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Abstract:
With recent positive developments in Connecticut, Vermont, Iowa, and New York, mixed success in California, and setbacks in Arizona and Florida, the marriage equality movement remains in the center of political, legal, and social debate in the United States. Proponents have argued that granting the right to marry to same-sex couples is compelled as a matter of simple fairness and equality, while opponents have continued to make a host of related - but unconvincing - arguments about the intrinsic meaning of marriage and how this will be lost or compromised if marriage equality takes hold. But below this turbulent surface, courts called upon to solve real problems confronting same-sex couples have expressly or impliedly recognized that a much deeper problem exists: the vast and often unexamined privileging of marriage over other forms of family and other kinds of relationships. Legal scholars, too, have questioned marriage - sometimes by focusing on the privileges that attach to it, but sometimes more broadly, by questioning the status itself. These unavoidable questions reveal that the controversy over same-sex marriage is but the most visible part of a much larger set of issues about equality and social justice.

What public health and policy goals are we trying to further with laws recognizing and subsidizing marriage? How do the signals sent by privileging marriage advance or compromise those goals? Is there a continued justification for marriage, and, if so, ought we consider changing its prerogatives in ways that will further the public good? What might those ways be, and how will (or could) we know whether we have succeeded? This brief Article raises and explores these questions, and asks whether and to what extent the current privileging of marriage is (or is not) justified.

marriage equality, same-sex marriage, health law, health policy, public policy, marriage

Abstract:
The debate surrounding marriage equality has largely focused on whether same-sex couples have a fundamental right to marry and on the inequality of denying such rights. This focus is understandable from a legal perspective, as courts stand as protectors of minority rights. Equality arguments are limited by their own logic, however, as they too-easily lead to the erroneous conclusion that civil unions that confer the benefits of marriage without the name are sufficient to grant equality to same-sex couples.

Recognizing the limits of legal arguments about equality, some scholars have made laudable efforts to move beyond a rights-based analysis, arguing that marriages, including those by two people of the same sex, serve an important unitive function, and that marriage is, for many, an important part of identity and self-definition. Those opposing marriage equality counter that same-sex marriages (and the sexual conduct of same-sex couples) is simply wrong.

This article contends that the debate has given insufficient attention to the public health and policy justifications for marriage equality. Borrowing from contestable social science research suggesting that marriage has benefits not only to the couple but to the broader society, the article advances the preliminary case that, to the extent such population-wide benefits are real, they would at least to some extent be furthered by allowing same-sex couples to marry. The conclusion is that focusing on such arguments could tip the balance in favor of marriage equality.

same-sex marriage, marriage, marriage equality, public health, health policy

Abstract:
In the battle for marriage equality, equal protection has proven to be a more successful strategy than fundamental rights. This outcome is perhaps surprising, given that civil unions arguably afford at least "formal" equality to same-sex couples. Yet the supreme courts of Connecticut and California have emphasized the denial of equality that the difference in names connotes - civil unions or domestic partnerships v. marriage - and therefore have moved dramatically towards real equality. These two courts were the first to declare that sexual orientation is a suspect (California) or quasi-suspect (Connecticut) classification, thereby radically changing the debate and the showing that the legislature needs to make to justify discrimination against gays and lesbians.

The article explores these decisions, and the more recent decision by the Iowa Supreme Court, as the culmination of a natural process of judicial evolution that has led from "virtual equality" (in states such as New Jersey and Vermont) to real equality. It argues that the choice of heightened scrutiny analysis is a natural, and perhaps inevitable, result of the recognition that the "virtual equality" conferred by “marriage equivalent” laws is insufficient to confer true equality on same-sex couples.

civil unions, same sex marriage, marriage equality, equal protection

Abstract:
This article takes a critical, historical view of the LGBT rights movement in three related areas: marriage equality; injury to same-sex relationships in tort law; and the creation and enforcement of private contractual agreements between same-sex partners. The period surveyed covers the early 1970's through late 2008.

Through examination of case law, legislation and legislative history, and the increasing visibility of the LGBT community during the period in question, Marriage, Tort and Private Ordering: Rhetoric and Reality in LGBT Rights argues that, during the 1970's, the socially enforced invisibility of gay lives and relationships translated into an inability to regard "gay marriage" as anything but an oxymoron. Moreover, inasmuch as marriage was also seen as required for relationship validity, tort claims also met with failure when the intimate lives of gay and lesbian couples came into view. Over time, though, both visibility and the vocabulary needed to describe it have moved same-sex couples ever closer to formal, legal equality. Private arrangements by same-sex couples, by contrast, have long enjoyed greater recognition, in part because courts were been able to focus on economic understandings and the law of contract.

same-sex couples, gay marriage, same-sex marriage, gay rights, LGBT rights, tort law, marriage, contracts, lesbian couples

Abstract:
Although tens of thousands of Americans die from gun violence every year, the regulation of firearms remains inadequate. Those who are injured, or the survivors of those killed by guns, therefore have sought relief through tort law against those who manufacture these uniquely deadly products. With rare exceptions, however, these suits have been unsuccessful. Most courts have found that the conduct of gun manufacturers is not actionable under strict product liability doctrine, negligence, or the law of abnormally dangerous activities. This Article argues that courts have been too reluctant to apply tort liability to gun manufacturers. It is possible and necessary, the authors demonstrate, to fashion a rule of liability that will call irresponsible gun manufacturers to account, and that doing so will not amount to absolute liability against the gun industry. Drawing theoretical support for their position from central pillars of tort law, the authors offer a test for judging whether a class of guns should be considered defectively designed. Such a determination should hinge on whether the impugned gun is a "manifestly unreasonable" design. This concept is recognized in the Third Restatement of Torts, but too narrowly defined there. The authors flesh out the concept by reworking the factors for abnormally dangerous activities to make them more directly applicable to the complex array of design and marketing decisions that gun manufacturers make. Through a series of illustrations, they then apply this test to different types of guns and show how the test supports liability for certain egregious practices, but not for some other practices. In addition, the authors recommend that claims for negligent marketing be allowed to supplement the design claims in appropriate cases.

tort law, torts, guns, firearms, product liability, negligence

Abstract:
Following the horrific terrorist attacks of September 11, 2001, Congress moved swiftly to pass legislation that both protected potential tort defendants against crushing liability and created a fund to compensate those killed or injured by the terrorists. Although the Victim Compensation Fund does not provide the full recovery that a plaintiff might gain through a tort suit, it nonetheless reflects a tort law bent by allowing recovery of full economic loss.

This Article argues that the Fund confuses two kinds of justice. Corrective justice (herein, tort law) is concerned with repairing an inequality between parties that wrongful conduct has created. Distributive justice, on the other hand, considers broader questions about the proper and just allocation of goods within a society. Such questions are the province of government, not of individuals. The "Fund" is a fund in name only, because its source is general revenue. Thus, inasmuch as it is taxpayers, and not parties who have acted wrongfully, who are paying for the Fund, government cannot consider the needs of the victims of September 11th in isolation. Instead, it has a responsibility for ensuring that the needs of all citizens are considered. In short, payment should not attempt to substitute for tort law, under which the goal is restoration of the status quo before the harm occurred. The Fund does nod in the right direction, by counting most collateral source payouts against recovery, and limiting recovery for non-economic loss. But these measures do not achieve the broader accounting that distributive justice requires.

Once the Fund's confusion between distributive and corrective justice is laid bare, the troubling question remains: How should the victims of this tragedy be compensated? The consequences of a terrorist attack are the realization of a social, or shared, risk. The Article contends that a broad definition of social risk is needed, and that such a comprehensive understanding can help us to understand both the inappropriateness of such measures as the Fund and the strength (and limits) of claims based on the materialization of social risks. To make this point, the Article focuses on a class of injuries that everyone agrees is social - the risk of the spread of infectious disease from an unvaccinated population. It moves out from there to note similarities between this obvious case of social risk and misfortunes that are not usually thought of as shared, and concludes by stating that an expansive definition of social risk might yet emerge from the events of September 11th. Such a definition would underscore the reality that the victims of misfortune - including terrorist attacks - are all of us.

terrorism, tort law, torts, compensation, justice

Abstract:
The tragic devastation that followed Hurricane Katrina was largely the result of governmental negligence. Although the ineptitude of federal, state and local authorities in the aftermath of the hurricane has been well-chronicled, less attention has been paid to the shoddy construction, inspection, and maintenance of the levee system; a system that failed under the stress of a low-level hurricane. Drawing on authoritative engineering reports that reviewed problems with the levees, this article concludes that the system's failure was principally the fault of the Army Corps of Engineers, abetted by state and local failures. Thus, the federal government bears responsibility to the citizens of New Orleans whose lives were lost or shattered after Katrina.

Notwithstanding this fault, those injured or killed by Katrina have received little from the government. Federal disaster relief, available in all cases following a declaration of disaster, has been the principal - and inadequate - remedy. In contrast, the families of those killed by the terrorist acts of September 11 received generous payouts, in many cases totaling millions of dollars, from general revenue. These payments were made in spite of the government's likely lack of substantial fault in the events leading up to September 11.

This article argues that the difference in treatment cannot be justified by recourse to any principle of justice. Government does have an obligation to come to the assistance of disaster victims, but this obligation is constrained by the requirement of distributive justice, which mandates that the welfare of all citizens be taken into account. Thus, even the heartbreaking events of September 11 should have triggered no more than typical FEMA relief efforts. Matters are more complicated, though, where government itself is to blame for a tragedy, as was to a great extent true in the case of Katrina. In that case, one can argue that the government should pay the victims for the same reasons that we require private defendants to pay for injuries they cause innocent victims (plaintiffs): the imperatives of corrective justice, which treat the parties as a closed set and require one to pay the other to redress an imbalance that culpable conduct creates.

But the government, of course, is not a private "party," and it is therefore impossible to "close off" its assets from those of everyone else. Thus, although it seems clear that Katrina victims have a better claim to government compensation than did the victims of September 11, it does not follow that the government should simply pay out in the same way that tort plaintiffs would be compensated. The article argues for a creative middle ground: Government should not restrict itself to disaster payments, but should stop short of full tort compensation. Flexibility and attention to changing developments, and a "long tail" approach to improving the lives of Katrina's victims, are the best solutions to a theoretically and practically difficult problem.

hurricane katrina, september 11, terrorism, disasters, tort law, victim compensation

Abstract:
Developing nations face many of the same barriers to the effective prevention and treatment of HIV/AIDS as the developed nations. The article examines successful and unsuccessful approaches to prevention in the United States, and compares these to the obstacles faced by those attempting to deal with the HIV/AIDS pandemic in other nations. It suggests ways of addressing deeply rooted obstacles such as the treatment of women and racial and sexual minorities. A complex web of approaches that draws on international, national, and local laws and government, as well as the participation of community groups, stands the only chance of substantially addressing the myriad problems HIV/AIDS presents.

The article also addresses the assumption that treatment of most of the world's HIV-infected population is an impossibility, and draws on two existing studies to suggest that the barriers are not as insurmountable as is sometimes thought. Substantial global commitment to funding, however, is necessary for both prevention and treatment.

HIV, AIDS, barriers, treatment, prevention, discrimination, sexual orientation, women, stigma, United States, Brazil, Kenya, Uganda, Haiti, CDC, Satcher, Cambodia, Baltimore

Abstract:
During the past few years, more than a score of municipalities (and the State of New York) have brought suit against gun manufacturers, distributors and retailers, seeking to hold them accountable for the consequences of gun violence within the municipalities' jurisdiction. This article critically assesses whether the theory of public nuisance is an appropriate vehicle for bringing such suits. Inasmuch as public nuisance theory is itself only dimly understood, the article begins with an historical summary of public nuisance law. It then considers contemporary objections to the continued vitality of public nuisance, and concludes that, properly defined and limited, public nuisance can be appropriately employed to hold gun sellers responsible for truly outrageous conduct, typically in cases involving the subversion or avoidance of legislative will. As to remedy, however, the article takes the position that, consistent with a proper understanding of public nuisance's appropriate role in the safeguarding of public health, only such relief as is likely to work toward abatement of the nuisance should be granted. As a practical matter, this means that courts should be sympathetic to requests for practical steps such as requiring persistently defiant dealerships to close down and forcing manufacturers to seriously monitor distributors and dealers. On the other hand, courts should not, at least under a theory of public nuisance, award damages that will repay municipalities for the costs incurred in dealing with gun violence, such as increased police and hospital costs.