of action because “[t]here
was no proof that men and women were afraid because of
handguns to go out at night only to attend NAACP meetings.”146
Instead, to the NAACP’s detriment, Judge Weinstein concluded
that “[a]ll population groups in New York are potential
homicide victims from illegal handguns in New York.”147
Although Judge Weinstein did find that the NAACP and
its members suffered “greater adverse effects”148 from the public
nuisance created by the defendants than did other members of
the community, harms of a greater degree do not satisfy the
special injury rule. The NAACP failed to prove that the harm it
suffered from the public nuisance was different in kind from
that suffered by other persons in New York.149 “Ironically,”
141
142
143
144
145
146
147
148
149
AcuSport, 271 F. Supp. 2d at 450.
Id.
Id.
Id. at 449.
Id. at 508.
AcuSport, 271 F. Supp. 2d at 508.
Id.
Id. at 451.
Id.
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Judge Weinstein observed, “the demonstration that all New
Yorkers would gain from [the proposed] method[s] of reducing a
dangerous public nuisance prevents the NAACP from obtaining
relief under New York law on the ground that it suffers a
special kind of harm from irresponsible handgun marketing.”150
This conclusion highlights the problems with public nuisance
law’s application of the special injury rule in equitable actions.
More often than not, as in AcuSport, the special injury rule
defeats rather than furthers the purpose of the public nuisance
law: protecting the public at large.
B.
Distinguishing AcuSport from Hamilton and Sturm,
Ruger
Much of the significance of the AcuSport decision lies in
Judge Weinstein’s findings on the second factor of the public
nuisance test: that the manufacturers and distributors had
contributed to a public nuisance, the illegal market of
handguns in New York. This finding distinguished AcuSport
from Hamilton and Sturm, Ruger. In those cases, both the
Second Circuit and the Appellate Division of New York found
that the plaintiffs could not prove the defendants had created,
contributed to, or maintained the alleged public nuisance, the
same illegal gun market complained of in AcuSport.151 This
finding of causation has a tremendous impact on the future of
handgun litigation brought on a theory of public nuisance.
Now, only the special injury rule potentially stands in the way
of a private plaintiff bringing a successful public nuisance
claim against the handgun industry.
The plaintiffs in Sturm, Ruger and AcuSport brought
their cases on a theory of public nuisance. Although Sturm,
Ruger, like AcuSport, was dismissed, Judge Weinstein
distinguished the cases in several ways. Most significantly, he
compared findings on the second element of the public nuisance
test. Judge Weinstein discussed, at some length, the timing of
the Sturm, Ruger case and the evidence available to the
Attorney General when he brought the case.152
The Attorney General of New York brought Sturm,
Ruger in New York Supreme Court in June 2000, almost one
150
151
Id.
Sturm, Ruger, & Co., 761 N.Y.S.2d at 201; Hamilton V, 750 N.E.2d at
1059.
152
AcuSport, 271 F. Supp. 2d. at 458.
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year after the NAACP filed AcuSport in the Eastern District
but three years before Judge Weinstein issued his opinion.153 As
far as the New York Supreme Court knew, the only evidence
that would have been available to the Attorney General in
connection with the second element of the public nuisance
claim, that the defendants had contributed to a public nuisance
through negligent marketing and distribution, was the same
BATF trace evidence presented to the court by the plaintiffs in
Hamilton I.154 Since that evidence failed to withstand appeal in
Hamilton I, the Supreme Court reasoned that the same
evidence could not sufficiently support a claim of public
nuisance in Sturm, Ruger. In reaching its decision, the
Appellate Division assumed that the level of knowledge flowing
from the instant trace requests at the time Sturm, Ruger was
brought was no greater than it was when Hamilton I was
decided.155 Therefore, despite the fact of a public nuisance
created by the unlawful possession of handguns in New York,
the State did not have sufficient evidence to prevail on the
element of causation.
However, Judge Weinstein viewed this conclusion as
rash on the part of the Appellate Division. He criticized the
court for failing to take into account the fact that, as a part of
the federal discovery practice in the AcuSport case, much more
extensive and more recent data from the BATF database was
released to the parties than was available during Hamilton I or
any prior litigation against the handgun industry.156
Judge Weinstein’s findings have significant implications
for the most recent lawsuit brought in New York against the
handgun industry. In June 2000, the City of New York brought
a public nuisance claim against the handgun industry in the
Eastern District of New York.157 In an opinion denying the
defendants’ motion to dismiss, Judge Weinstein remarked that
new BATF data that helped the NAACP satisfy the causation
element of its public nuisance claim in AcuSport would likewise
allow the City to satisfy that element in contesting the
defendants’ motion to dismiss. This decision suggests that the
City has a significant chance of succeeding in its lawsuit,
especially since, as a public actor, the City need not satisfy the
153
154
155
156
157
Id. at 457-58. See also supra note 123 and accompanying text.
Id. at 458.
Id.
Id. at 458-59.
City of New York v. Beretta U.S.A. Corp., 315 F. Supp. 2d 256, 262 (2004).
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special injury element of the tort. The City seeks no damages
against the handgun industry, only injunctive relief that would
require the handgun industry to implement “a variety of
prudent marketing practices to help prevent defendants' guns
from diversion into illegal markets.”158 The relief which the City
seeks – and which it has a better chance of winning than any
other plaintiff who has brought a public nuisance action
against the handgun industry – highlights the inefficiency of
the special injury rule for those private plaintiffs who bring
equitable public nuisance claims. The injunctive relief that the
City of New York seeks mirrors that which the NAACP sought
in its lawsuit. Without the special injury rule to contend with,
the NAACP may have won the injunctive relief it sought,
abated the public nuisance created by the handgun industry,
and thereby eliminated the need for the City of New York to
continue to pour time and money into its current handgun
litigation.
V.
ANALYSIS: ELIMINATING THE SPECIAL INJURY RULE FOR
PRIVATE ACTIONS FOR INJUNCTIVE RELIEF
The outcome of AcuSport argues persuasively for the
elimination of the special injury rule for those private plaintiffs
seeking injunctive relief from a public nuisance. While the
decision left the door open for the State of New York to bring
another public nuisance action against the handgun industry,
there is no guarantee that the State will do so as such litigation
is expensive and time-consuming. Consequently, so long as the
courts continue their strict application of the special injury
rule, the public will remain vulnerable to the pervasive and
dangerous nuisance created by the illegal handgun market.
Both the history of the special injury rule and the nature of
injunctive relief argue in favor of the courts abandoning their
adherence to the special injury rule in cases of private action
for public nuisance.
An early New York court observed that damages
awarded to a plaintiff absent a special injury would distort the
purpose of the public nuisance laws because they would “[give]
every man a separate right of action for what damnifies him in
common only with the rest of his fellow-citizens.”159 However,
this fear of a multiplicity of lawsuits flooding courts in the
158
159
Id. at 263.
Doolittle v. Superiors of Broome County, 18 N.Y. 155, 160 (1858).
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absence of a special injury rule should not penetrate equitable
suits. Were courts to abandon completely their use of the
special injury rule, they may indeed face an infinite number of
private plaintiffs seeking damages as relief from a public
nuisance. But when one plaintiff receives damages for the
harm he suffered, those damages offer no relief for the harm
that his neighbor suffers in the face of the same public
nuisance. Consequently, that neighbor must bring his own
separate suit for damages to remedy his harms. Thus, courts
clearly need some toll with which they can manage the number
of private plaintiffs seeking damages as relief from a public
nuisance. On the other hand, injunctive relief is a management
tool in itself. In eliminating a public nuisance, an injunction
would simultaneously eliminate the need for future litigation.
Whether sought by a private or public plaintiff, injunctive relief
protects all citizens by eliminating the nuisance unreasonably
interfering with their shared rights and interests.
A.
The Application of Public Nuisance Law to Handgun
Litigation
Abandoning the special injury rule in cases where
private plaintiffs seek injunctive relief to abate a public
nuisance could better protect the interests, health, and safety
of the public – as the law was designed to do – without opening
the floodgates of frivolous litigation. Despite the disappointing
outcome of the AcuSport case – in which but for the court’s use
of the special injury rule the NAACP would have had a viable
claim for public nuisance against the handgun industry160 – the
tort of public nuisance offers an effective means of regulating
the sale of handguns in the United States. While Judge
Weinstein’s AcuSport opinion was unique in its findings that
the handgun industry has contributed to the public nuisance
caused by unlawfully possessed handguns,161 its uniqueness
should not militate against the suitability of public nuisance
claims against the handgun industry. One of the benefits of the
common law is that it “is not static.”162 Notwithstanding the
160
See supra Part IV.B.
See supra Part IV.B (explaining that new BATF data relied on by the
plaintiffs in AcuSport led Judge Weinstein to find proof of the gun industry’s
contribution to a public nuisance that had been absent in prior cases).
162
State v. Schenectady Chems, Inc., 459 N.Y.S.2d 971, 977 (Sup. Ct. 1983).
The court goes on to observe that “[s]ociety has repeatedly been confronted with new
inventions and products that, through foreseen and unforeseen events, have imposed
161
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handgun industry’s arguments to the contrary,163 scholars
support the use of public nuisance laws as effective means of
controlling the devastating effects of handgun violence in the
United States. 164
Throughout its existence, public nuisance law has
expanded its reach beyond those evils it was first developed to
combat. While early English courts may not have foreseen
public nuisance laws being used to abate the plague of
handgun violence, the fact that it has survived the virtual
demise of many of the nuisances it was developed to abate –
such as horses falling into ditches – evinces the law’s
adaptability.165
In the context of the illegal handgun market, the
adaptability of public nuisance laws put them at an advantage
over specific state and federal regulations of the handgun
industry. The legislative process is slow, and state statutes or
local regulations are “limited in their ability to adjust to
changed conditions.”166 Conversely, the common law of public
nuisance can readily combat problems that may unexpectedly
plague our society. As the outcome of AcuSport evidences, the
special injury rule severely limits the adaptability of public
nuisance law. Clearly, the illegal handgun market constitutes a
public nuisance as it compromises all of the public rights listed
in the Restatement: the public health, the public safety, the
public peace, the public comfort, and the public convenience.167
So long as courts continue to strictly apply the special injury
dangers upon society,” and “courts have reacted by expanding the common law to meet
the challenge.” Id.
163
See John G. Culhane & Jean Macchiaroli Eggen, Defining a Proper Role for
Public Nuisance Law in Municipal Suits Against Gun Sellers: Beyond Rhetoric and
Expedience, 52 S.C. L. REV. 287, 289 (2001) (stating that both the handgun industry
and anti-gun control organizations believe litigation against the gun industry to be an
attempt to “achiev[e] through litigation what cannot be achieved through the
legislative route” thereby circumventing the “democratic process”).
164
See id. at 290 (“[P]ublic nuisance law is the best fit for municipal
complaints against gun sellers.”); Lytton, supra note 28, at 5 (“Tort liability can
complement legislative regulation, providing gun sellers and manufacturers with
incentives to take reasonable measures to prevent gun sales to criminals, instead of
looking for legal ways to increase them.”).
165
See Larsen, supra note 37, at 42 (“As society’s values shift such as from
promoting a strong national defense to environmental cleanliness, formerly accepted
practices which damage goals important to present-day society will more likely become
prohibited as public nuisances.”).
166
Id. at 38. The author continues, “common law public nuisance law provides
the desired remedy of abatement, without the quagmire of legislation or the
obsolescence of static regulations.” Id. at 38-39.
167
RESTATEMENT (SECOND) OF TORTS § 821B cmt. a (1979).
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rule, public nuisance law will, like existing statutory
regulations of the handgun industry, remain limited in its
ability to effectively abate this nuisance.
While the outcome of the AcuSport case does leave the
door open for a public authority to bring a public nuisance
action against handgun makers,168 the inefficiency of this
outcome cannot be overlooked. The State of New York may not
have needed to bring its own action had the special injury rule
not prematurely ended the NAACP’s quest for injunctive relief.
Whether sought by a private or a public plaintiff, injunctive
relief has been suggested to be the most effective way to protect
the interests of the public threatened by a public nuisance.169
Because injunctive relief benefits the community at large, as
opposed to damages which only benefit the plaintiff in a private
suit for public nuisance, it follows that limiting a private
plaintiff’s access to injunctive relief in claims for public
nuisance hurts not only the plaintiff, but also the entire
community. This outcome is illogical, as public nuisance law
distinguishes itself from private nuisance law by extending
protection to the community at large.170 Scholars have noted
that eliminating the special injury rule for private plaintiffs to
seek injunctive relief from a public nuisance may actually be a
boon to a city or state that either lacks the resources to initiate
such litigation on behalf of its citizens or simply chooses not
to.171
The unsettling effect of the special injury rule is that
the more members of a community who are harmed by a public
168
See supra Part IV.B.
See Culhane, supra note 163, at 323 (“Inasmuch as the purpose of public
nuisance law is to safeguard the public health and safety, the equitable remedies of
injunction and abatement commend themselves as the most appropriate. Traditionally,
in order to stanch the problem at its source, the public plaintiff has sought just such
remedies.”).
170
See Conrad G. Touhey & Ferdinand V. Gonzalez, Emotional Distress Issues
Raised by the Release of Toxic and Other Hazardous Materials, 41 SANTA CLARA L.
REV. 661, 714 (2001) (“The greater the catastrophe, the greater immunity the
tortfeasor may obtain. This is not a logical interpretation or application of the law or
any societal goal, nor is it sound public policy. Under the statutory definition of
nuisance, a public nuisance is distinguished from a private nuisance where an ‘entire
community or neighborhood, or any considerable number of persons’ are affected.”).
171
See Panoff, supra note 52, at 712-13 (“[P]rivate actions complement those
actions brought by public officials. Public officials often lack the resources to bring an
action for public nuisance. Also inertia, political pressures, or vested interest in
nuisance frequently inhibit many political officials. Accordingly, they cannot always be
relied upon to seek adequate redress for a community.”); see also Culhane, supra note
163, at 324 (noting that most municipalities bringing suits against gun manufacturers
have focused on damages rather than injunctive relief).
169
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nuisance, the more difficult it is for them to seek relief from
those harms.172 Under the special injury rule, the private party
best suited to bring an action for public nuisance is the one who
is least representative of the community whose rights have
been compromised. Eliminating the special injury rule in public
nuisance claims for injunctive relief would do away with many
of the paradoxical outcomes that the law currently produces.
B.
Historical Support for a Modern Change to the Special
Injury Rule
Reasons for altering the special injury rule stem back to
its 1536 origin. Chief Justice Baldwin’s fear that “if one person
shall have an action for this, by the same reason every person
shall have an action, and so [the defendant] will be punished a
hundred times [over] on the same case,”173 led Justice
Fitzherbert to suggest that private plaintiffs should show some
“special hurt” when bringing an action for public nuisance. 174
But English courts following the precedent of Anonymous did
not conceive of the different-in-kind formulation of the special
injury rule as the proper interpretation of Justice Fitzherbert’s
special hurt requirement.
One scholar attributes the development of the differentin-kind test to a series of railroad compensation cases brought
in the courts of England in the late 1800s.175 Acts of Parliament
allowed private plaintiffs to seek compensation when railroad
expansions encroached on their property so long as the
172
See NAACP v. AcuSport, Inc., 271 F. Supp. 2d 435, 451 (E.D.N.Y. 2003)
(“Ironically, the demonstration that all New Yorkers would gain from this method of
reducing a dangerous public nuisance prevents the NAACP from obtaining relief under
New York law on the grounds that it suffers a special kind of harm from irresponsible
handgun marketing.”).
173
Anonymous, Y.B. Mich. 27 Hen. 8, f. 26, pl. 10 (1536).
174
In the 1681 case of Hart v. Basset, a private plaintiff in England brought
suit against the defendant for obstructing the way to plaintiff’s barn by placing a ditch
and a gate in a public road. The court did not require the plaintiff to show a different
kind of injury from that suffered by the community at large and rejected the
defendant’s multiplicity argument. The court held that it was sufficient for the plaintiff
to claim that the ditch and gate caused him a greater inconvenience than they caused
to the community at large. Similarly, in the 1738 case of Chichester v. Lethbridge, the
plaintiff’s carriages were blocked by defendant’s obstruction of a highway. Unlike the
public at large, the plaintiff traveled the particular road several times a day, and the
court concluded that the plaintiff had sufficiently shown a special injury because his
harm was greater in degree than the harm suffered by the public. Antolini, supra note
67, at 797.
175
Antolini, supra note 67, at 800.
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plaintiffs could demonstrate an injury different in kind.176 The
test was later ascribed to the special injury element of a private
claim for public nuisance even though courts interpreting
Justice Fitzherbert’s opinion had been using a different-indegree test. 177 The ease of applying a different-in-kind test
apparently accounts for the English courts’ importation of the
test into private actions for public nuisances.178 While courts
must often adopt tools of judicial management at a cost to
potential plaintiffs, the cost borne by those suffering harms
from nuisances as serious as unlawfully possessed handguns
seems too excessive and in need of curtailing.
Without question, the special injury rule limits the
number of private claims brought for public nuisance.
However, the confusion that surrounded the special injury rule
after its development in England179 and adoption in the United
States,180 supports the argument that the rule is not the most
effective way to preclude excessive numbers of private actions.
Indeed, several American jurisdictions have already reached
this conclusion and have begun to modify the special injury
rule.181 These jurisdictions have recognized that the special
injury rule often leads to results that undermine the purpose of
public nuisance law: “safeguard[ing] the public health and
safety.”182
176
Id. at 800-01.
Id. The author argues that the different-in-degree test was applied by the
courts of England until the late 1800s and that the different-in-kind test was
formulated in railroad compensation cases that did not involve public nuisance laws
but rather acts of Parliament allowing:
[C]ompensation for legislatively-authorized railroad companies’ expansion
projects that “injuriously affected” private lands. The litigants and the House
of Lords looked to the injury rule in public nuisance to guide their
determination of compensable injuries under the acts. Even though the Lords
acknowledged that the rule of public nuisance was a different-in-degree test,
the more conservative different-in-kind rule that emerged from these railroad
cases ultimately bounced back into public nuisance law and, ironically,
became the foundation for the modern different-in-kind test.
Id.
178
See supra note 51.
179
See supra note 51.
180
See supra Part II.B.
181
See infra Part V.C.
182
Culhane & Eggen, supra note 163, at 323. The authors juxtapose two cases
in which the application of the special injury rule led to conflicting results. In Anderson
v. W.R. Grace & Co., 628 F. Supp. 1219, 1232-34 (Mass. Dist. Ct. 1986), leukemia
victims, whose illness stemmed from groundwater pollution caused by defendants,
were held to have stated a claim for public nuisance. However, in Venuto v. OwensCorning Fiberglass Corp., 99 Cal. Rptr. 350, 356 (Ct. App. 1971), the court dismissed a
claim for public nuisance brought by plaintiffs suffering respiratory problems because
those problems affected all town residents. Culhane & Eggen, supra note 163, at 311.
177
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C.
NAACP V. ACUSPORT
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Modern Changes to the Special Injury Rule
Responding to the often inequitable results that the
special injury rule can produce, some jurisdictions have altered
their application of the rule, specifically by eliminating the
different-in-kind test. One example is the Burgess v. M/V
Tamano case, which was brought as a class action suit in
federal district court in Maine in 1973.183 The plaintiffs,
commercial fishermen and clam diggers, sought to recover
damages for losses they incurred after an oil tanker, defendant
M/V Tamano, discharged 100,000 gallons of oil into the waters
of the Cosco Bay. For their livelihood, the plaintiffs fished and
harvested for clams in the Cosco Bay.184 The plaintiffs brought
their claim on a theory of public nuisance alleging “loss of
profits and impairment of earning capacity.”185 The defendants
moved to dismiss the claim arguing that the plaintiffs’ damages
were not different in kind from those sustained by members of
the community at large.186 The court denied the motion.187
First declaring the right to fish and harvest clams in
Maine’s coastal waters a “public right[] . . . held by the State of
Maine in trust for the common benefit of all of the people,”188
the court went on to discuss the role the special injury rule
should play when that right is infringed. The court observed
that absent a special injury,189 a private plaintiff had no
standing to bring a public nuisance action. In this case, the
plaintiffs had not suffered damages different in kind from the
general public. Nevertheless, the court held that:
It would be an incongruous result . . . to say that a man engaged in
commercial fishing or clamming, and dependent thereon for his
livelihood, who may have had his business destroyed by the tortious
act of another, should be denied any right to recover for his
183
Burgess v. M/V Tamano, 370 F. Supp. 247 (D. Me. 1973).
Id. at 248.
185
Id. at 249.
186
Id.
187
Id. The court did, however, grant the motion with regard to claims brought
by a third plaintiff class, owners of motels, trailer parks, camp grounds, restaurants,
grocery stores, and similar establishments whose businesses depended on tourist trade,
with the exception of those owning shore property injured by the spill. These plaintiffs
asserted no “interference with their direct exercise of a public right” and could show no
“distinct harm” from the oil spill. Id. at 251.
188
Burgess, 370 F. Supp. at 250.
189
Id.
184
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pecuniary loss on the ground that his injury is no different in kind
from that sustained by the general public.190
The court gave no heed to the traditional justification for the
special injury rule (the fear of a multiplicity of frivolous
lawsuits) in rendering its decision, perhaps underscoring the
frailty of that argument. The court’s alteration of the scope of
the special injury rule has since been adopted by other
jurisdictions. 191
The Supreme Court of Hawaii has also altered its
treatment of the special injury rule. In 1982, the court decided
Akau v. Olohana Corp.,192 another class action suit in which the
plaintiffs sought to enforce alleged rights-of-way along oncepublic trails to the beach that crossed defendants’ property.193
The court identified two subclasses of plaintiffs, each of which
had lived or fished near the beach.194 The lower court had
denied the defendants’ motion to dismiss for failure to state a
claim, rejecting defendants' argument that the plaintiffs lacked
standing because their injury did not differ in kind from that
sustained by the general public.195
The Supreme Court affirmed the lower court’s ruling
and held that:
A member of the public has standing to sue to enforce the rights of
the public even though his injury is not different in kind from the
public’s generally, if he can show that he has suffered an injury in
fact, and that the concerns of a multiplicity of suits are satisfied by
any means, including a class action.196
The court found that the plaintiffs had suffered an
injury in fact, because not having access to the public rights-ofway impaired and in some instances prevented their use of the
190
Id.
See Golnay Barge Co. v. M/T Shinoussa, 841 F. Supp. 783, 785 (S.D. Tex.
1993); Louisiana ex rel. Guste v. M/V Testbank, 524 F. Supp. 1170, 1171 (E.D. La.
1981). In both cases the courts allowed commercial fishermen to bring claims for public
nuisance after oil-spills caused environmental damage to waterways even though the
plaintiffs could not show damages different in kind. See also In re Starlink Corn
Products Liab. Litig., 212 F. Supp. 2d 828, 848 (N.D. Ill. 2002) (holding that
commercial farmers had standing to bring a public nuisance claim against seed
companies that disseminated genetically modified corn that contaminated the entire
United States’ corn supply because the commercial corn farmers were affected
differently than the general public since they relied on the integrity of the corn crops
for their livelihood).
192
652 P.2d 1130 (Haw. 1982).
193
Id. at 1132.
194
Id.
195
Id. at 1132-33.
196
Id. at 1134.
191
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beach.197 Moreover, the court found that while its ruling had
expanded the standing for public nuisance, the other elements
of the claim would prevent the multiplicity of frivolous claims
feared by courts in absence of the traditional special injury
rule. In this case the court noted that a proper class action
would reduce such a risk.198 The court rightly observed that
injustice results when members of the public are denied “the
ability to enforce the public’s rights when they are injured….
The very essence of civil liberty certainly consists in the right
of every individual to claim the protection of the laws,
whenever he receives an injury.”199
The practice of limiting public nuisance claims – absent
a special injury – to public authorities was more appropriate at
the time of the law’s development than it is today. During the
time of the early English common law, “a harm to the public
order, decency, or morals was considered a crime against the
king.”200 Therefore, it followed that only the king could bring an
action against the perpetrator.201 Today, however, a harm to the
public order, decency or morals is a harm to the public, which,
as the Akau court noted, should have access to the courts to
redress the harm. Modern public nuisance laws should reflect
these changes.202 By reconfiguring the special injury rule, the
Burgess and Akau courts have allowed public nuisance law the
flexibility to encompass the shape and scope of modern society.
D.
Other Protections Against Frivolous Litigation
The multiplicity of frivolous litigation, cited as the
rationale for the special injury rule, does not threaten courts
when plaintiffs seek injunctions; this threat only emerges when
plaintiffs seek damages.203 Public nuisance laws protect rights
197
Akau, 652 P.2d at 1135.
Id. at 1134. (“Another reason for allowing liberal standing is that the
danger of a multiplicity of suits is greatly alleviated by a proper class action.”).
199
Id. (quoting Marbury v. Madison, 5 U.S. 87, 102 (1803)).
200
Id. at 1133.
201
See Gifford, supra note 54, at 819 (“History demonstrates that the core
purpose underlying public nuisance has been to assure that public authorities have a
legal remedy available to terminate conduct of a defendant that is violating a public
right and injuring the public safety, health or welfare.”).
202
Akau, 652 P.2d at 1133-34 (noting other areas of the law in which courts
have moved away from focusing on whether an injury is shared by the public, such as
taxpayer suits and actions challenging administrative decisions).
203
See RESTATEMENT (SECOND) OF TORTS § 821C cmt. j (1979) (arguing that
the reasons for maintaining a special injury rule are “much less applicable to a suit to
enjoin the public nuisance”). See also Tim E. Sleeth, Public Nuisance: Standing to Sue
198
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common to all. A private plaintiff who brings a suit for
damages does not necessarily look to protect a right shared by
him and his community as much as he looks to protect his own
interests by recovering for losses that he alone has suffered.
Paying damages – whether they are paid to a private or public
plaintiff 204– may have some deterrent effect on a defendant
responsible for a public nuisance. When a private plaintiff
seeks damages for a minor injury caused by a public nuisance,
however, such damages will likely do little to abate the public
nuisance and, therefore, will leave the courts subject to further
suits.205 Therefore, although the special injury rule may be
unduly strict when applied to private actions for damages, it
does serve a necessary screening function. On the other hand,
once an injunction abates a public nuisance, the nuisance
ceases to cause further damages to potential plaintiffs,
eliminating the courts' need to stringently screen equitable
actions. Furthermore, restricting private actions for damages
makes sense since, unlike equitable actions, they do not further
the purpose of public nuisance law by protecting interests
shared by community members.
In the absence of the special injury rule, proper
application of the procedural elements surrounding public
nuisance claims will help to eliminate potentially frivolous
lawsuits by private plaintiffs requesting injunctive relief
absent a special injury rule. First, in New York, a plaintiff
bringing an action for injunctive relief from an alleged public
nuisance must contend with a higher burden of proof than a
plaintiff seeking damages. A plaintiff seeking an injunction
must prove each element of a public nuisance claim by clear
without Showing “Special Injury”, 26 U. FLA. L. REV. 360, 366 (1973-74) (“Even where
an actual injury was recognized or the action was for abatement or injunction and the
multiplicity factor could not be relevant, the courts unhesitatingly followed the
established rules and refused to grant redress or relief.”); Antolini, supra note 67, at
889 (“The concern about burdensome multiplicity is applicable primarily, if not
exclusively, to damages suits, where the likelihood of duplicative litigation would
depend, in part, on the extent of the injury and the size of the initial award.”).
204
Courts agree that costs incurred by a municipality in the face of a public
nuisance are compensable with damages. See City of Flagstaff v. Atchinson, Topeka &
Santa Fe Ry. Co., 719 F.2d 322, 324 (9th Cir. 1983) (“Recovery [of damages] has also
been allowed where the acts of a private party create a public nuisance which the
government seeks to abate.”); United States v. Illinois Terminal R.R. Co., 501 F. Supp.
18, 21 (E.D. Mo. 1980) (“Recent federal court decisions reflect a growing recognition of
suits by government agencies under federal common law for the abatement of public
nuisances.”).
205
See Culhane & Eggen, supra note 163, at 327 (“Indeed, even if the
defendants were to assume all costs, the nuisance could continue.”).
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and convincing evidence rather than by a preponderance of the
evidence, the standard that typically applies in civil litigation.206
Judge Weinstein noted that this higher burden is appropriate
in equitable actions because “the interests at stake are deemed
more significant than ordinary.”207 Injunctive relief places a
burden not only on defendants, but also on courts, which bear
the responsibility of monitoring a defendant's compliance.208
Unlike the special injury rule, the clear and convincing
standard can deter frivolous litigation without simultaneously
undercutting the purpose of public nuisance law protecting the
public at large.209
Furthermore, as the Akau court suggested, the
procedural requirements of a class action can preclude
excessive litigation absent the special injury rule.210 Class
actions lend themselves well to public nuisance suits. Every
member of a community is a potential plaintiff since, by
definition of a public nuisance, each is harmed or potentially
harmed by the existence of a public nuisance.211 Moreover, class
actions ensure finality because “a judgment in a class action
consisting of the people actually injured will bind the members
who are all those allowed to sue.”212 Similarly, the procedural
bar of res judicata can also prevent multiple or trivial
litigations in the context of public nuisance cases as it does in
all areas of litigation.213
206
NAACP v. AcuSport, Inc., 271 F. Supp. 2d 435, 478 (E.D.N.Y. 2003) (“Many
of the cases in which plaintiffs have been required to prove a claim for public nuisance
by clear evidence involve applications for injunctive relief.”).
207
Id. at 479 (citing New York Pattern Jury Instruction 1:64 cmt., at 85). See
also California ex rel. Cooper v. Mitchell Bros’ Santa Ana Theater, 454 U.S. 90 (1982),
in which the Supreme Court held that California state law could require the
application of a beyond a reasonable doubt burden of proof, usually reserved for
criminal cases, when a plaintiff brings a public nuisance action for obscenity because of
the freedom of speech interests at stake in such actions.
208
FED. R. CIV. P. 65(d).
209
See supra note 197 and accompanying text.
210
Akau v. Olohana Corp., 652 P.2d 1130, 1134 (Haw. 1982) (“Another reason
for allowing liberal standing is that the danger of a multiplicity of suits is greatly
alleviated by a proper class.”). See also Panoff, supra note 52, at 711 (“Multiplicity of
suits can be discouraged by general requirements of standing in addition to the
procedural mechanisms of class actions.”).
211
RESTATEMENT (SECOND) OF TORTS § 821C cmt. j (1979) (noting “a
distinction between an individual suit for damages and a suit in behalf of the public or
a class action”).
212
Akau, 652 P.2d at 1134.
213
Save Sand Key, Inc. v. United States Steel Corp., 281 So. 2d 572, 575 (Fla.
App. 1973) (“[T]he increasing number of well-tried class actions tend to further limit
litigation because of the principles which inhere within the doctrine of res judicata.”).
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In addition to these procedural bars to excessive
litigation, there are the practical bars imposed by the nature of
our modern legal system. Most notably, the monetary burdens
associated with any litigation will likely prevent those
plaintiffs who have suffered minor damages from a public
nuisance from bringing an action for injunctive relief. 214 Given
the expense and time involved in bringing a lawsuit, a plaintiff
such as the NAACP is more likely to bring an action to enjoin a
public nuisance than an individual private citizen. The
NAACP, a nationally renowned organization, has substantial
monetary and legal resources at its dispense, making the
undertaking of such complex litigation more feasible for the
organization than it would be for the majority of private
citizens. Finally, the remedy itself, injunctive relief, would
simply dispense with much of the need for further private
actions. Once a private plaintiff enjoins a public nuisance, that
nuisance ceases to cause further damages that could give rise
to additional litigation.
Given these additional protections against frivolous
lawsuits, the effects of the special injury rule are simply
overbroad in the context of private actions for injunctive relief.
And the bar to litigation imposed by application of the special
injury rule is unnecessary in the face of the other procedural
and practical bars to excessive private actions for public
nuisance.
CONCLUSION
As illustrated by the unsatisfactory outcome of the
AcuSport case, the special injury rule unnecessarily hinders
the modern evolution of public nuisance law. While the special
injury rule has a long history dating back to the sixteenth
century, Oliver Wendell Holmes once rightly observed that "[i]t
is revolting to have no better reason for a rule of law than that
so it was laid down in the time of Henry IV. It is still more
revolting if the grounds upon which it was laid down have
vanished long since, and the rule simply persists from blind
214
Antolini, supra note 67, at 809 (arguing that a multiplicity of lawsuits
would never arise in the absence of a special injury rule “because of the practical
impediments to plaintiffs bringing such cases, including the rules on costs, which
‘generally fall short of making the plaintiff whole,’ the necessity to pay for counsel, the
out-of-pocket costs, the reluctance of lawyers to sue when damages are small, and the
risk of monetary loss even with a win on the merits”).
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imitation of the past.”215 The threat of excessive and trivial
lawsuits that spurred the development of the special injury
rule is not present in cases in which private plaintiffs seek
injunctive relief to abate a public nuisance, a relief that would
benefit an entire community and, in itself, thwart the risk of
excessive litigation.
As demonstrated by the outcome of AcuSport, barring
access to injunctive relief via the special injury rule may in fact
result in additional litigation. This pays a disservice to both the
public who look to the law for protection, and the courts who
look to the rule to decrease the number of lawsuits arising from
a given nuisance. The injustice of the incongruous results that
the special injury rule can produce becomes clear in the face of
cases such as AcuSport. But for the AcuSport court’s adherence
to the special injury rule, the NAACP may have won its
injunction against the handgun industry, making the State of
New York safer not only for NAACP members but for all
citizens. As other procedural and practical elements of our legal
system can sufficiently siphon the trivial actions thought to go
hand in hand with a private action for public nuisance, the
special injury rule no longer serves the same practical or
doctrinal purposes it may have once served. States such as
New York should follow the lead of other jurisdictions that
have already altered their applications of the special injury
rule and abandon this element of the public nuisance tort for
private plaintiffs seeking injunctive relief.
Megan O’Keefe†
215
Oliver W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 469 (1897).
B.A., Washington University; J.D. candidate 2005, Brooklyn Law School.
The author would like to thank her friends and family for all of their support as well as
the editors of the Brooklyn Law Review, especially Ryan Mensing , Chris Gorman, and
Anne Edinger.
†
2/16/2005 2:38:18 PM
The Future of Innovation
TRADE SECRETS, PROPERTY RIGHTS, AND
PROTECTIONISM—AN AGE-OLD TALE
*
Innovation makes enemies of all those who prospered under the old
regime, and only lukewarm support is forthcoming from those who
would prosper under the new. Their support is indifferent partly
from fear and partly because they are generally incredulous, never
really trusting new things unless they have tested them by
experience.1
INTRODUCTION
The forces that Machiavelli described over half a
millennium ago continue to shape our world of innovation
Through
recent
common-law
and
statutory
today.2
developments favoring industry, the power of the old is holding
back the development of the new. Although the Constitution
gives the federal government the power to control these forces
for the betterment of society,3 the current trade secret
framework concentrates too much power in the hands of
industry, threatening innovation by allowing industrialists to
“steer evolution as it benefits them.”4
*
© 2005 Michael P. Simpson. All Rights Reserved.
NICCOLÒ MACHIAVELLI, THE PRINCE 17 (W.W. Norton 2d ed. 1992) (1515).
2
See id.
3
See U.S. CONST. art. I, § 8, cl. 8. The Constitution gives Congress the power
“[t]o promote the Progress of Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective Writings and
Discoveries[.]” Id. The Supreme Court has repeatedly articulated that the policy goals
surrounding both copyright and patent law are to benefit society, not industry. See,
e.g., Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (“The
immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative
labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the
general public good.”); Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) (“The sole
interest of the United States and the primary object in conferring the monopoly lie in
the general benefits derived by the public from the labors of authors.”).
4
LAWRENCE LESSIG, THE FUTURE OF IDEAS 264 (2001) (“That power is not
within our tradition. It is not what has built the America we admire.”).
1
1121
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This Note argues that developments in the area of trade
secret law have swung the pendulum too far in the direction of
industry. By rooting trade secret law in an intellectual property
based rationale, both the common law and recent
Congressional enactments have expanded trade secret law well
beyond its original parameters. This expansion is unfortunate,
both from a theoretical and practical vantage point: aside from
drawing false analogies to patent and copyright law, this new
regime is causing society to suffer by unduly constricting the
spread of useful and innovative ideas. Instead, this Note
contends that the pendulum must swing back in the favor of
society in order for trade secret law to serve the
constitutionally mandated policy goals that intellectual
property laws purport to serve.5 To achieve this objective, this
Note proposes two solutions that may help to equilibrate
industry’s interests with those of society.
This Note proceeds as follows: Part I summarizes the
current law of trade secrets. Part II illustrates how the
pendulum has swung too far in the favor of industry, with Part
II.A outlining the Supreme Court’s adoption of a traditional
intellectual property rationale and Part II.B explaining the
reasoning and legislative history behind the Economic
Espionage Act (EEA), a statute that imposes criminal sanctions
for the theft of trade secrets. Part III illustrates some of the
major deficiencies in the law, both theoretical and practical,
and utilizes practical examples to demonstrate the problems in
the current trade secret framework that have been exacerbated
by the EEA. Finally, Part IV proposes two solutions to help
swing the pendulum back towards the constitutionally
mandated policy goal of benefiting society.
I.
TRADE SECRETS: BACKGROUND
A.
Fundamentals of Trade Secret Law
The central purpose of trade secret law is to protect
secret and commercially valuable information from being
misappropriated. Just about everyone has heard of the famous
formula for Coca-Cola,6 or the eleven secret “herbs and spices”
5
See U.S. CONST. art. I, § 8, cl. 8; see also supra text accompanying note 3.
See Coca-Cola Bottling Co. of Shreveport, Inc. v. Coca-Cola Co., 107 F.R.D.
288, 289 (D.C. Del. 1985).
6
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1123
that make KFC’s chicken so tasty.7 Trade secret law protects
important formulas like these as well as other commercially
valuable information.
Although trade secret doctrines vary throughout
jurisdictions, there is a general consensus that to establish
liability for trade secret misappropriation, a plaintiff must
show that the information at issue is a “trade secret” 8 and that
the defendant acquired, used, or disclosed the information in
breach of confidence or by other improper means.9
There are three basic requirements for something to
qualify as a trade secret: the object at issue must be
“information”;10 that information must confer a competitive
value because it is secret;11 and that information must be
maintained under reasonable safeguards in order to assure
secrecy.12 The “information” requirement is extremely broad in
scope. In contrast to other traditional intellectual property
fields, such as copyrights and patents, trade secrets can protect
technical and non-technical information, expression or ideas,
and even facts. Its protective cloak has been extended to cover
such things as financial information, methods of doing
business, customer lists, supplier lists, future marketing
tactics, sales and product plans, employee names, and even
phone numbers.13
The requirement that “the information be of economic
value because it is secret” merely requires that the information
confer a potential economic advantage to the holder over
competitors. Almost anything can qualify provided that it helps
7
See Gina White, Note, Intellectual Property—Trade Secret Law— Is the
Arkansas Supreme Court Following Other Jurisdictions Down the Wrong Road in
Analyzing Combination Trade Secrets?, 25 U. ARK. LITTLE ROCK L. REV. 407, 407 n.2
(citing About KFC, Original Recipe Is Still a Secret, at http://www.kfc.com/about/
secret.html (last visited April 20, 2005)).
8
Forty-two states and the District of Columbia have adopted the Uniform
Trade Secret Act’s (UTSA) definition of a trade secret. Although New York and a few
others have not, the common-law is very similar to the nuts and bolts of trade secret
law. See C. Rachal Pugh, Nondisclosure Agreement Protected Confidential Information
Which Did Not Qualify for Trade Secret Protection, 17 BERKELEY TECH. L. J. 231, 235
(2002).
9
See UNIF. TRADE SECRETS ACT § 1(1), 14 U.L.A. 433 (1985).
10
See id. at § 1(4). This is a rather broad requirement and one of the major
benefits of trade secret law as opposed to copyright, which only protects expressions,
not ideas, and patents, which require novelty.
11
See 1 ROGER M. MILGRIM ON TRADE SECRETS § 1.02 (1998).
12
Robert G. Bone, A New Look at Trade Secret Law: Doctrine in Search of
Justification, 86 CAL. L. REV. 241, 248 (citing MILGRIM, supra note 11, §§ 1.03-1.04).
13
Id. (citing 1 MILGRIM, supra note 11, § 1.09).
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to create commercial value.14 In fact, that information does not
even need to be in use to be protected. The Restatement (Third)
of Unfair Competition15 (“Restatement Third”) protects trade
secrets that can potentially be used.16 This means that it does
not require actual and continuous “use” by the creator to
qualify as a trade secret—for instance, results of research that
are not used directly in one’s business may qualify as trade
secrets under this definition.
“Secrecy” has been defined by courts as any information
that is not known or easily ascertainable through proper means
by a firm’s competitors. “Proper means” commonly include
things such as reverse engineering (obtaining a finished
product and taking it apart in an attempt to discover its secret
of operation) or independent discovery through factual
knowledge already in the public domain.
The final requirement to qualify as a trade secret—
reasonable precautions to maintain the secrecy—is adjudged
according to an objective “reasonableness” standard. Although
a trade secret holder need not take all possible precautions to
satisfy this standard, many companies go to great lengths to
assure this element is met so that the adequacy of their
measures will not be second-guessed in court. To protect their
interests, companies may take various steps, such as:
disclosing the secret only under a confidentiality agreement
and on a need-to-know basis, constructing fences or walls to
block the public’s view, instituting a system of building
security, using passwords, requiring entry and exit interviews
of employees, and restricting employee access to sensitive
areas.17
Once something qualifies as a trade secret, a
defendant’s liability turns on whether the defendant acquired,
used, or disclosed the information by improper means.18
14
See 1 MILGRIM, supra note 11, § 1.09 (listing several different categories
that have been protected).
15
RESTATEMENT (THIRD) OF UNFAIR COMPETITION §§ 39-45 (1995).
16
See Patricia A. Meier, Note, Looking Back and Forth: The Restatement
(Third) of Unfair Competition and Potential Impact on the Texas Trade Secret Law, 4
TEX. INTELL. PROP. L. J. 415, 455 (1995-1996).
17
See Bone, supra note 12, at 249; Vincent Chiappetta, Myth, Chameleon or
Intellectual Property Olympian? A Normative Framework Supporting Trade Secret
Law, 8 GEO. MASON L. REV 69, 77 (1999).
18
Improper means may include: breach of contract, violation of a confidential
relationship, bribery, theft, misrepresentation , and other wrongs. See Kewanee Oil Co.
v. Bicron Corp., 416 U.S. 470, 475-76 (1974); UNIF. TRADE SECRETS ACT § 1(1) (1985).
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1125
“Improper” has been defined by the Restatement Third to
include
“theft,
fraud,
unauthorized
interception
of
communications, inducement of or knowing participation in a
breach of confidence, and other means either wrongful in
themselves or wrongful under the circumstances of the case.”19
There is, however, much room for judicial discretion here,
especially when the conduct seems unethical.20 Yet a proper
acquisition, such as independent creation, reverse engineering,
or acquisition from a public source, is always an absolute
defense.21
Even once all of these elements are established, the
owner generally does not receive a monopoly in the idea or
process that encompasses the secret; instead, trade secret law
only protects the secret from being discovered improperly.22 If
the plaintiff can establish liability, the court usually issues an
injunction and follows with a monetary award of provable
damages.23
The civil law of trade secrets has been codified under a
number of different uniformed schemes—most recently, the
Restatement Third,24 and Uniform Trade Secret Act (UTSA).25
An owner of a trade secret can also pursue federal criminal
sanctions against a person who misappropriates his/her secret
ideas.
19
See UNIF. TRADE SECRETS ACT § 43 (1985).
See E.I. duPont deNemours Powder Co. v. Christopher, 431 F.2d 1012,
1017 (5th Cir. 1970) (“Improper will always be a word of many nuances, determined by
time, place, and circumstances. We therefore need not proclaim a catalogue of
commercial improprieties.”).
21
These exceptions are not explicitly listed in the UTSA; however, courts
have found them to be implied under the element of secrecy. See Chiappetta, supra
note 17, at 78 n.53.
22
However, it is the contention of this Note that in certain circumstances
trade secret owners are in fact granted a de facto monopoly. This situation occurs most
often when an invention is difficult to reverse engineer, such as an innovation
involving chemical compounds. See infra Part III.B.
23
See Chiappetta, supra note 17, at 79. It is important to take note that this
is merely a general overview of trade secret law, meant only to provide the necessary
background information for the discussion that is to follow. Trade secret law can be a
highly nuanced and varying form of law from state to state, so it is important for a
practitioner to perform an intensive search through jurisdictional case law where the
litigation is to take place. See MILGRIM, supra note 11, §1.01.
24
RESTATEMENT (THIRD) OF UNFAIR COMPETITION §§ 39-45 (1995).
25
See UNIF. TRADE SECRETS ACT § 1(1) (1985).
20
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The Economic Espionage Act of 1996: Federal Criminal
Sanctions for Trade Secret Theft
In addition to civil liability, the EEA created federal
criminal liability for anyone caught stealing a trade secret.26
While trade secret law was developing on the civil side, it was
argued that a large gap was forming in the effectiveness of
criminal laws protecting the investment of industry in research
and development.27 As the technological age arrived, industrial
espionage, also referred to as “economic espionage,” was
reportedly on the rise. Although industrial espionage and the
stealing of trade secrets had transpired for hundreds of years,28
it was argued that the stakes had never been so high29 and the
means never so elaborate.30 In response, Congress passed the
EEA.31
Liability under section 1831, entitled Economic
Espionage, requires that the theft of trade secrets “benefit a[]
foreign government, foreign instrumentality, or foreign agent . .
. .”32 The term “misappropriation of trade secrets” covers (1)
outright theft,33 (2) unauthorized duplication,34 (3) trafficking in
26
Economic Espionage Act, 18 U.S.C. §§ 1831-1839 (2000).
James H.A. Pooley et al., Understanding the Economic Espionage Act of
1996, 5 TEX. INTELL. PROP. L. J. 177, 178 (1997).
28
See JACQUES BERGIER, SECRET ARMIES: THE GROWTH OF CORPORATE AND
INDUSTRIAL ESPIONAGE 3 (Harold J. Salemson trans., 1969) (telling the popular account
of the Chinese princess that hid silk worms in her hat 1,500 years ago, thus supplying
the secret of silk manufacture to India).
29
See Robert C. Van Arnam, Comment, Business War: Economic Espionage
in the United States and the European Union and the Need for Greater Trade Secret
Protection, 27 N.C. J. INT’L L. & COM. REG. 95, 97–98 nn.26-28 (2001). The estimated
loss by the top U.S. companies due to industrial espionage by foreign nations was
estimated to be $45 billion in 2001. The number of jobs lost to industrial spying was
estimated at 6 million. The incidents usually take place between the economically
competitive nations, such as, China, the United States and the member nations of the
European Union. Id.
30
Id. at 99 (“[T]he French intelligence agency recently disclosed that it had
bugged hotel rooms and the first-class cabins of Air France jets and substituted spies
for flight attendants to eavesdrop on visiting foreign executives.”).
31
Economic Espionage Act, Pub. L. No. 104-294, 101(a), 110 Stat. 3488-3490
(1996) (codified at 18 U.S.C. §§ 1831-1839 (2000)).
32
Economic Espionage Act, 18 U.S.C. § 1831(a) (2000).
33
18 U.S.C. § 1831(a)(1) (2000) (“[S]teals, or without authorization
appropriates, takes, carries away, or conceals, or by fraud, artifice, or deception obtains
a trade secret . . . .”).
34
18 U.S.C. § 1831(a)(2) (2000) (“[W]ithout authorization copies, duplicates,
sketches, draws, photographs, downloads, uploads, alters, destroys, photocopies,
replicates, transmits, delivers, sends, mails, communicates, or conveys a trade
secret[.]”).
27
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stolen trade secrets,35 (4) attempted theft, duplication, or
trafficking,36 and (5) conspiracy to commit any theft,
duplication, or trafficking.37 The EEA also imposes a scienter
requirement.38
Section 1832, entitled Theft of Trade Secrets, is aimed
at domestic thieves.39 It is essentially the same as section 1831,
but includes three additional elements: (1) the intended benefit
realized must be economic in nature;40 (2) the thief must intend
or know that the offense will injure the rightful owner;41 and (3)
the stolen information must be “related to or included in a
product produced for or placed in interstate or foreign
commerce.”42
Because one of the major motivating forces behind the
passage of the EEA was foreign acts of industrial espionage,43
penalties are commensurately harsher for someone who
intentionally or knowingly stole a trade secret to “benefit any
foreign government, foreign instrumentality, or foreign agent.”44
II.
THE CURRENT STATE OF TRADE SECRET LAW: AN
INTELLECTUAL PROPERTY RATIONALE
The current state of trade secret law, as represented by
the seminal U.S. Supreme Court decisions of Kewanee Oil Co.
v. Bicron Corp.45 and Ruckelshaus v. Monsanto Co.,46 and
embodied in the Restatement Third, is a framework that draws
35
18 U.S.C. § 1831(a)(3) (2000) (“[R]eceives, buys, or possesses a trade secret,
knowing the same to have been stolen or appropriated, obtained, or converted without
authorization . . . .”).
36
18 U.S.C. § 1831(a)(4) (2000) (“[A]ttempts to commit any offense described
in any of paragraphs (1) through (3) . . . .”).
37
18 U.S.C. § 1831(a)(5) (2000) (“[C]onspires with one or more other persons
to commit any offense described in any of paragraphs (1) through (3), and one or more
of such persons do any act to effect the object of the conspiracy . . . .”).
38
18 U.S.C. § 1831(a) (2000).
39
18 U.S.C. § 1832 (2000).
40
18 U.S.C. § 1832 (2000) (noting defendant must intend to convert trade
secret to economic benefit of someone other than owner).
41
18 U.S.C. § 1832(a) (2000) (indicating defendant must intend or know
threat will injure owner of trade secret).
42
18 U.S.C. § 1832(a) (2000).
43
See 142 CONG. REC. S 12,211-12 (1996) (discussing the failure of the
current law to ensure the safety of corporations’ valuable research and development
from foreign acts of industrial espionage); see also H.R. REP. NO. 104-788, at 6 (1996).
44
18 U.S.C. § 1831 (2000).
45
416 U.S. 470 (1974).
46
467 U.S. 986 (1984).
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from property rights47 rationale akin to that supporting
copyright and patent law. Although this modern construct is
vastly different than the early common law’s Lockean
conception of trade secret law, this evolution did not take place
overnight. The process was incremental—trade secret law’s
original foundation was slowly whittled away and eventually
replaced by economic policy goals commonly articulated for
traditional forms of intellectual property, i.e., copyright and
patent law.
A.
The Current State of Trade Secret Law: From Kewanee
to Monsanto—the Move to a Property Rights Framework
and a Traditional Intellectual Property Rationale
Kewanee and Monsanto are seminal decisions in trade
secret jurisprudence that represent the law’s current rooting in
an intellectual property rights regime.
In Kewanee, the Court had to decide whether Ohio’s
trade secret laws were void under the Supremacy Clause
because they stood as an obstacle to the execution of the
48
purposes and objectives of federal patent laws. The petitioner,
Harshaw Chemical Co. (Harshaw), developed certain processes
that aided in the growth of a 17-inch synthetic crystal that was
useful in the detection of ionizing radiation. The respondents
were former employees of Harshaw who had signed agreements
not to disclose trade secrets obtained as employees. They left
Harshaw and joined the newly created Bicron Corp. (Bicron), a
competitor. Soon after, Bicron also grew a 17-inch crystal.
Harshaw brought a diversity action seeking injunctive relief
and damages for misappropriation of trade secrets.49 The
District Court, applying Ohio trade secret law, granted a
permanent injunction.50 The Court of Appeals reversed on the
ground that Ohio’s trade secret law conflicted with federal
47
The term “property right” is generally used to describe a package of
distinct entitlements granted to an individual, sometimes referred to as a “bundle of
rights.” Property involves legal relationships “among people regarding control and
disposition of valued resources.” JOSEPH WILLIAM SINGER, INTRODUCTION TO PROPERTY
2 (2001). When someone is said to have a “property right” in something, the legal
implications and consequences can be quite different than if their interest were
protected by contract or tort law. This distinction will be explored in greater detail
throughout this Note.
48
Kewanee, 416 U.S. at 470.
49
Id.
50
Id.
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patent laws.51 Since Ohio used the same trade secret definition
adopted by the Restatement (First) of Torts and used by a
majority of states at the time, the Supreme Court essentially
held the fate of trade secret law in its grasp.
Holding that Ohio’s trade secret law was not preempted
by the federal patent law, the Court articulated a rationale for
trade secret law that was synonymous with patent and
copyright law. Although it stated two policy goals—“[t]he
maintenance of standards of commercial ethics and the
encouragement of invention”52—the incentive-based policy
argument of encouraging innovation won the day.53 The Court
in Kewanee adopted a policy rationale for trade secrets
analogous to the economic rationale that supported limited
monopolies in copyrights and patents.54 Essentially, trade
secrets were believed to enhance the incentive to create,
thereby benefiting society.
Following Kewanee, the Court in Monsanto.55 further
affirmed that trade secret law was now being viewed as a form
of intellectual property. In Monsanto, an applicant for
registration of a pesticide brought suit to avoid the datadisclosure requirement created by the Federal Insecticide,
Fungicide, and Rodenticide Act of 1972 (FIFRA).56 Monsanto
sought injunctive and declaratory relief alleging that FIFRA
effected a “taking” of property without just compensation in
violation of the Fifth Amendment.57 The trial court declared the
challenged provisions of the act unconstitutional and
permanently enjoined the EPA from implementing or enforcing
it.58 The Supreme Court, in reviewing the trial court’s decision,
did not hold FIFRA unconstitutional, but did hold that
Monsanto’s trade secret right was a “property right protected
by the Takings Clause of the Fifth Amendment.”59
51
Kewanee Oil Co. v. Bicron Corp. et al., 478 F.2d 1074, 1086 (6th Cir. 1972).
Kewanee, 416 U.S. at 481.
53
See Bone, supra note 12, at 262 (citing Kewanee, 416 U.S. at 482, 484;
American Can Co. v. Mansukhani, 742 F.2d 314, 329 (7th Cir. 1984); RICHARD POSNER,
ECONOMICS OF JUSTICE 244 (1981); Christopher Rebel J. Pace, The Case for a Federal
Trade Secrets Act, 8 HARV. J.L. & TECH. 427, 435-42 (1995)).
54
See 416 U.S. at 481 (stating that one of the broadly stated policies behind
protecting secret information was to motivate creation).
55
467 U.S. 986 (1984).
56
Federal Environmental Pesticide Control Act of 1972, 86 Stat. 973 (1972).
57
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 986 (1984).
58
Monsanto Co. v. Acting Adm’r, U.S. EPA, 564 F. Supp. 552 (E.D. Mo.
1983).
59
Monsanto, 467 U.S. at 1003-04.
52
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The Court found many justifications for granting
Monsanto a property right in its secret formula. First, the
Court utilized the Lockean concept of natural rights to support
its contention. Citing FIFRA’s legislative history, the Court
pointed to the fact that Congress recognized that data
developers had a “proprietary interest”60 in their data and that
they were “‘entitled’ to ‘compensation’ because they ‘have legal
ownership of the data.’”61 The Court argued that this
“perception of trade secrets as property is consonant with a
notion of ‘property’ that extends beyond land and tangible
goods and includes the products of an individual’s ‘labour and
invention.’”62 Essentially, the Court was arguing that Congress
intended the information to be protected as property as a
reward for hard work. The Court utilized the Lockean concept
that labor created rights in “property” to strengthen its
argument that trade secret holders should have property
rights.
In addition, the Court reasoned that trade secrets had
characteristics synonymous with tangible forms of property. As
Justice Blackmun, writing for the majority, explained: “A trade
secret is assignable. A trade secret can form the res of a trust,
and it passes to a trustee in bankruptcy.”63 Thus, he concluded
that “[t]rade secrets have many of the characteristics of more
tangible forms of property.”64 As a result, the Court held that
Monsanto had a property right that was protected by the
Takings Clause of the Fifth Amendment.65
The Court’s broad definition of property rights in trade
secrets protected industry in several respects, most notably in
avoiding making disclosures to regulatory agencies when the
product of that disclosure was deemed a trade secret. Most
recently, in Phillip Morris, Inc. v. Reilly,66 cigarette
manufacturers claimed that the Massachusetts Disclosure Act
(MDA),67 which required them to disclose their ingredient lists
to the state, constituted an unconstitutional taking of their
property. Citing Monsanto, the cigarette manufacturers
60
61
62
63
64
65
66
67
Id. (quoting S. Rep. No. 95-334, at 32 (1977)).
Id. (quoting H. R. Conf. Rep. No. 95-1560, at 29 (1978)).
Id. at 1003.
Id. at 1002.
Monsanto, 467 U.S. at 1002.
Id. at 1003-04
312 F.3d 24 (1st Cir. 2002).
See MASS. GEN. LAWS ch. 94, § 307B (2002).
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contended that their ingredient lists were trade secrets and
hence property protected by the Takings Clause. They argued
that mandatory public disclosure of those trade secrets
essentially destroyed their value, thereby effecting a taking.
The First Circuit agreed, reiterating the property concept set
forth in Monsanto repeatedly throughout the decision. The
court reasoned that “[s]pecific laws simply cannot destroy
property interests.”68 It was clear to the court “that the tobacco
companies ha[d] a property interest in their trade secrets”69 and,
since the MDA transformed their “private property into public
property without compensation . . .[,]”70 it was a clear taking
under the Fifth Amendment.
Beyond these judicial decisions, the Restatement Third
codifies trade secret law’s relatively recent shift to a property
regime. It recognizes that trade secret law has adopted the
policy goals for copyright and patent law, explaining that trade
secret protection is justified “as a means to encourage
investment in research by providing an opportunity to capture
the returns from successful innovations.”71
This incentive-based argument reasons that protecting
knowledge and ideas encourages the creation of more such
innovations, thereby benefiting society as a whole.72 Since
knowledge and ideas are intangible objects that are both nonrivalrous (i.e., one person’s consumption does not reduce the
availability of the good to others), and non-excludible (i.e., it is
difficult to exclude others from enjoying their benefits),
reproduction of an idea is potentially limitless. However,
researching and developing new ideas is very expensive. Hence,
economic scholars argue that protection is necessary to prevent
people from free-riding off of others’ valuable investment of
time and money. This incentive-based argument has supported
copyright73 and patent law74 for quite some time and is the
principal rationale supporting trade secrets today.75
68
Phillip Morris, 312 F.3d at 32 (emphasis added).
Id. at 32-33 (emphasis added).
70
Id. at 32 (emphasis added) (citing Webb’s Fabulous Pharmacies, Inc. v.
Beckwith, 449 U.S. 155, 164 (1980)).
71
RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 39 cmt. a (1995).
72
See Bone, supra note 12, at 262 (citing ROBERT COOTER & THOMAS ULEN,
LAW AND ECONOMICS 112-16, 135-49 (1988)).
73
See generally William M. Landes & Richard Posner, An Economic Analysis
of Copyright Law, 18 J. LEG. STUD. 325-63 (1989) (applying the rationale to copyright
law).
69
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By importing the policy rationale from patent and
copyright law, trade secret law implicitly adopts their
restrictions as well. That is to say, if the law of trade secrets
were to restrict innovation it would contradict its own policy
goals and frustrate the goals of patent law as well. It would
further be a violation of the Supremacy Clause. The
Constitution gives Congress the power to “promote the
Progress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries[.]”76 The Supreme Court
has repeatedly articulated that the purpose and objective of
federal patent law is to benefit society by stimulating and
encouraging innovation. As far back as 1832, in Grant v.
Raymond,77 the Court explicitly stated this policy goal:
[I]t cannot be doubted that the settled purpose of the United States
has ever been, and continues to be, to confer on the authors of useful
inventions an exclusive right in their inventions for the time
mentioned in their patent. It is the reward stipulated for the
advantages derived by the public for the exertions of the individual,
and is intended as a stimulus to those exertions.78
Inventors are given patents, or property rights, in their
inventions as a reward “for the advantages derived by the
public,”79 and to stimulate more inventions for the public good.
If trade secret law frustrated this purpose it would be void
under the Supremacy Clause. The Court’s seminal decision in
Kewanee held that Ohio’s trade secret law did not frustrate this
purpose. In doing so, however, it moved trade secret law
towards the intellectual property regime. Next, Monsanto
protected trade secrets as property under the Fifth
Amendment’s Takings Clause. The Restatement Third
reinforces the fact that trade secrets are now characterized as a
74
See generally Kenneth W. Dam, The Economic Underpinnings of Patent
Law, 23 J. LEG. STUD. 247 (1994) (applying the rationale to patent law)).
75
See Bone, supra note 12, at 262 (citing Kewanee, 416 U.S. at 482, 484;
American Can Co. v. Mansukhani, 742 F.2d 314, 328 (7th Cir. 1984)); RICHARD
POSNER, ECONOMICS OF JUSTICE 244 (1981); Christopher Rebel J. Pace, The Case for a
Federal Trade Secrets Act, 8 HARV. J.L. & TECH. 427, 435-42 (1995)).
76
See U.S. CONST. art. I, § 8, cl. 8.
77
31 U.S. 218 (1832).
78
Id. at 241-42.
79
Id.
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form of intellectual property with liability centered on a
violation of the owner’s “property right.”80
These most recent codifications further demonstrate
that this new direction has shifted the law to the benefit of
industry. In several respects, the Restatement Third has
expanded trade secret protection beyond the safeguards
originally developed in the Restatement (First) of Torts. First,
the actual and continuous “use” requirement in the
Restatement (First) of Torts81 has been expanded to include
“potential use,” protecting the results of research that are not
directly used by the business.82 Second, it defines the
misappropriation element more broadly than in previous
formulations of the law. No longer is use or disclosure of the
trade secret required for liability; merely acquiring the trade
secret “improperly” is enough to establish liability.83 This
expansion has proven to be particularly valuable for industries
characterized by rapid and often ephemeral technological
developments, such as computers, software, biotechnology, and
pharmaceuticals.84
But this is not the whole story. As the law expanded on
the civil side, and the conceptualization of trade secrets shifted
towards that of traditional forms of intellectual property,
Congress passed the EEA, a law that greatly increased the
safeguards afforded to industry.
B.
The Economic Espionage Act of 1996: A Tool of Industry
As the common law offered greater protection to
industry, Congress further bolstered these protections by
enacting the EEA. This recent evolution in the law of trade
secrets has supplied owners with a very powerful weapon to
guard their intangible interests. The passing of the EEA helped
80
RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 39 cmt. b (This “property
rationale emphasizes the nature of the appropriated information, especially its value
and secrecy.” ). Furthermore, “[c]ommentators have argued that the [UTSA], in force in
42 states, adopts a view of trade secrets as property.” Mark A. Lemley, Property,
Intellectual Property, and Free Riding, 83 TEX. L. REV. 1031, 1042 n.45 (2005) (citing
Lynn C. Tyler, Trade Secrets in Indiana: Property vs. Relationship, 31 IND. L. REV. 339,
339 (1998)).
81
See RESTATEMENT (FIRST) OF TORTS § 757 (1939).
82
See Meier, supra note 16, at 455.
83
See RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 40, cmt. b (1995).
84
Meier, supra note 16, at 454-55 (citing Holly Emrick Svetz, Note, Japan’s
New Trade Secret Law: We Asked for It—Now What Have We Got?, 26 GEO. WASH. J.
INT’L L. & ECON. 413, 414 (1992)).
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change trade secrets from what was once thought of as a
supplemental system, catching ideas and inventions that fell
through the grasps of patent law, into a system grounded in
property rights that constricts the flow of ideas through
criminal sanctions. It has effectively swung the pendulum
directly towards the interests of industry.
Despite its lofty goals, the EEA is a bill that was clearly
sponsored by, and passed to benefit, big business. In the early
1990s, big business created an uproar over the large amounts
of money lost due to industrial espionage. A representative,
speaking on behalf of the bill, articulated these concerns,
stating that “American companies have faced the fact,
unfortunately, that our laws were written so long ago that they
do not deal with the protection of ideas in the way that they
should . . . .”85 This view was bolstered by the reported rise in
trade secret thefts by other countries.
The effect of these crimes, it was believed, endangered
the country’s economic prosperity.86 Making matters worse,
Congress felt the existing system was inadequate to curtail
these economic losses. Prior to the EEA’s passage, federal
prosecutors had no right to pursue someone under a theft of
trade secret action, and state schemes were far more restrictive
than the broad new act because most state civil schemes
required the violator to acquire the trade secret through
“improper means.”87
Sharp increases in cybercrime (crimes where computers
play an intricate role) also presented analytical difficulties.88
The earlier statutes that prosecutors had at their disposal (i.e.,
wire fraud, mail fraud, and trespass) were said to be
inadequate to provide protection.89 It was difficult for
85
142 CONG. REC. H 12137-01 (daily ed. Sept. 28, 1996) (statement of Rep.
Lofgren).
86
See Geraldine Szott Moohr, The Problematic Role of Criminal Law in
Regulating Use of Information: The Case of the Economic Espionage Act, 80 N.C. L.
REV. 853, 864 n.49 (2002). Moohr states that upon signing H.R. 3723 President William
J. Clinton confirmed “that the ultimate purpose of the EEA is to safeguard the nation’s
security and economic strength by protecting the intellectual capital of American
businesses.” Id.
87
See Aaron Burstein, A Survey of Cybercrime in the United States, 18
BERKELEY TECH. L.J. 313, 326 (2003).
88
See id. at 315. (“Computer-based activities simply began to fall outside the
act or mens rea requirements (or both) of mail and wire fraud, theft, and trespass. The
result was ‘an unsatisfying, result-oriented jurisprudence.’”).
89
This is exemplified by the decision in United States v. Brown, 925 F.2d
1301 (10th Cir 1991).
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prosecutors to pursue criminal liability under the then-current
law because they needed to “prove that the defendant’s actions
deprived the owner of its property,”90 which proved quite
challenging. For example, in the United States v. Seidlitz91 a
former military contractor stole a password to download
valuable software from his former employer. The Fourth
Circuit quickly concluded that the software was property.92 Yet
Seidlitz merely copied the software, so his conduct did not
actually deprive the employer of its copy of the software. As the
federal wire fraud statute required a deprivation of another’s
property, it was unclear how Seidlitz’s conduct could qualify as
such.93 Faced with these difficulties, “courts tended to reach
results-oriented outcomes.” 94
Against this backdrop, the EEA breezed through
Congress,95 providing harsh penalties for those caught stealing
trade secrets. By providing criminal relief, Congress helped
move the basis for trade secret misappropriation liability
deeper into the realm of property than ever before. In contrast
to existing laws, the EEA liability scheme was steeped in a
property rights approach. Simply proving that the defendant
obtained the information through means that were
unauthorized by the owner was enough.96
Because the actus reus and mens rea elements are much
easier to meet under the EEA than other statutes, such as the
Copyrights Act,97 prosecutors are more likely to use the EEA in
many cases where the defendant’s alleged actions result in
numerous overlapping federal charges. For example, under the
[D]efendant John Brown escaped prosecution under the National Stolen
Property Act (NSPA) because Brown’s former employer had shipped the
alleged trade secrets, a computer program and software manuals from a
former employer, to Brown on backup tapes that Brown himself owned. The
Tenth Circuit affirmed dismissal of the case, holding that the NSPA “applies
only to physical ‘goods, wares or merchandise’ that were themselves ‘stolen,
converted or taken by fraud.’”
Burstein, supra note 87, at 324 (internal citations omitted).
90
See Burstein, supra note 87, at 315.
91
589 F.2d 152 (4th Cir. 1978).
92
Id. at 160 (concluding that the information was “property” under the
federal wire fraud statute).
93
See Orin S. Kerr, Cybercrime’s Scope: Interpreting “Access” and
“Authorization” in Computer Misuse Statutes, 78 N.Y.U. L. REV. 1596, 1610 (2003).
94
Id. at 1611.
95
See Joseph F. Savage, Jr. et al., Trade Secrets: Conflicting Views of the
Economic Espionage Act, 15 CRIM. JUST. 10, 11 (2000).
96
Burstein supra note 87, at 323–24.
97
Id. at 325–26.
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EEA, there is no need to prove copyright infringement, which
can often prove difficult.98 Furthermore, the definition of “theft”
of a trade secret under the EEA is broader than the definition
used in the Restatement Third, or UTSA. Both sections 1831
and 1832 allow for five categories of theft: (1) outright theft; (2)
unauthorized duplication; (3) trafficking in stolen information;
(4) attempting to commit these three offenses; and (5)
conspiring to commit these three offenses.99 Section 1832 does
not even require the existence of an actual trade secret under
the attempt and conspiracy theories.100 Due to these lax
standards, successful prosecutions under the EEA have been
rapidly increasing in the last few years.101
Ultimately, developments in the common law, evidenced
by Kewanee, Monsanto, and the Restatement Third, along with
the passage of the EEA, leave no doubt that trade secret
protection has been broadly extended. Furthermore, it is quite
apparent that this expansion has benefited industry. Trade
secret’s original intellectual foundation was replaced by the
economic policy goals of classic forms of intellectual property,
i.e., patent and copyright law. Yet it was not always this way.
The next section will explain how trade secret law diverged
from its original intellectual foundation and will illustrate the
practical problems that result from the added protections built
into the law.
III.
TRADE SECRET LAW’S THEORETICAL DEVIATION FROM ITS
ORIGINAL DOCTRINAL FOUNDATION AND PRACTICAL
PROBLEMS WITH THE CURRENT FRAMEWORK
Although currently trade secret law is firmly
entrenched in an intellectual property regime with property
98
This is likely the reason that Robert Keppel, whom was accused of trade
secret theft for selling Microsoft certification exams over the internet, was not charged
with copyright infringement. See Press Release, CCIPS, Former Vancouver,
Washington, Resident Pleads Guilty to Theft of Trade Secrets from Microsoft
Corporation (Aug. 23, 2002), at http://www.cybercrime.gov/keppelPlea.htm (last visited
Apr. 10, 2005).
99
See 18 U.S.C. § 1831(a)(5) (2000) (“[C]onspires with one or more other
persons to commit any offense described in any of paragraphs (1) through (3), and one
or more of such persons do any act to effect the object of the conspiracy . . . .”).
100
See United States v. Hsu, 155 F.3d 189, 198 (3d Cir. 1998) (“[A]ttempt and
conspiracy . . . do not require proof of the existence of an actual trade secret . . . .”).
101
See UNITED STATES DEPARTMENT OF JUSTICE, Computer Crime and
Intellectual Property Section: Economic Espionage Act Cases, at http://www.cyber
crime.gov/eeapub.htm (last visited Apr. 20, 2005) [hereinafter DOJ, CCIPS: EEA
Cases].
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rights justified by an incentive-based rationale, the law was
developed around the premise that property rights in trade
secrets were created through the common-law “rule of capture.”
Part III.A explores the theoretical deviation from trade secret
law’s original doctrinal foundation and Part III.B describes the
practical problems that have resulted therefrom.
A.
The Abandonment of Trade Secret’s Firm Foundation
The current conceptualization of trade secrets as a form
of intellectual property is fundamentally inconsistent with
trade secret law’s original doctrinal foundation, which was
based on the common-law rule of capture. To understand where
the modern law has gone awry, it is necessary to start from the
beginning. As Judge Robert H. Bork has eloquently explained,
historical analysis is a powerful tool in exposing current legal
misconceptions:
One of the uses of history is to free us of a falsely imagined past. The
less we know of how ideas actually took root and grew, the more apt
we are to accept them unquestioningly, as inevitable features of the
world in which we move. [M]ost of us accept our first principles and
even our intermediate premises uncritically, as given, because we
assume that they were established theoretically and confirmed
empirically by legislators and judges long ago.102
1. From Common Law to the Restatement (First) of
Torts: The Changing Face of Trade Secret Law
The concept of a trade secret as we know it first took
root in the late 1830s103 and sprouted into a judicially
recognized right with the landmark 1868 opinion, Peabody v.
Norfolk.104 The plaintiff, Peabody, invented a new secret process
for making gunny cloth from jute butts. Peabody employed
Norfolk, who signed a written contract obligating him to keep
the process secret. Norfolk later left Peabody’s employment and
102
ROBERT H. BORK, THE ANTITRUST PARADOX: A POLICY AT WAR WITH ITSELF
15 (1993).
103
See Vickery v. Welch, 36 Mass. 523 (1837) (upholding the sale of the rights
to the secret art of making chocolate).
104
98 Mass. 452 (1868). For a more in-depth discussion of Peabody, see Bone,
supra note 12, at 252-54. Bone, supra note 12, at 253 (citing Peabody, 98 Mass. at 45758 (referring specifically to trademark law, patent law, and trade secret law)). Bone,
supra note 12, at 253 (citing Peabody, 98 Mass. at 457-58 (referring specifically to
trademark law, patent law, and trade secret law)).
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used the secret process to build a competing factory with James
Cook. Peabody sought an injunction against the continued
operation of the new factory.105 Among other defenses, Cook
argued that his original agreement with Peabody was
unenforceable because it was made in restraint of trade.
Rejecting Cook’s argument, Justice Gray of the
Massachusetts Supreme Court held Peabody’s trade secret to
be a property right that was not constrained by contractual
doctrines. This property right, Gray explained, was rooted in
the Lockean concept that Peabody’s personal effort in
enhancing the economic value of his business granted him a
property right in his trade secret: “If a man establishes a
business and makes it valuable by his skill and attention, the
good will of that business is recognized by the law as
property.”106 Gray explained the implications this general
principle had for trade secret law:
If [a person] invents or discovers, and keeps secret, a process of
manufacture, whether a proper subject for a patent or not, he has
not indeed an exclusive right to it as against the public, or against
those who in good faith acquire knowledge of it; but he has property
in it, which a court of chancery will protect against one who in
violation of contract and breach of confidence undertakes to apply it
to his own use . . . .107
Although the court spoke of a “property” right, it had
difficulty applying traditional property concepts—developed
with respect to tangible property—to the intangible object of
information. During this Natural Law period some judges and
theorists explained this difficulty away by utilizing a Lockean
conception of property for intangible ideas.108 John Locke
theorized that property rights originated in individual labor
and the productive use of property.109 The concept of property
during the late nineteenth century was explicitly linked to this
105
See Bone, supra note 12, at 252-53.
Peabody, 98 Mass. at 457. This broad principle was “clearly intended . . . to
unify all branches of what is today known as ‘intellectual property law.’” Bone, supra
note 12, at 253 (citing Peabody, 98 Mass. at 457-58 (referring specifically to trademark
law, patent law, and trade secret law)).
107
Peabody, 98 Mass., at 457-58 (emphasis added).
108
See Bone, supra note 12, at 254.
109
See JOHN LOCKE, SECOND TREATISE OF CIVIL GOVERNMENT 17-18 (BobbsMerrill ed. 1952) (1690) (“Whatsoever then [a person] removes out of the state that
nature has provided and left it in, he has mixed his labor with, and joined to it
something that is his own, and thereby makes it his property.”)
106
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Lockean concept of labor and physical possession.110 The notion
was that the first possessor received property rights as a
reward for their labor.111 Modern economic arguments, such as
the incentive-based argument currently advanced for trade
secrets had not been developed.112
Of all the “bundle” of rights associated with property
ownership, the concept of exclusivity was the most difficult to
apply. The terminology used by the court in Peabody illustrates
this confusion. While the court stated that the owner of a trade
secret had a “property” right in his manufacturing process, the
right was said not to be “exclusive to [the holder] as against the
public.”113 In other words, the trade secret owner did not possess
one of the most important sticks in the bundle of property
rights—the right to exclude.
To account for this deficiency, ambitious courts
attempted to rationalize property rights in intangible ideas by
analogizing them to the common-law rule of capture.114 The
analogy between ideas and animals ran deep.115 Just as animals
were captured through physical labor and protected only to the
extent that they remained confined, ideas were captured
through discovery and protected only to the extent that they
remained secret.116 If the secret escaped, then it became public
property. Thus the only way to maintain one’s property rights
in information at common law was to keep it secret. This was a
direct extension of the generally accepted Lockean concept of
just-deserved rights, and was therefore well received. In 1904,
the Second Circuit, in Werckmeister v. American Lithographic
Co., described this common-law reasoning as follows:
[Ideas] are as free as the birds of the air or the wild beasts of the
forest, but they belong to him who first reduces them to captivity. . . .
110
See Ghen v. Rich, 8 Fed. 159, 161 (D. Mass. 1881) (attaching the right of
property in a whale to the first person that shoots the whale with a distinctively
marked harpoon); Pierson v. Post, 3 Cai. R. 175, 177-78 (N.Y. Sup. Ct. 1805) (attaching
property in a fox to the first person bringing it under control, articulating the wellknown “capture rule”).
111
See SINGER, supra note 47, at 16-18. For an argument in favor of this rule
see generally Richard Epstein, Possession as the Root of Title, 13 GA. L. REV. 1221
(1979).
112
See Bone, supra note 12, at 253.
113
Id. at 253.
114
Id. at 254.
115
This analogy was expressly made in the common-law copyright case of
Werckmeister v. American Lithographic Co., 134 Fed. 321, 324 (2d Cir. 1904), which is
quoted infra text accompanying note 117.
116
Bone, supra note 12, at 255.
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To pursue the foregoing analogies, the common-law protection
continues only so long as the captives or—creations are kept in
confinement or controlled.117
Hence, during these formative years, all branches of
intellectual property law were conceptualized through the “rule
of capture.” At common law, exclusive possession was
necessary for property rights to attach.118 These common-law
principles, in turn, applied to all forms of information:
“possession” of information required both discovery and
exclusion through secrecy. Once the information found its way
into the commons, though, the property right disappeared and
instead was owned communally.119
It is at this point that trade secret law diverged from
other forms of intellectual property law—to wit, patent and
copyright law. While trade secret law remained a creature of a
common-law system that did not protect information once it
became public, the early Patent and Copyright Acts protected
the ideas when they were released into the public. It was
reasoned that since the ideas were now “public property,” it
was up to the public to enact protective legislation.120 Yet unlike
patent and copyright law, no statutes were passed to protect
trade secrets once they entered the public domain.
This extra layer of statutory protection afforded to a
copyright owner by virtue of statutory right is exemplified by
Werckmeister. In Werckmeister, the common-law copyright
principles allowed for the creator to release his “captured”
ideas first, but did not protect the ideas once they were let
free—it only protected the copyrighted material prior to its
publication.121 But, because there was a statute involved, the
court explained that subsequent public dissemination did not
destroy the creator’s property rights: “[t]he statute permits [the
ideas] to go free and releases the restraint, provided the owner
has stamped them with his brand.”122
117
Werckmeister, 134 Fed. at 324.
See Bone, supra note 12, at 254.
119
See id. at 255 (citing Hamilton Mfg. Co. v. Tubbs Mfg. Co., 216 F. 401, 407
(W.D. Mich. 1908) (“The property in a secret process is the power to make use of it to
the exclusion of the world. If the world knows the process, then the property
disappears.”) (quoting Cincinnati Bell Foundry Co. v. Dodds, 10 Ohio Dic. Reprint 154
(1887))).
120
See Bone, supra note 12, at 255.
121
Werckmeister, 134 Fed. at 324.
122
Id.
118
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During these formative years, the common-law
principles that protected an owner’s interest in intangible ideas
prior to publication were consensually viewed as superior to
the post-publication statutory protections.123 While common-law
schemes were firmly rooted in the historically and culturally
accepted Lockean concept of just-deserved rights, statutes were
viewed simply as “expressions of historically and culturally
contingent social policy”124 whose added protections granted to
copyright and patents through statute were not viewed as
firmly rooted. In fact, it was thought that trade secret law’s
strong link to the common law made it a superior method of
protection to the post-publication protections afforded through
the statutory patent and copyright schemes.125 Hence, at this
stage trade secret law had a firm foundation of policy grounded
in these common-law concepts.
With the advent of legal realism, however, courts and
scholars abandoned this firm basis.126 Around the early 1920s
the age of legal realism brought an entirely new and more
“modern” conceptualization of trade secret protection.127 The
change in legal philosophy undermined the common-law
property rights approach of the late nineteenth and early
twentieth centuries. Especially weakened was the claim “that
exclusivity through secrecy implied property and that property
implied legal rights [in trade secrets] . . . .”128 During this
period, the basis for liability stemmed not from the defendant’s
violation of the holder’s property right granted at common law,
but instead was based on the wrongfulness of the defendant’s
conduct. This new approach focused on the relationship
between the trade secret holder and the alleged wrongdoer. In
123
See Bone, supra note 12, at 256 (“These statutory rights were treated as
subordinate to common-law property rights . . . .”).
124
Id. (citing 1 J. POMEROY, A TREATISE OF EQUITY JURISPRUDENCE §§ 90-110
(1881); Robert G. Bone, Mapping the Boundaries of a Dispute: Conception of Ideal
Lawsuit Structure from the Field Code to the Federal Rules, 89 COLUM. L. REV. 1, 9-26
(1989); Robert G. Bone, Normative Theory and Legal Doctrine in American Nuisance
Law: 1850 to 1920, 59 S. CAL. L. REV. 1101, 1112-22 (1986)).
125
Bone, supra note 12, at 256.
126
Id. at 259-60.
127
See id. at 259 (citing ROBERT SUMMERS, INSTRUMENTALISM AND AMERICAN
LEGAL THEORY (1982); WILLIAM TWINING, KARL LLEWELLYN AND THE REALIST
MOVEMENT (1973); G. Edward White, From Sociological Jurisprudence to Realism:
Jurisprudence and Social Change in Early Twentieth-Century America, 58 VA. L. REV.
999 (1972)).
128
Bone, supra note 12, 259.
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E.I. duPont deNemours Powder Co. v. Masland,129 Justice
Holmes encouraged this view:
Whether the plaintiffs have any valuable secret or not the defendant
knows the facts, whatever they are, through a special confidence
that he accepted. The property may be denied but the confidence
cannot be. Therefore the starting point for the present matter is not
property or due process of law, but that the defendant stood in
confidential relations with the plaintiffs . . . .130
In his explanation, Justice Holmes clearly stated that
the starting point of analyzing liability for the
misappropriation of secret information was “not property,” but
the “confidential relations” shared by the parties.131 This
approach effectively changed how secret information was
protected under the law of trade secrets. This evolution in
trade secret law shifted the legal framework from common-law
property rights, which focused upon the rights which attached
to the plaintiff’s secret, to a new theory that focused upon the
wrongful conduct of the defendant. Essentially, the property
rights rationale was abandoned and the basis of liability was
now closer to contract and tort law; liability hinged on whether
the wrongdoer had violated a confidence, not a property right.
At this point, courts and scholars alike rebuked the idea
that the owner of a trade secret had a property interest in that
secret. In 1938, the Restatement (First) of Torts, which
contained the first-ever unified definition of a trade secret,
reported that the property conception “has been frequently
advanced and rejected.”132 Instead, the Restatement (First) of
Torts explained that the theory of liability rested upon “a
general duty of good faith.”133 No longer was it thought
necessary to define a trade secret holder’s right as a property
interest. Professor Handler summed up the feeling of the era
nicely: “For one to reap with impunity the fruits of another’s
labor may be reprehensible, but the creation of new species of
property interests and new series of monopolies by the courts
may be disastrous to free enterprise.”134 Hence, the idea of
property rights in trade secrets were not only abandoned, but
altogether denounced.
129
130
131
132
133
134
244 U.S. 100 (1917).
Id. at 102.
Id.
RESTATEMENT (FIRST) OF TORTS § 757 cmt. a (1939).
Id.
Milton Handler, Unfair Competition, 21 IOWA L. REV. 175, 189 (1936).
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This new conceptualization of trade secrets presented a
problem. The new theoretical model deviated from trade
secret’s original foundation, and remained unconvincing. The
law no longer possessed the strong foundation upon which to
rest its policy that it had during the late nineteenth and early
twentieth centuries.135 No longer did trade secrets possess a
strong “justifying theory and . . . normative independence from
other fields of law.”136 Instead, trade secrets were now protected
by forbidding the wrongful conduct of another, just like
contract or tort law. Yet the property-like characteristics of
trade secrets, such as the ability to assign the secret, or its use
as the res of a trust, made for an imperfect fit. The stripping
away of trade secret’s common-law property foundation left a
gap that courts and scholars have been trying to fill ever
since.137
In the 1970s and 1980s the Supreme Court attempted to
fill this gap by adopting the policy goals for trade secrets that
are commonly articulated to support more traditional forms of
intellectual property, such as copyright and patent law.138 As
the following section will illustrate more thoroughly, this too
was an imperfect fit. The deviation from trade secret law’s
original framework is in large part responsible for the
unpromising current state of the law.
In sum, trade secret law has been struggling to find a
satisfactory framework and rationale after the collapse of its
original theory. Liability was first grounded in a property
rights rationale supported by the rule of capture. As legal
concepts changed, liability was centered on the wrongful
conduct to another and the concept of property rights was
altogether dropped. As a result, trade secrets suddenly found a
home in the Restatement (First) of Torts—an area of the law
where it did not quite fit. Then, trade secrets were analogized
to more traditional forms of intellectual property when the
Supreme Court adopted the economic incentive-based
argument used to support the existence of patent and copyright
laws. As the following section will illustrate, this too was
inappropriate.
135
Bone, supra note 12, at 260.
Id.
137
Id. at 260 n.90 (setting forth the major attempts by courts and
commentators to justify trade secret law, including the idea of “unfair competition,”
which was quite popular in the first half of the twentieth century).
138
See Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974).
136
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2. An Unfit Rationale—Trade Secrets are Different
The above historical tour reveals that, despite the
Court’s current treatment of trade secret law as a form of
intellectual property, the fit is quite poor. Trade secrets are
different. The incentive-based policy rationale adopted in
Kewanee does not fit trade secrets, as the quid pro quo of public
disclosure does not exist. The policy rationales do not at all
explain the need for protecting trade secrets as property.
Furthermore, as a practical matter, the added protections built
into the law through the EEA create a powerful tool for
industry to exclude valuable discoveries from society, further
imperiling the future of innovation.
First, and foremost, the economic policy rationale that
trade secrets enhance incentives to create, thereby benefiting
society, is unconvincing. This incentive-based argument “is well
established as the principal economic justification for
intellectual property rights in general.”139 While the argument
is compelling for both copyright and patent law, it is a very
difficult sell with trade secret law. Even the scholars of the
legal realism era that abandoned trade secret’s original firm
basis recognized the danger of an explicitly economic
justification. Indeed, the Restatement (First) of Torts expressly
rejected this incentive-based rationale:
The patent monopoly is a reward to the inventor. But such is not the
case with a trade secret. Its protection is not based on a policy of
rewarding or otherwise encouraging the development of secret
processes or devices. The protection is merely against breach of faith
and reprehensible means of learning another’s secret.140
The Court in Kewanee also admitted that it is difficult to
reconcile the secret element of trade secret law with the
disclosure of patent law, which is “the quid pro quo of the right
to exclude.”141 The Court reasoned convincingly that in most
cases where trade secrets operate, the “law will encourage
invention in areas where patent law does not reach, and will
139
Bone, supra note 12, at 262 (citing ROBERT COOTER & THOMAS ULEN, LAW
ECONOMICS 112-16, 135-49 (1988)); see also William M. Landes & Richard A.
Posner, An Economic Analysis of Copyright Law, 18 J. LEG. STUD. 325-63 (1989)
(applying the incentive-based argument to copyright); Kenneth W. Dam, the Economic
Underpinnings of Patent Law, 23 J. LEG. STUD. 247 (1994) (applying the incentivebased argument to patent law).
140
RESTATEMENT (FIRST) OF TORTS § 757 cmt. b (1939).
141
Kewanee, 416 U.S. at 484 (emphasis added).
AND
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prompt the independent innovator to proceed with the
discovery and exploitation of his invention.”142 But it is when
the inventor has a choice between using patent law and trade
secret law where the Court’s reasoning is highly questionable.
The majority argued that “[t]he possibility that an inventor
who believes his invention meets the standards of patentability
will sit back, rely on trade secret law, and after one year of use
forfeit any right to patent protection . . . is remote indeed.”143
The majority’s baseless assumption that an inventor
would rarely rely on trade secret law in place of patent law was
highly questionable then, and downright wrong now. Both
Justice Marshall’s concurrence and Justice Douglas’ dissent
called into question the majority’s key assumption in this area.
Justice Marshall agreed with the Court’s decision that trade
secret law was not in conflict with federal patent law, but he
believed “that the existence of trade secret protection
provide[d] . . . in some instances a substantial disincentive to
entrance into the patent system, and thus deprives society of
the benefits of public disclosure of the invention which it is the
policy of the patent laws to encourage.”144 Justice Douglas’
dissenting opinion argued that trade secret law did in fact
frustrate federal patent law’s objectives. As such, Douglas
argued that the majority’s reasoning ran contrary to two of the
Court’s earlier decisions; accordingly, he believed the state
trade secret law regime was preempted by the federal patent
scheme.145
This area of tension between trade secrets and the
policy goals of patent law, highlighted by Justices Douglas and
Marshall, has grown even tauter today. Patent and copyright
owners receive their property rights in exchange for disclosure
142
Id. at 485.
Id. at 490.
144
Id. at 494 (J. Marshall, concurring).
145
Justice Douglas argued:
Today’s decision is at war with the philosophy of Sears, Roebuck & Co. v.
Stiffel Co., 376 U.S. 225 and Compco Corp. v. Day-Brite Lighting, Inc., 376
U.S. 234. We held that when an article is unprotected by a patent, state law
may not forbid others to copy it, because every article not covered by a valid
patent is in the public domain. Congress in the patent laws decided that
where no patent existed, free competition should prevail; that where a patent
is rightfully issued, the right to exclude others should obtain for no longer
than 17 years, and that the States may not “under some other law, such as
that forbidding unfair competition, give protection of a kind that clashes with
the objectives of he federal patent laws[.]”
Id. at 495 (J. Douglas, dissenting).
143
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to society. With trade secret law, this disclosure could
theoretically never take place. It is this area of tension that
runs contrary to the second stated policy rationale of trade
secret law: “encourag[ing] creation” for the betterment of
society as a whole.146 The argument that society loses little in
the process may hold merit when it comes to trade secrets such
as advertising campaigns, customer lists and business
methods, but it runs contrary to the policy of public disclosure
when it comes to patentable items of invention, processes,
procedures and techniques that would benefit society. The
rarity in which an occasion like this was thought to occur may
explain the Court’s decision at the time, but it definitely calls
into question whether providing a property right to the holder
is justified if these occasions become increasingly common.
With the numerous added protections currently built into the
law, the incentive to keep an invention a trade secret, where
disclosure could theoretically never take place, has increased
tremendously.
Furthermore, the first policy rationale articulated by
the Court in Kewanee—that trade secret law encourages
commercial ethics—is not a convincing reason to supply
property rights. This policy rationale is justified as protecting
the traditional community norms that have developed over
time. But as one commentator laments, this justification
sounds more like “lofty aspirational goals” than a workable
framework of law.147 Moreover, it is not necessary to create a
property right to safeguard commercial norms. As Justice
Holmes explained, liability may be predicated on a tort or
contract theory that imposes liability based on a defendant’s
wrongful conduct.148 The idea that trade secret law encourages
commercial ethics appears to be more of an added benefit to
protecting interests in trade secrets than it is an actual
rationale for protecting them as “property.” Hence, the
146
See Kewanee 416 U.S. at 481.
Chiappetta, supra note 17, at 86.
148
Justice Holmes argued for a rationale based more upon a contract or tort
theory, where liability was based upon the violation of a confidence. He famously
stated:
Whether the plaintiffs have any valuable secret or not, the defendant knows
the facts, whatever they are, through a special confidence that he accepted.
The property may be denied but the confidence cannot be. Therefore the
starting point for the present matter is not property or due process of law, but
that the defendant stood in confidential relations with the plaintiffs . . . .
E.I. duPont deNemours Powder Co. v. Masland, 244 U.S. 100, 102 (1917).
147
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Monsanto decision, which recognized trade secrets as property
under the takings clause of the Fifth Amendment, is not
supported by these poorly developed rationales.
Monsanto’s faulty reasoning is further evidenced by the
fact that the Court was forced to revert to formalistic notions of
property to justify granting a property right to Monsanto.149 The
Court used language that harped back to the formalistic rule of
capture analysis from the late nineteenth century, utilizing the
natural rights concept of “just deserved” property rights
through “labour.”150 This is telling because it indicates that
property rights in trade secrets cannot rest squarely upon the
economic justification explicitly expressed for trade secret law,
and borrowed from traditional forms of intellectual property,
i.e., copyright and patent law. In addition, this incentive-based
economic rationale leads many towards the mistaken belief
that trade secret law is simply another form of intellectual
property. The reality, as one commentator so simply stated, is
quite the opposite: “Trade secret law is fundamentally
different.”151
The recognition of a property right in trade secrets has
attracted much controversy. One commentator has opined that
trade secret law “is merely a collection of other legal norms—
contract, fraud, and the like—united only by the fact that they
are used to protect secret information.”152 Indeed, “[t]he
relational focus of trade secret’s liability rules aligns trade
secret law more closely with the law of contract than with the
law of property.”153 Hence, a property right in trade secrets is
arguably altogether unnecessary, as other legal theories, such
as contract and tort law, possess all the tools necessary to
protect against the misappropriation of ideas.
Yet despite the problems noted above, trade secret law
expanded on the criminal front without attempting to sort
through the doctrinal morass. The EEA, passed to benefit
industry, is essentially a canon being used to kill a mosquito.
Scholars complain that the over-broad language remedied the
ills of industrial espionage too thoroughly.154 For example,
149
See text accompanying notes 61-62.
See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003 (1984); see also text
accompanying note 62.
151
Bone, supra note 12, at 244.
152
Id. at 245.
153
Id. at 244.
154
See, e.g., Moohr, supra note 86, at 884; Burstein, supra note 87, at 326.
150
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Professor Moohr argues that the EEA’s expansive definition of
trade secrets expands the range of protected material so much
so that it “raises constitutional vagueness and notice issues.”155
Professor Burstein argues that this expansion creates an
incentive for prosecutors to utilize the EEA rather than other
federal criminal statutes because the elements are much easier
to make out.156
Until 1996, trade secret law was solely developed and
cultivated under state law. As rationales justifying trade
secrets shifted back and forth in the courts and
157
Restatements, Congress was curiously indifferent. Although
large sections of the United States Code are dedicated to
158
159
patent and copyright law, federal legislation has only come
160
recently in the law of trade secrets and is quite sparse. Yet as
the tendency to analogize trade secrets to other forms of
intellectual property increased, Congress’s indifference was
intriguingly replaced with fervor to strengthen a law that was
already sorely misunderstood.
What is extremely troubling about the EEA is that
legislative history shows absolutely no evidence of a
substantive discussion of how the EEA would interact with
trade secret law’s stated policy goal of encouraging innovation
for the benefit of society.161 Rather, the committee reports and
floor debates illustrate the one-sided, pro-business nature of
the EEA. Indeed, Congress did not hear any testimony from
experts in the intellectual property field. In fact, all of the
testimony was given by self-interested industry experts.162 The
result is a law that has received much criticism from scholars,163
while providing extremely strong protections for industry.
155
Moohr, supra note 86, at 884.
Burstein, supra note 87, at 325-26.
157
See supra Part II.A.
158
The entirety of Title 17 is dedicated to Copyright Law. See Copyright Act,
17 U.S.C §§ 101–1301 (2000).
159
The entirety of Title 35 is dedicated to Patent Law. See Patent Act, 35
U.S.C. §§ 1–331 (2000).
160
See Economic Espionage Act, 18 U.S.C. §§ 1831–39 (2000).
161
See Craig L. Uhrich, The Economic Espionage Act—Reverse Engineering
and the Intellectual Property Public Policy, 7 MICH. TELECOMM. & TECH. L. REV. 147,
171 (2001) (citing H.R. Rep. No. 104-788, at 4-8 (1996)) (discussing the importance of
proprietary information and the inadequacy of state civil remedies); S. Rep. No. 104359, at 5-12 (1996) (adding reports of the increasing incidence of economic espionage
and a discussion of the need for a comprehensive federal law).
162
See Uhrich, supra note 161, at 170–71.
163
See, e.g., id.; Moohr, supra note 86, at 884.
156
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Ultimately, the current trade secret scheme is deeply
entrenched in a property right regime, but the policy goals
currently supporting the law do not fit. Not only has this new
theoretical model deviated from trade secret’s original
foundation, but also as a practical matter, the added
protections built into the law have effectively swung the
pendulum directly towards the interests of industry. As will be
shown in the next section, this current theoretical framework
has the unfortunate consequence of constricting socially
beneficial innovation.
B.
Practical Problems with the Current Trade Secret
Framework: De Facto Monopolies and Collective Action
Dilemmas
As trade secret holders enjoy the added protections built
into the law, society suffers as the law’s tendency to strangle
innovation increases. In particular, owners of chemical
inventions may enjoy de facto monopolies in their ideas
because they are usually impossible to reverse engineer.
Constricting the free-flow of information creates a collective
action problem whereby inventors cannot build upon the ideas
of others.
1. De Facto Monopolies: Inventions that are
“Beneficial to Society” but Impossible to Reverse
Engineer
Chemical inventions, which are extremely difficult to
reverse engineer, can enjoy a much longer period of exclusive
use if the inventor does not apply for a patent.164 Daniel C.
Munson, a chemical inventor and lawyer, argues that certain
industrial inventions are better candidates for trade secret
protection than others.165 Whereas electrical or mechanical
inventions are easily reverse engineered, as evidenced by the
164
See Daniel C. Munson, The Patent-Trade Secret Decision: An Industrial
Perspective, 78 J. PAT. & TRADEMARK OFF. SOC’Y 689, 699–702 (1996).
165
See generally id. Ironically, Munson comes to the conclusion, despite his
earlier contentions, that federal patent law does not preempt state trade secret law
because patents are easier to obtain for chemical inventions than other types.
Munson’s conclusion appears inapposite to the weight of his paper, which enumerates
the many reasons a chemical inventor would prefer trade secret protection.
Furthermore, as trade secret law receives increased protection it is reasonable to
conclude that it could become even more attractive to these same inventors.
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legion of suits filed in the early 1990s involving semiconductor
design, chemical compounds cannot be. Thus, as a practical
matter, trade secret protection is impossible to maintain for
mechanical or electric inventions, but almost assured for
chemical formulae.166 For example, the formula for Coca-Cola
has never been reverse engineered, even though it has existed
for well over a hundred years.167 As one of the most well-known
and profitable companies in the world,168 the formula is
undoubtedly a great target for reverse engineering.
Nevertheless, not a single manufacturer has been able to
duplicate it.
However, although the secrecy of a soft drink formula is
hardly detrimental, suppression of information poses a very
real problem when the nature of that information is socially
beneficial. For example, suppose a company discovers a
formula for a clean-burning fuel alternative, a product
extremely difficult to reverse engineer. Further assume that
the company is a subsidiary of an oil company. This company
could either patent the technology and suppress it for twenty
years,169 or keep it as a trade secret. Given these two choices, a
company would likely choose to go the trade secret route
because, assuming the information could not be discovered
independently, the company could effectively maintain
indefinite and exclusive use of its invention. Nothing prevents
that company from shielding the rest of the world from the
benefits of that invention forever. In fact, federal criminal laws
provide harsh sanctions for anyone who discloses the formula.170
166
See id. at 690–97.
See The Coca-Cola Company at http://heritage.coca-cola.com (last visited
Apr. 25, 2005). The drink was invented by John Pemberton, an Atlanta pharmacist, in
1886. Id. To this day, almost 120 years later, the formula has remained a secret.
168
The aggregate market value of the common equity of the Coca-Cola
Company as of June 30, 2004 was over $105 billion. See The Coca-Cola Company,
United States Securities and Exchange Commission, Form 10-K, available at
http://www2.coca-cola.com/investors/pdfs/form_10K_2004.pdf (last visited May 11,
2005).
169
This example is very similar to the actions taken by Standard Oil in 1929.
“Once Standard Oil acquired [hydrogenation process] patent rights, it showed little
interest in using the hydrogenation processes in production. Instead, it was more
interested in blocking the threat that liquid fuels and coal lubricants posed to the oil
industry.” Kurt M. Saunders, Patent Nonuse and the Role of Public Interest as a
Deterrent to Technology Suppression, 15 HARV. J. L. & TECH. 389, 409 (2002).
170
Under 18 U.S.C. § 1832(a)-(b) the maximum fine for individual offenders is
$ 250,000, the same as for mail and wire fraud. Id. § 3571(b) (providing the general fine
provision). Penalties for violations that benefit foreign governments, instrumentalities,
or agents carry a penalty for individuals of fines up to $500,000 and imprisonment not
167
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While current regulations already guide pharmaceutical
products towards the law of patents,171 there are other areas of
industry where beneficial inventions may be kept secret to the
detriment of society forever.
The above example is not farfetched. Intellectual
property has been utilized to shield the public from socially
beneficial inventions in the past.172 Indeed, companies have
often used intellectual property law as a means of withholding
ideas that are beneficial to society, but harmful to their bottom
line.173 For example, in the 1960s Liggett & Myers Company
discovered and patented174 the “XA” cigarette, a cigarette with
most of the carcinogenic agents removed. However, for various
reasons, it was never released to the public and all of the
research was suppressed.175 Liggett finally announced plans to
release the “safer” cigarette in 2001, after the tobacco industry
finally admitted to the carcinogenic effects of smoking.176 Had
Liggett introduced the product sooner, many lives could have
been spared. At the least, an earlier release of the XA cigarette
would have spurred other cigarette companies to seek out
similar developments. Instead, this knowledge was suppressed
for many years.
This is just one of many examples of intellectual
property rights being used to suppress ideas that could prove
more than fifteen years. Id. at § 1831(a). When the defendant is an organization, the
fine may reach $10 million. Id.
171
Due to strong public welfare concerns, the pharmaceutical industry is
heavily regulated by the government. Extensive disclosure and testing is often required
before a product is deemed approved for massive public release. Thus, trade secret law
is a poor fit for protection here. See Munson, supra note 164, at 698 n.22.
172
See, e.g., Saunders, supra note 169, at 392-93; Michael A. Gollin, Using
Intellectual Property to Improve Environmental Protection, 4 HARV. J. L. & TECH. 193,
223 (1992).
173
See Saunders, supra note 169, at 395–96.
174
There can be no empirical data from the realm of trade secret law directly
proving this premise because trade secrets are just that—secret. An example from
patent law here illustrates that companies will suppress knowledge or developments if
they could hurt their bottom line.
175
See Saunders, supra note 169, at 393 (citing First Am. Compl., City &
County of San Francisco v. Philip Morris, Inc. (N.D. Cal. 1996) (No. C-96-2090-DLJ),
available at http://stic.neu.edu/ca/sf/1stamcomplaint.htm (last visited Apr. 27, 2005)).
The reasoning behind this was that admitting there could possibly be a
safer cigarette would imply that existing cigarettes were in fact dangerous.
Furthermore, Phillip Morris allegedly threatened retaliation if Liggett released
information regarding smoking and health. See id. at 394.
176
See id at 394-95.
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extremely beneficial to society but harmful to a company’s
bottom line.177
2. Trade Secret Protection in Research Developments
and Collective Action Dilemmas
A related problem to idea suppression occurs when
trade secrets are granted for research developments in
chemical compounds that are beneficial to society. Although,
due to government regulations, an actual cure for cancer would
need to be patented in order to be distributed publicly,178 a
discovery that constitutes a significant step towards that cure
does not. This means that trade secrets will protect a broad
array of information that does not formally qualify for patent
protection.
As exemplified by the recent case of Teller v. Teller,179
there is a rather low threshold for property rights to vest in a
trade secret. In Teller, the Supreme Court of Hawaii had to
decide precisely when a property right vested in a trade
secret.180 Mrs. Teller agreed that Mr. Teller’s secret weather
radio invention was created three months prior to their
marriage, thus qualifying as “pre-marital property” under
Hawaii law, and rendering the property “separate” for purposes
of equitable distribution. The court reasoned that “one owns a
property right in a trade secret when one knows of it . . . .”181
This means that a trade secret is certain to vest before the
property right in a patent because under federal law the right
in a patent accrues once it is issued by the Patent Office.182
177
For numerous other examples see id. at 407–17.
Government regulations make disclosures mandatory, so that drugs can be
tested and FDA approval can be issued prior to distribution. See 21 U.S.C. § 352(n).
The section states in pertinent part:
In the case of any prescription drug distributed or offered for sale in any
State [the following must be disclosed] . . . (2) the formula showing
quantitatively each ingredient of such drug to the extent required for labels .
. . , and (3) such other information in brief summary relating to side effects,
contraindications, and effectiveness as shall be required in regulations which
shall be issued by the Secretary in accordance with the procedure . . . .
Id.
179
53 P.3d 240 (Haw. 2002).
180
Id.
181
Id. at 249 (quoting DTM Research, LLC v. AT&T Corp. 245 F.3d 327, 332
(4th Cir. 2001)).
182
See id. at 250 (citing GAF Bldg. Materials Corp. v. Elk Corp. of Dallas, 90
F.3d 479, 483 (Fed. Cir. 1996)).
178
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Hence, the holder of a trade secret has a property right in that
secret as soon as it is discovered. 183
Yet deciding that property rights vest from the moment
of discovery harms innovation. Future innovators will not be
able to learn from the crucial insights. Moreover, other firms
will continue to research the same area, thus duplicating
efforts.184
A pending case being prosecuted by the U.S.
Department of Justice—United States v. Zhu,185 illustrates that
research developments will be receiving protection under trade
secret criminal laws. In June of 2002, a pair of research fellows
at Harvard University were charged under the EEA for the
theft of trade secrets from a Harvard laboratory.186 It was
alleged that the two stole proprietary and highly valuable
scientific information belonging to Harvard with the intention
of profiting from such information by collaborating with a
Japanese company. The information in question was the
derivative of two genes that blocked the activity of calcineurin.
This genetic derivative possibly offered a way to treat a
number of diseases affecting the immune, cardiovascular, and
nervous systems.187 Although the discoveries were made by the
two research fellows being prosecuted, they signed a
Participation Agreement that assigned all property rights to
discoveries and inventions to Harvard. Furthermore, the two
research fellows used the Harvard laboratory, which was
funded in part by the National Health and the American
Cancer Society, along with Harvard’s information, technology
and chemical reagents to discover the genes.188
Although the behavior of the two research assistances
appeared criminal, the case highlights the overly broad
protection afforded to socially beneficial information. Critically,
the information involved in this case was not easily reverse
engineered and had the potential to benefit society greatly.
183
See id. at 249. “This is an intensely fact-driven analysis because the
moment at which an idea blossoms into a property right protected by statute will in
large part, be dependent upon the content of the secret.” Id.
184
See Bone, supra note 12, at 266-67.
185
See DOJ, CCIPS: EEA Cases, at http://www.cybercrime. gov/eeapub.htm
(last visited Apr. 20, 2005).
186
See Press Release, CCIPS, Pair Charged with Theft of Trade Secrets from
Harvard Medical School, (June 19, 2002), at http://www.cybercrime.gov/zhu
Charges.htm (last visited April 20, 2005).
187
Id.
188
Id.
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Moreover, by bringing a criminal action, the government
appeared to cast the EEA’s protective net over information that
was not in itself a complete product, but rather information
that constituted a critical step to finding a cure. After all, the
newly discovered genes may have been crucial parts of a
process that could lead to cures for a number of diseases.
Nonetheless, the consequences appear dire for the research
fellows. Although the case has yet to be tried, acquittals are
very rare under sections 1831 and 1832.189
But protecting these ideas as property before an actual
invention is fully realized risks potentially locking away
valuable ideas that lead to larger discoveries forever.
Economists refer to this as a collective action problem. An
economic model known as game theory explores this concept.190
A simple and often cited example to illustrate a collective
action problem is the Prisoner’s Dilemma:
Two criminals are arrested. They both have committed a serious
crime, but the district attorney cannot convict either of them for this
crime without extracting at least one confession. The district
attorney can, however, convict them both on a lesser offense without
the cooperation of either. The district attorney tells each prisoner
that if neither confesses, they will both be convicted of the lesser
offense. Each will go to prison for two years. If, however, one of the
prisoners confesses and the other does not, the former will go free
and the latter will be tried for the serious crime and given the
maximum penalty of ten years in prison. If both confess, the district
attorney will prosecute them for the serious crime but will not ask
for the maximum penalty. They will both go to prison for six years.191
Although the best choice is for both to remain silent, the
prisoners’ inability to communicate with each other means that
they will both likely choose the inferior option.192 A similar
dilemma could very easily take place in the realm of trade
secret law. Let us assume that there are two companies, A and
B, which both employ scientists to search for a clean-burning
alternative to gasoline. Scientist A will not make the discovery
because he cannot find the missing link to his formula, which is
otherwise almost complete. Scientist B has discovered this
189
The Department of Justice has not lost many of their attempts to prosecute
thus far under 18 U.S.C. §§ 1331 and 1332. See DOJ, CCIPS: EEA Cases, at
http://www.cybercrime.gov/eeapub.htm (last visited Apr. 20, 2005).
190
See generally Maxwell L. Stearns, A Beautiful Mend: A Game Theoretical
Analysis of the Dormant Commerce Clause Doctrine, 45 WM & MARY L. REV. 1 (2003).
191
DOUGLAS G. BAIRD ET AL., GAME THEORY AND THE LAW 33 (1994).
192
See id.
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missing link, but does not know how to apply it. This
knowledge will be kept secret forever in hopes that Company A,
where Scientist A works, will eventually discover the
information that Scientist B already has. Company B will keep
this discovery secret in the hope that it will one day make the
discoveries that Company A already has. Since the current
trade secret scheme encourages innovation through financial
reward, creating an atmosphere of competition, these secrets
must be kept at all costs in order to maintain a competitive
advantage over the other firm. Scientists A and B cannot
communicate because the information is the property of their
respective companies and is protected by federal criminal
statutes193 as well as civil common-law systems. Consequently,
the information could be held captive forever.
As Companies A and B continue researching and
developing a clean-burning alternative to gasoline, both will be
expending unnecessary time and money. However, if both
companies were able to gain knowledge from the other through
collective action, the clean-burning alternative to gasoline
would be invented, and the two companies would share the
patent rights. Therefore, as in the prisoner’s dilemma, both
companies would be better off if they were able to coordinate
their actions. However they are not currently able to do so
because of preclusive barriers to collective action.194 The tools of
game theory identify this problem and provide a framework for
understanding the optimal regulation of information
transferal.195
Ultimately, the current trade secret framework
discourages cooperation and has the potential to shield socially
beneficial ideas from the public forever. De facto monopolies in
socially beneficial ideas flip the constitutionally mandated
policy goal of benefiting society on its head. Hence a change in
the law of trade secrets is necessary in order to further the
public’s right to socially beneficial ideas.
193
Under 18 U.S.C. § 1832(a)-(b) (2000) the maximum fine for individual
offenders is $250,000. Id. § 3571(b) (providing the general fine provision). Penalties for
violations that benefit foreign governments, instrumentalities, or agents carry a
penalty for individuals of fines up to $500,000 and imprisonment not more than 15
years. Id. at §1831(a). When the defendant is an organization, the fine may reach $ 10
million. Id. at § 1831(a)-(b)
194
Albeit this is an extremely simplified hypothetical, yet “[t]he purpose of
using economic tools to analyze legal problems is to build simple models that capture
the forces at work.” BAIRD ET AL., supra note 191, at 269.
195
Id. at 268-69.
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SOLUTIONS TO THE ABOVE PROBLEMS: AN AFFIRMATIVE
DEFENSE AND THE ENCOURAGEMENT OF COOPERATION
The current trend of protectionism in the law of trade
secrets has swung the pendulum too far in the direction of
industry. As a result, society is suffering. The current trade
secret apparatus must be altered so that the crucial balance
necessary to benefit both society and industry is struck. The
following two solutions hope to aid in swinging the pendulum
back in the direction of society to reach that balance. First, an
affirmative defense should be created to encourage the
disclosure of socially beneficial developments that are being
suppressed from the public. Second, the government should
encourage and seek out ways to facilitate cooperation within
those particular industries engaged in the production of
socially beneficial products.
A.
Creating an Affirmative Defense for Theft of Trade
Secrets that are “Beneficial to Society”
Where an invention or idea stands to benefit the health
and wellbeing of society, that invention or idea must find its
way into society. The law should not act to constrict such
knowledge, but should instead encourage spreading it as
rapidly as possible. This section proposes the EEA be amended
to create an affirmative defense that requires a defendant show
that the information he/she improperly disclosed or stole was
being suppressed by the company and would be of great
“benefit to society.” This affirmative defense should also be
utilized in civil actions for misappropriation.
In Part III.B.1 this Note discussed the XA cigarette as
an example of the problems that patent suppression present.
As a proposed solution to the patent suppression problem,
Professor Saunders points to a compulsory licensing system
“whereby a court would order a patentee that is not using its
patent to license the patent to another who will make use of
it.”196 Michael Gollin, a lawyer with a background in
biochemical science, also points to mandatory licensing
provisions as a possible solution to ideas with environmental
implications being suppressed.197 Gollin points to section 308 of
196
197
Saunders, supra note 169, at 434.
Gollin, supra note 172, at 223.
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the Clean Air Act of 1970198 as a good example of legislation
that forces patent holders to license their technology under
directed circumstances.199 However, trade secrets do not fall
under this provision.200 Gollin concludes that “[t]he treatment of
trade secrets in the principal environmental statutes is
inconsistent with promoting innovation.”201
The difficulty with creating a mandatory licensing
scheme for trade secrets is readily apparent. The most
important element of the trade secret is secrecy. It is
impossible to forcibly license something that you do not know
exists. Hence, it is imperative that those inside be encouraged
to divulge secrets that are of great benefit to society as a whole.
Creating an absolute affirmative defense to any trade
secret theft or misappropriation action, could help to swing the
pendulum back in the favor of society. The onus would be on
the defendant to make out three elements: First, the defendant
must prove the trade secret is extremely difficult to discover
independently and reverse engineer; next, the defendant must
show that the trade secret in question would perform a
valuable benefit to the health and wellbeing of society; and
finally, that the company was suppressing its discovery. Thus,
once it is proven by the plaintiff or prosecution that the
knowledge or invention in question is a trade secret, the
burden of proof would be upon the defendant to prove the three
elements of the affirmative defense.
The first element of the affirmative defense is: The
invention is extremely difficult to reverse engineer. This element
could be proven by expert testimony of scientists in the field.
As discussed above, a large majority of these items are likely to
be chemical inventions and formulas. Conversely, mechanical
devices are unlikely to ever pass this first prong. A computer
company’s source code (human-readable code in which software
developers write programs) may also pass muster under this
first prong, but would have great difficulty under the next.
Next, the defendant must prove that the invention in
question performs a valuable benefit to the health and
198
42 U.S.C. § 7608 (2000).
The section requires certain conditions to exist in order to mandate
licensing: (1) The patented invention is needed to achieve emission limitations; (2) No
alternative methods are available; and (3) The patent reduces competition or
monopolizes it. Id.
200
Gollin, supra note 172, at 223.
201
Id. at 234.
199
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wellbeing of society. This will obviously be an area of strong
contention. Exactly what is a “valuable benefit to the health
and wellbeing of society,” and where should one draw the line?
The goal here is to use the law as a tool to extract those
inventions and formulas that are most beneficial to society
while protecting those that have a more commercial purpose,
such as a soft drink formula, or source code. It is difficult to
formulate a rule that distinguishes between a product like a
clean-burning alternative to gasoline and a soft-drink formula.
On the one hand, it is necessary to balance industry’s interests
in protecting its property rights in research and development;
on the other, the health and wellbeing of society must be placed
above the interest of industry. Hence, a balancing of these
interests is necessary. The following are examples of inventions
that should qualify under this analysis:
1. The invention has the ability to save lives on a grand
scale.
2. The invention has the ability to protect the
environment through directly or indirectly improving the
quality of air, water, or other natural resources.
3. The invention has the ability to improve vastly the
quality of a human life (e.g., a cure for blindness, or a formula
that prevents breast cancer).
If the invention falls into one of the first three
categories, one should next analyze the likelihood of the
invention’s beneficial effect. If the beneficial effect upon society
is highly likely, that invention should be deemed “beneficial to
society.”
Finally, the defendant would need to show that the
owner of the trade secret was suppressing the idea or
invention. One must avoid allowing the improper disclosure of
a trade secret where the owner was merely suppressing the
secret for an innocuous reason, such as to improve upon the
new development. Examining factors such as the length of
delay and changes in the original development would aid in
this analysis.
In sum, the three-element affirmative defense should
aid in upholding the constitutionally mandated policy goal of
“promot[ing] the Progress of Science and [the] useful Arts.”202
By creating such a defense, trade secret owners would likely be
202
See U.S. CONST. art. I, § 8, cl. 8; see also text accompanying notes 3, 72-79.
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wary of suppressing knowledge that could benefit society
because they would receive absolutely no remedy for its theft.
Although the solution above does not altogether fix the
problem of important discoveries being shielded from the
public, it does filter out those socially beneficial inventions that
could be shielded forever. It also helps to reduce an employee’s
or scientific team’s risk of being prosecuted or sued for
attempting to take their unused knowledge and useful
inventions elsewhere.
Admittedly, creating an affirmative defense may do
little to encourage inventors to come forward when their ideas
have been suppressed. One would have to be incredibly noble,
or foolhardy, to risk imprisonment, civil sanctions, and
litigation costs to ensure that their ideas found a way into the
public domain. However, what we punish represents what we
value as a society. Our laws define what we value as “good” in
American life. Hence, creating an affirmative defense would
also create an impetus as to what the law should be and, more
broadly, what values society should encourage.
B.
Encouraging Cooperation to Avoid Collective Action
Dilemmas
The current trade secret scheme forbids cooperation
among industry. The above discussion illustrates that this is an
extremely poor way to encourage innovation, as new ideas
build upon the ideas of others. To foster efficiency, the law
should encourage cooperation to avoid the all too common
problem illustrated in the prisoner’s dilemma—inefficient
results caused by a lack of information.
Legal scholars have recognized that these collective
action problems can be solved through legal involvement.
Indeed, a number of law and economic scholars at the
University of Chicago argue that “[c]ollective action problems
that fit the paradigm of the prisoner’s dilemma present a
possible case for legal intervention.”203 These scholars are not
alone; Professor Stearns uses game theory in arguing that the
dormant Commerce Clause is in fact used as a judicial method
to prevent states from enacting laws of mutual defection.204
That is to say, free trade—collective action—is mutually
203
204
BAIRD ET AL., supra note 191, at 34.
Stearns, supra note 190, at 86-87.
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beneficial to all states, but individual states would likely create
laws discriminating against each other and benefiting their
own local interests but for the watchful eye of the Supreme
Court.205
In In re Sutter-Butte By-Pass Assessment No. 6,206 the
California Supreme Court was faced with a collective action
problem involving the building of levees along areas subject to
flooding. Individual landowners were likely to build levees in
order to keep their land safe from floods; however, their action
would threaten flooding elsewhere. The rational response of
those across the stream would then be to build new and higher
levees. This would have resulted in costs that were actually
higher than if no levees were built at all.207 The court decided
that “the only adequate method of preventing this result was
the unification of the individualistic and antagonistic efforts . .
. into one comprehensive coordinating plan looking toward the
flood control of the river in its entirety.”208 Again, legal
intervention created the optimum solution, thus reducing costs
through avoiding a collective action problem.
Indeed, collective action was even used to maximize the
efficiency of research and development efforts aimed at
combating intense air pollution in the Los Angeles area. In
1988 the California legislature sought to drastically reduce the
emissions of vehicles as quickly as possible.209 To accomplish
this goal, the legislature sought cooperation among industry
leaders in the field. Thus, the Auto/Oil Group was formed,
consisting of three major auto manufacturers and fourteen
major petroleum companies.210 The group signed the Auto/Oil
Cooperative Agreement, where each pledged that the results of
their research would be made public and that none of the
205
Id. at 87 (describing the per se rule against facially discriminatory laws).
191 Cal. 650, 655–56 (1923).
207
BAIRD ET AL., supra note 191, at 32.
208
191 Cal. 650, 656 (1923).
209
See Scott H. Segal, Fuel for Thought, Clean Gasoline and Dirty Patents, 51
AM. UNIV. L. REV. 49, 55 (2001) (citing CAL. HEALTH & SAFETY CODE § 43018(a)
(Deering 1995)).
210
See id. “The ‘Big Three’ U.S. automakers agreed to develop information on
how to reduce vehicle emissions ‘through improved gasoline formulations, alternative
fuels and advances in automobile technology . . . .” Id. at 55 n.51 (quoting UNOCAL,
INC., AUTO/OIL STUDY PROVISIONS (2001), available at http://www.unocal.com/
rfgpatent/rfgao.htm (last visited April, 20, 2005)).
206
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companies would claim proprietary interests.211 In order to
achieve the optimum results, the Group enlisted elements of
contract law to assure cooperation.
A similar solution could prove beneficial in the law of
trade secrets. Indeed, forcing cooperation as a system-wide
remedy to trade secret research developments would be
impossible to implement and equally impossible to regulate.
Thus, a less hard-line approach is necessary. The common
thread of the above examples is that they are all ad hoc
collaborations necessitated by pressing problems common to a
large group.
As has been illustrated above, there are areas of
research and development that are particularly prone to idea
suppression—for example, areas involving chemical compounds
that are extremely difficult to reverse engineer. Research
developments involving chemical compounds that are made in
areas such as Diabetes, Cancer, and Cardio-vascular disease
(to name but a few) are undoubtedly “beneficial to society.”
Indeed, “[t]here has been a dramatic increase in the attention
and resources devoted to partnership or collaborative
approaches to public health goals in the US.”212 Many nations213
and states214 have formed united fronts and consortia to avoid
duplicitous and wasteful medicinal research and encourage
cooperation.
Congress must be more in tune with the realities of
research when creating broad legal constructs such as the
EEA, and leave room for cooperative efforts such as these
among industry. As a whole, we must be receptive to voices of
change. We must avoid being the lukewarm supporters of
change that Machiavelli described half a millennium ago. If our
211
Unfortunately one of the members of the group, Unocal, took out patents
on certain technologies, which has caused much controversy. For an excellent
discussion of this, see generally Segal, supra note 209.
212
Paula M. Lantz et al., Can Communities and Academia Work Together on
Public Health Research? Evaluation Results from a Community-Based Participatory
Research Partnership in Detroit, 78 J. URB. HEALTH: BULL. N.Y. ACAD. MED. 495, 495
(2001), available at http://www.futurehealth.ucsf.edu/pdf_files/Lantz.pdf (last visited
April 6, 2005).
213
See, e.g., IRISH CANCER SOCIETY, at http://www.irishcancer.ie (last visited
April 6, 2005); VICTORIAN BREAST CANCER RESEARCH CONSORTIM INC., at
http://www.cancervic.org.au/cancer1/research/breastconsort.htm (last visited April 6,
2005).
214
See, e.g., LOUISIANA CANCER RESEARCH CONSORTIUM, at http://www.lacrc
.net (last visited Apr. 6, 2005); NORTHERN INDIANA RESEARCH CONSORTIUM, at
http://www.nicrc.org (last visited Apr. 6, 2005).
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[Vol. 70:3
legal framework is to foster efficiency for the benefit of society,
we must not be incredulous or fearful of sharing information,
especially in areas that stand to benefit the health and
wellbeing of society. Although competition undoubtedly
encourages innovation, in certain circumstances, so does
cooperation.
Admittedly, this solution falls short of the type of
analysis necessary for properly forming a workable framework
where trade secrets are shared at the most optimal of levels.
The use of game theory, though, could aid economists in
predicting what hypothetical companies are likely to do under
various legal frameworks, and, thus, which frameworks would
promote the greatest amount of innovation.215 Yet the purpose
of this Note is not so much to propose an exact solution as it is
to invite dialogue on this area of the law.
CONCLUSION
Ultimately, the forces Machiavelli described continue to
shape our world of innovation. The current trend of
protectionism has swung the pendulum too far in the direction
of industry. In order to balance the scales there is a need for
action. The proposed solutions advanced in this Note hope to
encourage the sharing of ideas that truly benefit society most.
By adding an affirmative defense that effectively strips away
any trade secret rights an owner possesses, the law would be
taking a step towards encouraging patenting and the limited
monopoly that comes with it. By encouraging and seeking out
ways to facilitate cooperation among industries that invent
particularly beneficial products, the law would be encouraging
a more optimal framework in which to operate. The two
problematic areas that have been pointed out are not
exhaustive, and the proposed solutions to those problems are
by no means absolute. They are merely a starting point.
The pendulum must swing back in the favor of society in
order for trade secret law to serve the constitutionally
mandated policy goals that intellectual property laws purport
to serve. In order to understand best how the law of trade
secrets frames the actions of industry and innovation, we must
begin to analyze areas that have gone untested for years. We
must work hard to strike a balance when history tells us those
215
See BAIRD ET AL., supra note 191, at 268.
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in control will do whatever possible to remain there. Thus, I
conclude with the hope that this Note encourages the reader to
question the current trend of expanding protection in trade
secrets and intellectual property as a whole. While I cannot
provide a comprehensive solution to the complex problems
discussed in this Note, questioning increased protection in this
area of the law is nonetheless a good starting point. Indeed, the
future of innovation depends on it.
Michael P. Simpson
†
†
B.A., University of Hawaii; J.D., Brooklyn Law School. The author would
like to thank the staff of the Brooklyn Law Review, especially Executive Articles
Editor, Erez J. Davy for his insightful edits, and Symposium Editor, Garrett T. Charon
for his valuable comments. In addition, the author would like to express special
appreciation to his parents Michael and Claudia.