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2/28/2005 12:02:54 PM 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 2/28/2005 12:02:54 PM 678 I. BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 679 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. 2/28/2005 12:02:54 PM 680 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 681 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 2/28/2005 12:02:54 PM 682 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 683 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. 2/28/2005 12:02:54 PM 684 BROOKLYN LAW REVIEW [Vol. 70:3 “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 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 685 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. 2/28/2005 12:02:54 PM 686 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 687 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 2/28/2005 12:02:54 PM 688 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 689 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 2/28/2005 12:02:54 PM 690 BROOKLYN LAW REVIEW [Vol. 70:3 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’”). 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 691 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. 2/28/2005 12:02:54 PM 692 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 693 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.”). 2/28/2005 12:02:54 PM 694 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 695 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 2/28/2005 12:02:54 PM 696 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 697 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. 2/28/2005 12:02:54 PM 698 BROOKLYN LAW REVIEW [Vol. 70:3 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”). 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 699 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 2/28/2005 12:02:54 PM 700 BROOKLYN LAW REVIEW [Vol. 70:3 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”). 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 701 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). 2/28/2005 12:02:54 PM 702 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 703 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. 2/28/2005 12:02:54 PM 704 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 705 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 2/28/2005 12:02:54 PM 706 BROOKLYN LAW REVIEW [Vol. 70:3 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”). 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 707 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- 2/28/2005 12:02:54 PM 708 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 709 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. 2/28/2005 12:02:54 PM 710 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 711 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). 2/28/2005 12:02:54 PM 712 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 713 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). 2/28/2005 12:02:54 PM 714 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 715 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). 2/28/2005 12:02:54 PM 716 C. BROOKLYN LAW REVIEW [Vol. 70:3 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 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 717 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 2/28/2005 12:02:54 PM 718 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 719 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 2/28/2005 12:02:54 PM 720 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 721 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. 2/28/2005 12:02:54 PM 722 BROOKLYN LAW REVIEW [Vol. 70:3 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”). 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 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 2/28/2005 12:02:54 PM 724 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/28/2005 12:02:54 PM 2005] PINK, WHITE, AND BLUE 725 original understanding and purpose of sex harassment law under Title VII: to help female workers achieve true equal employment opportunity. 1/13/2005 3:25:14 PM 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 1/13/2005 3:25:14 PM 728 BROOKLYN LAW REVIEW [Vol. 70:3 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.”). 1/13/2005 3:25:14 PM 2005] DECRETAL LANGUAGE 729 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). 1/13/2005 3:25:14 PM 730 BROOKLYN LAW REVIEW [Vol. 70:3 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 1/13/2005 3:25:14 PM 2005] DECRETAL LANGUAGE 731 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). 1/13/2005 3:25:14 PM 732 BROOKLYN LAW REVIEW [Vol. 70:3 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). 1/13/2005 3:25:14 PM 2005] DECRETAL LANGUAGE 733 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 1/13/2005 3:25:14 PM 734 BROOKLYN LAW REVIEW [Vol. 70:3 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). 1/13/2005 3:25:14 PM 2005] DECRETAL LANGUAGE 735 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) 1/13/2005 3:25:14 PM 736 BROOKLYN LAW REVIEW [Vol. 70:3 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). 1/13/2005 3:25:14 PM 2005] DECRETAL LANGUAGE 737 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). 2/22/2005 7:18:58 PM 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 2/22/2005 7:18:58 PM 890 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/22/2005 7:18:58 PM 2005] THE BITER BIT 891 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 2/22/2005 7:18:58 PM 892 BROOKLYN LAW REVIEW [Vol. 70:3 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.”). 2/22/2005 7:18:58 PM 2005] THE BITER BIT 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). 2/22/2005 7:18:58 PM 894 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/22/2005 7:18:58 PM 2005] THE BITER BIT 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)). 2/22/2005 7:18:58 PM 896 BROOKLYN LAW REVIEW [Vol. 70:3 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)). 2/22/2005 7:18:58 PM 2005] THE BITER BIT 897 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. 2/22/2005 7:18:58 PM 898 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/22/2005 7:18:58 PM 2005] THE BITER BIT 899 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). 2/22/2005 7:18:58 PM 900 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/22/2005 7:18:58 PM 2005] THE BITER BIT 901 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))). 2/22/2005 7:18:58 PM 902 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/22/2005 7:18:58 PM 2005] THE BITER BIT 903 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). 2/22/2005 7:18:58 PM 904 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/22/2005 7:18:58 PM 2005] THE BITER BIT 905 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). 2/22/2005 7:18:58 PM 906 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/22/2005 7:18:58 PM 2005] THE BITER BIT 907 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). 2/22/2005 7:18:58 PM 908 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/22/2005 7:18:58 PM 2005] THE BITER BIT 909 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 2/22/2005 7:18:58 PM 910 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/22/2005 7:18:58 PM 2005] THE BITER BIT 911 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 2/22/2005 7:18:58 PM 912 BROOKLYN LAW REVIEW [Vol. 70:3 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: 2/22/2005 7:18:58 PM 2005] THE BITER BIT 913 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 2/22/2005 7:18:58 PM 914 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/22/2005 7:18:58 PM 2005] THE BITER BIT 915 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). 2/22/2005 7:18:58 PM 916 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/22/2005 7:18:58 PM 2005] THE BITER BIT 917 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 2/22/2005 7:18:58 PM 918 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/22/2005 7:18:58 PM 2005] THE BITER BIT 919 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 2/22/2005 7:18:58 PM 920 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/22/2005 7:18:58 PM 2005] THE BITER BIT 921 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. 2/22/2005 7:18:58 PM 922 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/22/2005 7:18:58 PM 2005] THE BITER BIT 923 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). 2/22/2005 7:18:58 PM 924 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/22/2005 7:18:58 PM 2005] THE BITER BIT 925 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. 2/22/2005 7:18:58 PM 926 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/22/2005 7:18:58 PM 2005] B. THE BITER BIT 927 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))). 2/22/2005 7:18:58 PM 928 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/22/2005 7:18:58 PM 2005] THE BITER BIT 929 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). 2/22/2005 7:18:58 PM 930 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/22/2005 7:18:58 PM 2005] THE BITER BIT 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). 2/22/2005 7:18:58 PM 932 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/22/2005 7:18:58 PM 2005] THE BITER BIT 933 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. 2/22/2005 7:18:58 PM 934 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/22/2005 7:18:58 PM 2005] THE BITER BIT 935 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 2/22/2005 7:18:58 PM 936 BROOKLYN LAW REVIEW [Vol. 70:3 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.”). 2/22/2005 7:18:58 PM 2005] THE BITER BIT 937 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 3/9/2005 2:46:20 PM 940 BROOKLYN LAW REVIEW [Vol. 70:3 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. 3/9/2005 2:46:20 PM 2005] A FICTIONAL TALE OF UNINTENDED CONSEQUENCES 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). 3/9/2005 2:46:20 PM 942 BROOKLYN LAW REVIEW [Vol. 70:3 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 3/9/2005 2:46:20 PM 2005] 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. 3/9/2005 2:46:20 PM 944 BROOKLYN LAW REVIEW [Vol. 70:3 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 3/9/2005 2:46:20 PM 2005] A FICTIONAL TALE OF UNINTENDED CONSEQUENCES 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). 3/9/2005 2:46:20 PM 946 BROOKLYN LAW REVIEW [Vol. 70:3 (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). 3/9/2005 2:46:20 PM 2005] A FICTIONAL TALE OF UNINTENDED CONSEQUENCES 947 (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). 3/9/2005 2:46:20 PM 948 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/28/2005 2:15:30 PM 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 2/28/2005 2:15:30 PM 950 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 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). 2/28/2005 2:15:30 PM 952 II. BROOKLYN LAW REVIEW [Vol. 70:3 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 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 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 2/28/2005 2:15:30 PM 954 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 955 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, 2/28/2005 2:15:30 PM 956 BROOKLYN LAW REVIEW [Vol. 70:3 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.”). 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 957 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. 2/28/2005 2:15:30 PM 958 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 959 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). 2/28/2005 2:15:30 PM 960 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 961 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 2/28/2005 2:15:30 PM 962 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 963 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). 2/28/2005 2:15:30 PM 964 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 965 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 2/28/2005 2:15:30 PM 966 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 967 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. 2/28/2005 2:15:30 PM 968 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 969 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 2/28/2005 2:15:30 PM 970 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 971 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 2/28/2005 2:15:30 PM 972 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 973 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.”). 2/28/2005 2:15:30 PM 974 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 975 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 2/28/2005 2:15:30 PM 976 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 977 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 2/28/2005 2:15:30 PM 978 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 979 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 2/28/2005 2:15:30 PM 980 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/28/2005 2:15:30 PM 2005] A. NOT AS BAD AS WE THOUGHT 981 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). 2/28/2005 2:15:30 PM 982 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 983 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). 2/28/2005 2:15:30 PM 984 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 985 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 2/28/2005 2:15:30 PM 986 BROOKLYN LAW REVIEW [Vol. 70:3 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)). 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 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. 2/28/2005 2:15:30 PM 988 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 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 2/28/2005 2:15:30 PM 990 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 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. 2/28/2005 2:15:30 PM 992 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/28/2005 2:15:30 PM 2005] NOT AS BAD AS WE THOUGHT 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 2/22/2005 6:19:12 PM 996 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 997 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 2/22/2005 6:19:12 PM 998 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 999 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 2/22/2005 6:19:12 PM 1000 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 1001 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 2/22/2005 6:19:12 PM 1002 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 1003 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. 2/22/2005 6:19:12 PM 1004 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 1005 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). 2/22/2005 6:19:12 PM 1006 BROOKLYN LAW REVIEW [Vol. 70:3 “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 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 1007 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., 2/22/2005 6:19:12 PM 1008 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 1009 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. 2/22/2005 6:19:12 PM 1010 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 1011 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. 2/22/2005 6:19:12 PM 1012 BROOKLYN LAW REVIEW [Vol. 70:3 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]. 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 1013 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). 2/22/2005 6:19:12 PM 1014 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 1015 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 2/22/2005 6:19:12 PM 1016 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 1017 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. 2/22/2005 6:19:12 PM 1018 BROOKLYN LAW REVIEW [Vol. 70:3 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)). 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 1019 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. 2/22/2005 6:19:12 PM 1020 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 1021 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 2/22/2005 6:19:12 PM 1022 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 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 2/22/2005 6:19:12 PM 1024 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 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. 2/22/2005 6:19:12 PM 1026 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 1027 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. 2/22/2005 6:19:12 PM 1028 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 1029 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. 2/22/2005 6:19:12 PM 1030 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 1031 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. 2/22/2005 6:19:12 PM 1032 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 1033 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 2/22/2005 6:19:12 PM 1034 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 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 2/22/2005 6:19:12 PM 1036 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 1037 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. 2/22/2005 6:19:12 PM 1038 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 1039 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. 2/22/2005 6:19:12 PM 1040 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/22/2005 6:19:12 PM 2005] APPLYING ATKINS V. VIRGINA TO CAPITAL DEFENDANTS 1041 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 2/22/2005 6:19:12 PM 1042 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/22/2005 6:19:12 PM 2005] 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. 2/16/2005 2:38:18 PM 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 2/16/2005 2:38:18 PM 1046 BROOKLYN LAW REVIEW [Vol. 70:3 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.”). 2/16/2005 2:38:18 PM 2005] SPOLIATION OF EVIDENCE 1047 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. 2/16/2005 2:38:18 PM 1048 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/16/2005 2:38:18 PM 2005] SPOLIATION OF EVIDENCE 1049 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 2/16/2005 2:38:18 PM 1050 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/16/2005 2:38:18 PM 2005] SPOLIATION OF EVIDENCE 1051 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 2/16/2005 2:38:18 PM 1052 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/16/2005 2:38:18 PM 2005] SPOLIATION OF EVIDENCE 1053 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 2/16/2005 2:38:18 PM 1054 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/16/2005 2:38:18 PM 2005] SPOLIATION OF EVIDENCE 1055 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). 2/16/2005 2:38:18 PM 1056 B. BROOKLYN LAW REVIEW [Vol. 70:3 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 2/16/2005 2:38:18 PM 2005] SPOLIATION OF EVIDENCE 1057 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. 2/16/2005 2:38:18 PM 1058 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/16/2005 2:38:18 PM 2005] SPOLIATION OF EVIDENCE 1059 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.”). 2/16/2005 2:38:18 PM 1060 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/16/2005 2:38:18 PM 2005] SPOLIATION OF EVIDENCE 1061 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.”). 2/16/2005 2:38:18 PM 1062 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/16/2005 2:38:18 PM 2005] SPOLIATION OF EVIDENCE 1063 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 2/16/2005 2:38:18 PM 1064 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/16/2005 2:38:18 PM 2005] SPOLIATION OF EVIDENCE 1065 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. 2/16/2005 2:38:18 PM 1066 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/16/2005 2:38:18 PM 2005] SPOLIATION OF EVIDENCE 1067 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). 2/16/2005 2:38:18 PM 1068 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/16/2005 2:38:18 PM 2005] SPOLIATION OF EVIDENCE 1069 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). 2/16/2005 2:38:18 PM 1070 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/16/2005 2:38:18 PM 2005] SPOLIATION OF EVIDENCE 1071 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 2/16/2005 2:38:18 PM 1072 IV. BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/16/2005 2:38:18 PM 2005] SPOLIATION OF EVIDENCE 1073 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 2/16/2005 2:38:18 PM 1074 BROOKLYN LAW REVIEW [Vol. 70:3 194 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 2/16/2005 2:38:18 PM 2005] SPOLIATION OF EVIDENCE 1075 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). 2/16/2005 2:38:18 PM 1076 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/16/2005 2:38:18 PM 2005] SPOLIATION OF EVIDENCE 1077 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). 2/16/2005 2:38:18 PM 1078 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/25/2005 1:51:29 PM 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 1079 2/25/2005 1:51:29 PM 1080 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/25/2005 1:51:29 PM 2005] NAACP V. ACUSPORT 1081 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 2/25/2005 1:51:29 PM 1082 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/25/2005 1:51:29 PM 2005] NAACP V. ACUSPORT 1083 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 2/25/2005 1:51:29 PM 1084 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/25/2005 1:51:29 PM 2005] NAACP V. ACUSPORT 1085 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.”). 2/25/2005 1:51:29 PM 1086 II. BROOKLYN LAW REVIEW [Vol. 70:3 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 2/25/2005 1:51:29 PM 2005] NAACP V. ACUSPORT 1087 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). 2/25/2005 1:51:29 PM 1088 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/25/2005 1:51:29 PM 2005] NAACP V. ACUSPORT 1089 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). 2/25/2005 1:51:29 PM 1090 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/25/2005 1:51:29 PM 2005] NAACP V. ACUSPORT 1091 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. 2/25/2005 1:51:29 PM 1092 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/25/2005 1:51:29 PM 2005] NAACP V. ACUSPORT 1093 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 2/25/2005 1:51:29 PM 1094 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/25/2005 1:51:29 PM 2005] NAACP V. ACUSPORT 1095 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 2/25/2005 1:51:29 PM 1096 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/25/2005 1:51:29 PM 2005] NAACP V. ACUSPORT 1097 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 2/25/2005 1:51:29 PM 1098 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/25/2005 1:51:29 PM 2005] NAACP V. ACUSPORT 1099 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 2/25/2005 1:51:29 PM 1100 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/25/2005 1:51:29 PM 2005] NAACP V. ACUSPORT 1101 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). 2/25/2005 1:51:29 PM 1102 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/25/2005 1:51:29 PM 2005] NAACP V. ACUSPORT 1103 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 2/25/2005 1:51:29 PM 1104 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/25/2005 1:51:29 PM 2005] NAACP V. ACUSPORT 1105 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. 2/25/2005 1:51:29 PM 1106 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/25/2005 1:51:29 PM 2005] NAACP V. ACUSPORT 1107 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). 2/25/2005 1:51:29 PM 1108 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/25/2005 1:51:29 PM 2005] NAACP V. ACUSPORT 1109 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). 2/25/2005 1:51:29 PM 1110 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/25/2005 1:51:29 PM 2005] NAACP V. ACUSPORT 1111 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. 2/25/2005 1:51:29 PM 1112 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/25/2005 1:51:29 PM 2005] C. NAACP V. ACUSPORT 1113 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 2/25/2005 1:51:29 PM 1114 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/25/2005 1:51:29 PM 2005] NAACP V. ACUSPORT 1115 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 2/25/2005 1:51:29 PM 1116 BROOKLYN LAW REVIEW [Vol. 70:3 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.”). 2/25/2005 1:51:29 PM 2005] NAACP V. ACUSPORT 1117 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.”). 2/25/2005 1:51:29 PM 1118 BROOKLYN LAW REVIEW [Vol. 70:3 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”). 2/25/2005 1:51:29 PM 2005] NAACP V. ACUSPORT 1119 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 2/16/2005 2:38:18 PM 1122 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 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). 2/16/2005 2:38:18 PM 1124 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 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 2/16/2005 2:38:18 PM 1126 B. BROOKLYN LAW REVIEW [Vol. 70:3 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 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 1127 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). 2/16/2005 2:38:18 PM 1128 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 1129 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 2/16/2005 2:38:18 PM 1130 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 1131 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 2/16/2005 2:38:18 PM 1132 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 1133 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)). 2/16/2005 2:38:18 PM 1134 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 1135 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. 2/16/2005 2:38:18 PM 1136 BROOKLYN LAW REVIEW [Vol. 70:3 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]. 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 1137 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)). 2/16/2005 2:38:18 PM 1138 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 1139 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. 2/16/2005 2:38:18 PM 1140 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 1141 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. 2/16/2005 2:38:18 PM 1142 BROOKLYN LAW REVIEW [Vol. 70:3 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). 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 1143 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 2/16/2005 2:38:18 PM 1144 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 1145 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 2/16/2005 2:38:18 PM 1146 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 1147 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 2/16/2005 2:38:18 PM 1148 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 1149 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. 2/16/2005 2:38:18 PM 1150 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 1151 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. 2/16/2005 2:38:18 PM 1152 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 1153 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. 2/16/2005 2:38:18 PM 1154 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 1155 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. 2/16/2005 2:38:18 PM 1156 IV. BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 1157 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 2/16/2005 2:38:18 PM 1158 BROOKLYN LAW REVIEW [Vol. 70:3 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. 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 1159 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. 2/16/2005 2:38:18 PM 1160 BROOKLYN LAW REVIEW [Vol. 70:3 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 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 1161 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). 2/16/2005 2:38:18 PM 1162 BROOKLYN LAW REVIEW [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. 2/16/2005 2:38:18 PM 2005] THE FUTURE OF INNOVATION 1163 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.