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Abstract: The Daubert trilogy of Supreme Court cases - Daubert, Joiner, and Kumho Tire, codified in Federal Rule of Evidence 702 - has established new rules for the admissibility of scientific evidence in federal court. The situation in state courts is far more unsettled. First, a significant number of courts have continued to adhere to the tests they used before Daubert, either the Frye general acceptance test or some other test. Even among those states that have adopted Daubert, its application has been decidedly nonuniform. Only a few states have adopted the Daubert trilogy in its entirety. Some states have adopted Daubert, but have not yet adopted Kumho Tire or Joiner. Others have adopted Daubert and Kumho Tire, but not Joiner, or have adopted only part of Joiner. Still other states view the Daubert trilogy as only instructive, or as consistent with their own traditional state tests but not binding. This article analyzes the degree to which the holdings of the Daubert trilogy have been adopted by state courts. This analysis shows that there is a rich diversity of tests within the states. Indeed, contrary to the prevailing wisdom, the Daubert trilogy is not yet the majority standard even among the states that have rejected Frye.
Forensic Economics, Litigation , Criminal Procedure, Tort, Products Liability
Abstract: This Article discusses two aspects of Lochner's history that have not yet been adequately addressed by the scholarly literature on the case. Part I of the Article discusses the historical background of the Lochner case. The Article pays particular attention to the competing interest group pressures that led to the passage of the sixty-hour law at issue; the jurisprudential traditions that the parties appealed to in their arguments to the Court; the somewhat anomalous nature of the Court's invalidation of the law; and how to understand the Court's opinion on its own terms, shorn of the baggage of decades of careless and questionable historiography. In short, Part I places the Lochner opinion firmly in its historical context. Part II of this Article explains how Lochner, which existed in relative obscurity for decades, became a leading anti-canonical case. As discussed in Part II, Lochner was initially famous only because of Oliver Wendell Holmes's much-cited dissent. The Lochner cases modern notoriety, however, arose largely because the post-New Deal Supreme Court continued to treat the Lochnerian cases of Meyer v. Nebraska and Pierce v. Society of Sisters as sound precedent. Meyer, in particular, eventually became an important basis for the Warren and Burger Courts' substantive due process jurisprudence in the landmark cases of Griswold and Roe v. Wade. Critics of those opinions attacked the Court for following in Lochner's footsteps, and, with some significant help from Laurence Tribe's 1978 constitutional law treatise, Lochner came to represent an entire era and style of jurisprudence. Recently, the ghost of Lochner has been kept very much alive by Justices Kennedy, O'Connor, and Souter, each of whom has praised Meyer and Pierce as engaging in appropriately aggressive due process review of police power regulations, while straining to distinguish those opinions from Lochner. Meanwhile, a revival of limited government ideology on the legal right, most notably in the Rehnquist Court's federalism opinions has raised (perhaps exaggerated) fears on the legal left that the conservatives seek to return, in spirit if not in letter, to the discredited jurisprudence of the Lochner era. Yet virtually no one, on either the right or the left, challenges what may be the strongest evidence of Lochner's influence on modern jurisprudence: the Supreme Court's use of the Fourteenth Amendment's Due Process Clause to protect both enumerated and unenumerated individual rights against the states.
Lochner, substantive due process
Abstract: Lochner v. New York and its eponymous jurisprudential era have been central to constitutional discourse and debate in the United States for nearly one hundred years. Until recently, the legal community's understanding of the Lochner era was clouded by myths left over from the ideological and political battles of the Progressive and New Deal eras. In particular, the Lochner era Justices were portrayed as reactionary Social Darwinists who sought to impose a system of economic laissez-faire on the public. More recently, revisionist historians have disproved this and other myths, and have attempted to construct a more historically-grounded understanding of the Lochner era. The most popular revisionist work is Howard Gillman's book, "The Constitution Besieged." Gillman contends that the Lochner era Court was motivated by opposition to "class legislation," what today we would call special interest legislation. However, Gillman grossly overstates the role of class legislation analysis on the police powers jurisprudence of the United States Supreme Court during the Lochner era. Rather, as this Article shows, the basic motivation for Lochnerian jurisprudence was the Justices' belief that Americans had fundamental unenumerated constitutional rights, and that those rights were protected by the Fourteenth Amendment's Due Process Clause. The Justices had a generally historicist outlook, seeking to discover the content of fundamental rights through an understanding of which rights had created and advanced liberty among the Anglo-American people. This Article, then, argues that the jurisprudential significance of Lochner was not, as Gillman and his supporters would have it, that the Court enforced a ban on class legislation. Quite the opposite, Lochner's primary importance is that it moved the Supreme Court away from class legislation (equal protection) analysis of police power legislation to an analysis that relied on the Justices' understanding of the fundamental liberties of the American people. In this regard, Lochner was the progenitor of modern substantive due process cases such as Griswold v. Connecticut and Roe v. Wade. Some will argue that the current Court should reassess its endorsement of Roe, because it is in the same tradition as Lochner. But perhaps the proper reaction to the conclusion that Lochner and Roe are in the same fundamental rights tradition is to reassess our understanding of Lochner.
Law & Humanities, Constitutional Law
Abstract: This manuscript raises two questions that have been surprisingly missing from the voluminous law review literature on expert evidence since the landmark Daubert decision. First, what is the underlying rationale for the replacement of the old qualifications-only, let-it-all standard for expert testimony with Daubert/Federal Rule of Evidence 702's requirement that all expert testimony be subject to a stringent reliability test? Second, once we have identified this rationale, has the Daubert revolution succeeded on its own terms? I conclude that the implicit rationale for the reliability test is to preserve the perceived advantages of the adversarial system, while mitigating the harms to the courts' truth-seeking function by the inevitable strong biases that accompany adversarial expert testimony. These biases include the conscious biases of hired guns, the unconscious biases of other paid experts, and the selection biases that result from the fact that attorneys shop for their experts from a large pool of qualified individuals. Rule 702 thus attempts to serve a worthy goal, but it far from fully succeeds in efficiently achieving this goal. First, in the context of forensic expertise in criminal cases, Rule 702 does nothing to address the huge gaps in resources between the prosecution and most defendants that severely inhibit defendants' ability to challenge unreliable prosecution expert testimony. Second, Rule 702, applied correctly, does succeed in barring junk science causation evidence in toxic torts cases. However, it does so at the expense of excluding speculative evidence supporting causation, even when most experts in the field would conclude that the relevant evidence is a sufficient basis from which to find causation by a preponderance of the evidence. While Rule 702 is easily preferable to the prior overly permissive regime, it likely goes too far in insisting on a reliability test that makes the courtroom stricter about causation evidence than is the scientific community itself. The way around this problem is to amend Rule 702 to allow courts to admit educated guesses about causation, but only when nonpartisan experts, not subject to adversarial bias, are willing to make such guesses. Finally, Rule 702 puts severe restrictions on the testimony of experience-based testimony by connoisseurs. Such experts may only testify if their field of expertise is a legitimate one, and they have proven to the court that they truly have the expertise they claim. Rule 702 also properly prevents attorneys from shopping for outlier and hired gun connoisseurs, given that there is no objective way for a jury to determine whether an experience-based expert's views are correct or representative of other experts in the field. Therefore, in the context of connoisseur testimony, courts should either replace adversarial experts with a panel of nonpartisan experts, or only allow an adversarial expert to testify if his conclusions are consistent with those of a nonpartisan advisory panel.
expert witness, Daubert, reliability test
Abstract: Part I of this paper briefly reviews the history of the Frye rule from its origins in 1923 to its demise in federal court in Daubert in 1993. This section focuses especially on how Frye, a rule that for decades applied almost exclusively in criminal cases, came to be the focal point of the controversy over the admissibility of scientific evidence in toxic tort cases in the early 1990s. Part II of this paper discusses the development of the Frye test since 1993. Following the lead of federal courts operating under Daubert's broad gatekeeper mandate, Frye jurisdictions are increasingly applying their tests for the admissibility of expert evidence to civil cases, especially toxic tort cases. However, Frye jurisdictions are divided regarding whether the general acceptance test applies primarily to the expert's general methodologies or must be applied to the expert's conclusions. Recently, several courts have followed Joiner's lead, and instead of focusing on the methodologies/conclusions distinction have scrutinized experts' reasoning process. Meanwhile, Frye jurisdictions also must decide whether to follow the lead of federal courts applying Kumho Tire and apply Frye to non-scientific evidence, especially social science evidence. Thus far, few Frye courts have done so. One alternative adopted by some courts is to apply Frye only to novel scientific evidence, but to subject social science evidence to a separate reliability test under state versions of Federal Rule of Evidence 702. Part III of this article concludes that case law under Frye is slowly converging with Daubert jurisprudence. Rather than allowing this process to continue haphazardly and inconsistently, with all the awkwardness that shoehorning the Frye general acceptance test into Daubert-Joiner-Kumho reliability precedents entails, state legislatures should enact state versions of new Federal Rule of Evidence 702, which explicitly adopts the Daubert trilogy.
Abstract: This essay provides a concise overview of the history of the constitutional status of freedom of contract in the United States, with particular attention to the rise and fall of the "liberty of contract" doctrine in the early 20th century.
Allgeier, contract clause, Fourteenth Amendment, Frisbie, government regulation, interference interpretation, New Deal, Ogden v. Saunders, police power regulation, Slaughterhouse cases, Supreme Court
Abstract: This article, a review essay of Marcia Angell's Science on Trial, begins by discussing the history of breast implant litigation. The implant litigation was not driven by scientific evidence, but by political posturing by self-proclaimed consumer activist Sidney Wolfe, FDA Commissioner David Kessler, and others, sensationalistic media coverage, public opinion inflamed by revelations that implant manufacturers had not followed up on concerns about the potential health effects of silicone, and a contingency fee system that encourages speculative litigation. Once plaintiffs' attorneys won a few big, early victories through superior lawyering, reliance on junk science, and emotional appeals to juries, this attracted investment by other attorneys and created an irrepressible flood of litigation. Next, this article discusses reforms of the American tort system that would reduce attorneys' financial incentives to bring scientifically-dubious claims. First, courts should establish and enforce strict standards for the admissibility of scientific evidence. Second, the contingency fee system should be replaced with the British conditional fee system. Finally, trial procedures should be reformed to increase the probability that fact-finders will arrive at scientifically-correct judgments. Finally, this article considers and rejects recent proposals to allow plaintiffs in toxic tort cases to recover damages for their illnesses without proof of causation if there is proof of defendant's negligence. Instead, the article proposes a legislative solution, akin to whistle-blower statutes and qui tam provisions, that would permit individuals to bring an action in a federal tribunal against a company that is negligently putting the health of the public at risk.
Abstract: Avoiding "Lochner's error" remains a primary focus of constitutional law and constitutional scholarship. Debate, however, continues regarding just what that error was. In Cass Sunstein's oft-cited 1987 Columbia Law Review article, Lochner's Legacy, Sunstein argues that the Lochner era Court's primary error was not its purported "judicial activism." Rather, the primary problem with Lochner was the Justices' belief that market ordering under the common law was part of nature rather than a legal construct, and formed a baseline from which to measure the constitutionality of state action, rendering redistributive regulations unconstitutional. Lochner's Legacy's understanding of the Lochner era has been widely accepted in legal circles, including by four current Supreme Court Justices. As conservative and liberal Justices continue to battle over the meaning of Lochner and its significance for modern constitutional jurisprudence, the liberal Justices have adopted Lochner's Legacy's historical thesis. This Article examines three major historical claims Lochner's Legacy makes about the Lochner era: (1) that the Lochner era Supreme Court understood the common law "to be part of nature rather than a legal construct"; (2) that the Lochner era Court sought to preserve what it saw as the "natural," "status quo" distribution of wealth against redistributive regulations; and (3) that the abandonment of Lochner resulted from the Supreme Court's recognition that the problem with Lochner and its progeny was that the Court in those decisions mistakenly treated government inaction as the "baseline" to determine the constitutionality of government regulations. This Article argues that all three of these propositions are demonstrably incorrect.
Abstract: This is a review essay of Martin Redish, "The Logic of Persecution." This book wades into the debate over the legacy of the anti-Communism of the late 1940s and 1950s. Its unique contribution is to approach this controversy from the perspective of First Amendment theory, taking into account recent evidence that the Communist Party, USA (CPUSA) was the American arm of the Stalinist Soviet enemy, and was heavily implicated in espionage against the United States. Part I of this Review discusses the Smith Act prosecutions, in CPUSA leaders were prosecuted for promoting violent revolution against the government. This Reviewer agrees with Redish's conclusion that the prosecutions were unconstitutional. However, in judging the Smith Act prosecutions, historians may consider not only constitutional issues, but the moral status of the defendants; whether freedom of expression suffered any lasting harm; and whether the goal of destroying the CPUSA's usefulness to the USSR for espionage was, in context, a particularly important one. Part II of this Review evaluates the infamous blacklist by Hollywood movie studios of members of the CPUSA. Redish concludes, and this Reviewer agrees, it was entirely appropriate - under the First Amendment, and also morally - for businesses and individuals to boycott members of the Stalinist CPUSA. Finally, Part III of this Review discusses whether state and local governments acted within their constitutional authority in refusing to hire CPUSA members as teachers. Redish concludes that school authorities did not violate the First Amendment when they excluded devoted Communists from teaching classes in subject areas that required teachers to pass along a liberal democratic perspective to their students. Part III reviews some objections to Redish's conclusion, and suggests that monitoring compliance with the assigned curriculum would have been an alternative means of accomplishing the government's agenda.
McCarthy era, red scare, First Amendment
Abstract: Michael Klarman's From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality is an important contribution to the scholarly literature on both the history of the civil rights struggle and judicial power more generally. Klarman argues that for much of the twentieth century, the Supreme Court was very reluctant to rule in favor of African American civil rights claimants, and had little impact when it did.
Klarman is right to reject traditional accounts that greatly exaggerated the Supreme Court's willingness and ability to protect minorities. However, he overstates his case. The Court's views on the proper scope of African Americans' rights periodically diverged from that of the political branches of government. The Justices' relative insulation from political pressure; their membership in a different generational cohort than the median voter; the idiosyncrasies of presidential selection of Justices; and the Justices' nationalist inclinations all help explain this result.
Moreover, in at least three types of situations, judicial invalidation of Jim Crow legislation significantly aided African Americans: (1) when such legislation had solved collective action problems among racist whites; (2) when legislation had enabled white actors to externalize the costs of Jim Crow onto society as a whole; and (3) when laws lowered the overall costs of maintaining Jim Crow.
This Review supports these conclusions by closely examining relevant Supreme Court decisions in their historical context, especially Progressive Era cases and Brown v. Board of Education.
Constitutional law, civil rights, legal history
Abstract: Of late, leading legal scholars have argued that the First Amendment should not stand in the way of restrictions on freedom of expression intended to alleviate discrimination. A powerful, normative defense of the First Amendment from the competing claims of the antidiscrimination agenda is therefore greatly needed. This Essay, based on several chapters of You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws (Cato Institute 2003), seeks to provide the outlines of such a defense. Part I of this Essay argues that an unregulated marketplace of ideas is preferable to government restrictions on freedom of expression, not because the marketplace of ideas is efficient and always leads to benign results, but because the alternative of government regulation is far worse. Part II of this Essay defends the ability of judges to enforce a relatively neutral conception of freedom of expression from Stanley Fish and others who argue that "there is no such thing as free speech." Fish and his allies ignore cultural and social incentives and restraints that prevent judges from simply voting in favor of their preferred political outcomes. Part III of this Essay critiques scholars who argue that courts should tolerate partial restrictions on freedom of expression until certain egalitarian goals are met. Such views rely on a naive conception of politics that bears little relation to how political markets actually work. Part IV of this Essay argues that if the courts were to allow the First Amendment to be subordinated to antidiscrimination concerns, authoritarianism would inexorably follow - a conclusion supported by experience with speech restrictions on college campuses and, recently, in Canada. This Essay concludes by pointing out that those legal scholars who are most eager to restrict the First Amendment are ironically among those most in need of its protections.
constitutional law, first amendment, anti-discrimination
Abstract: There are two primary contexts in which junk science arises in the asbestos litigation. The first is misdiagnosis of unimpaired patients as having an asbestos-related lung or chest abnormality. This occurs when an expert claims to find a lung or chest abnormality and states that this abnormality is a manifestation of asbestosis, and the expert is wrong on one or both counts. The need for care in diagnosing asbestosis-related abnormalities is evident. Incipient or marginal asbestosis as picked up on an X-ray bears at least a superficial resemblance to more than 130 other lung inflammations. Many of the experts who diagnose asbestos-related disease are partisan hired guns. Courts should instead insist that neutral experts, retained by the court itself, be used to determine whether plaintiffs in class action cases show signs of asbestos-related disease. Moreover, any physician who testifies regarding a diagnosis of asbestos-related disease should be properly qualified. The appropriate test is the reasonable patient test: would a reasonable person who thought he had the asbestos-related abnormality that he is claiming in litigation go to the testifying physician for a diagnosis? The second important context in which junk science arises in the asbestos litigation is when an impaired plaintiff claims an injury that might be, but is not necessarily, related to asbestos exposure. Asbestos exposure can clearly cause lung cancer, and some scientists believe that other cancers, such as colon cancer, can also be caused by asbestos exposure. However, most instances of lung cancer have nothing to do with asbestos exposure, and even taking a generous view of the evidence, the vast majority of colon cancers and other cancers purported to be linked to asbestos have nothing to do with asbestos exposure. The most pressing causation issue in the asbestos litigation is whether fleeting exposure to minute amounts of asbestos causes disease. Until recently, courts were much too liberal about allowing doctors, especially treating physicians, to testify with respect to causation evidence. Fortunately, beginning in the early 1990s as part of a general trend toward stricter scrutiny of expert evidence, the federal courts have started to crack down on the use of unqualified physicians who seek to testify about causation. State courts should follow their lead. Even if experts testifying regarding causation are qualified, the testimony must, of course, meet the particular jurisdiction's reliability standards. In federal court, this means amended Rule 702, which incorporates the Daubert trilogy. State courts have a hodgepodge of standards. Some states have adopted various versions of the Daubert test, others apply various versions of the Frye general acceptance rule, and still others have idiosyncratic tests. Whatever test is used, courts should serve as gatekeepers that exclude unreliable evidence. If state courts are unwilling to do so, the legislature should step in where appropriate and adopt a state version of federal rule 702.
Asbestos Litigation, Expert testimony
Abstract: In Brown v. Board of Education, the United States Supreme Court invalidated state and local school segregation laws as a violation of the Fourteenth Amendment's Equal Protection Clause. That same day, in Bolling v. Sharpe, the Court held unconstitutional de jure segregation in Washington, D.C.'s public schools under the Fifth Amendment's Due Process Clause. Fifty years after it was decided, Bolling remains one of the Warren Court's most controversial decisions. The controversy reflects the widespread belief that the outcome in Bolling reflected the Justices' political preferences and was not a sound interpretation of the Due Process Clause. The Bolling Court stands accused of inventing the idea that due process includes a guarantee of equal protection equivalent to that of the Fourteenth Amendment's Equal Protection Clause. A careful analysis of Bolling v. Sharpe, however, reveals some surprises. First, the almost universal portrayal of Bolling as an opinion relying on an equal protection component of the Fifth Amendment's Due Process Clause is incorrect. In fact, Bolling was a substantive due process opinion with roots in Lochner era cases such as Buchanan v. Warley, Meyer v. Nebraska, and Pierce v. Society of Sisters. The Court, however, chose to rely explicitly only on Buchanan because the other cases were too closely associated with Lochner. Another surprise is that the proposition that Bolling has come to stand for, that the Fifth Amendment prohibits discrimination by the Federal Government, was not simply made up by the Supreme Court, but has a basis in longstanding precedent. Finally, Bolling is an important example of the distorting effect of Lochnerphobia on Supreme Court jurisprudence. Bolling would have been a much stronger opinion had it been willing to explicitly rely on Lochner era precedents such as Meyer, and to employ a more explicitly Lochnerian view of the Due Process Clause.
Civil rights, Equal protection
Abstract: This Working Paper discusses the appropriate distinction between scientific and non-scientific evidence. The author concludes that scientific expert evidence is based on theories and/or data that can be subjected to objective rational criticism, while non-scientific expert evidence is based on an expert's experience and/or training. Next, the Working Paper discusses the appropriate interpretation of Federal Rule of Evidence 702 in the context of non-scientific expert testimony. Rule 702 requires that such testimony be based on expert "knowledge" and be helpful to the jury. To meet the knowledge requirement, trial courts must ensure that a proffered non-scientific expert is either testifying from within a legitimate, recognized field of expertise, or is otherwise able to prove to the court that his testimony is based on true expertise. With regard to the helpfulness requirement, this paper argues that because non-scientific testimony is, by definition, not objectively refutable, attorneys will have strong incentives to hire venal experts or "outliers," those whose views are outside the mainstream. Adversarial non-scientific expert testimony is therefore unlikely to be helpful to the jury. The only way to ensure that non-scientific expert testimony represents mainstream expert opinion, and not the idiosyncratic results of expert-shopping by a party, is for courts to appoint their own experts, either in place of or in addition to the parties' experts.
Abstract: Sexual harassment law has become a serious threat to freedom of speech in the context of "hostile environment" claims. Freedom of association is under attack by state and local laws that ban discrimination on the basis of sex in public accommodations, with the phrase "public accommodations" defined to include private clubs and organizations. Religious employers, such as church schools, have seen their free exercise rights challenged by a series of lawsuits alleging sex discrimination for actions taken in accordance with the employers' religious beliefs. Courts generally have been unsympathetic to constitutional defenses to anti-discrimination lawsuits. The Supreme Court has led the way by consistently ruling that the government has a compelling interest in eliminating discrimination that trumps civil liberties. The compelling interest test is applied without regard to the specific facts of the case at bar. The author concludes that the Court's application of the compelling interest test permits courts to render decisions based on vague ideological commitments that have no basis in the Constitution. There are also many non-constitutional reasons that civil liberties should be protected from encroachment by anti-discrimination laws. Among other things, concern for civil liberties reflects appropriate skepticism of concentrating power in the hands of the government; offers protection of individual and group autonomy, including the autonomy of those protected by anti-discrimination laws; shields unpopular minority groups from discriminatory enforcement of anti-discrimination laws; limits church-state conflict; and protects against overly-zealous enforcement of anti-discrimination laws in contexts where such enforcement creates a clear net social loss.
Abstract: The American judiciary traditionally had a laissez-faire approach toward the admissibility of most categories of expert testimony. This approach ended in federal courts when the U.S. Supreme Court adopted a reliability test for the admissibility of expert testimony in a series of three decisions: Daubert v. Merrell Dow Pharmaceuticals, Inc., General Electric Co. v. Joiner, and Kumho Tire Co., Ltd., v. Carmichael. An amendment to Federal Rule of Evidence 702 in 2000 then codified a stringent interpretation of the "Daubert trilogy." Many states also have adopted some version of the Daubert reliability test.
Contrary to many early predictions, the consequences of Daubert v. Merrell Dow Pharmaceuticals and its progeny have been quite positive. Contrary to pre-Daubert practice, all expert testimony is now scrutinized for reliability before admitted into court. The result has been a significant decline in the presentation of "quackspertise" in the courts.
Nevertheless, Daubert has several significant limitations.
First, many state courts have declined to adopt it, and have instead retained more liberal rules of admissibility, some of which amount to a "let-it-all-in" philosophy.
Second, some federal judges simply refuse to acknowledge the sea change that has occurred in the law of expert testimony, and continue to rely on older, more inclusionary precedents.
Third, Daubert has been ineffective in limiting the use of junk science by prosecutors in criminal cases. Finally, Daubert is a poor match for certain kinds of expert testimony. Specifically, Rule 702 and the Daubert trilogy are ill-equipped to deal with "connoisseur" testimony that arises from a legitimate field of expertise, but whose reliability is ultimately dependent on the personal credibility of the testifying expert.
This paper addresses each of these limitations in turn, and suggests that the relevant problems demand resolution before one can conclude that the Daubert revolution is complete.
Bendectin, forensic scientists, Frye, general acceptance test, Liquid Dynamics Corp., products liability, quality control, toxic tort litigation, unsound testimony
Abstract: For decades, legal scholars have recognized the problem of physicians testifying beyond their expertise in medical malpractice cases. This article explains why courts have historically been liberal about admitting testimony by unqualified or marginally-qualified experts in malpractice cases, discusses recent legislative and judicial innovations that have tightened the standards for admitting medical experts, and proposes a new "reasonable patient" rule that balances the need to ensure that plaintiffs with worthy claims are able to procure expert testimony with methods of assuring that only competent experts will testify.
Abstract: In Boy Scouts of America v. Dale, the Supreme Court ruled that the Scouts has a First Amendment expressive association right to exclude gay adult volunteers. The reaction to Dale has divided along ideological lines. Conservatives generally support Dale because in their eyes it prevents government from taking sides in the culture wars. "Progressives," including many liberals who otherwise have strong civil libertarian instincts, oppose Dale because it seems to deal a blow to gay rights. Progressives also fear that organizations that wish to discriminate against other groups will rely on Dale for constitutional exemptions from anti-discrimination laws. As a legal matter, however, Dale was not about the Kulturkampf between gay rights activists and their conservative opponents, nor was it about a general "right to discriminate." Rather, the underlying issue in Dale was whether a private, non-profit expressive association has a First Amendment right to discriminate to prevent dilution of its message. Despite general liberal opposition to Dale, the opinion may protect some of the left's favorite causes. Part I briefly discusses the history of the expressive association right and its relationship to anti-discrimination law. Part II argues that Dale provides a constitutional defense to anti-discrimination laws by nonprofit organizations when the organizations' ideology requires discrimination. As discussed in Part II, both white and black racist and racialist groups have a right to exclude members of other races. Part III explains that the most significant nonprofit organizations with an ideological commitment to discrimination are not overtly racist organizations, but elite private universities that engage in racial preferences in favor of minority applicants. Private universities faced with reverse discrimination lawsuits may find constitutional respite in the right to expressive association if they are willing to admit that they engage in racial preferences. One way organizations protect their ability to express a particular message is by banning their opponents from speaking in their organizations. California's Leonard Law makes university speech codes illegal, and several state constitutions arguably do the same. Part IV opines that private university speech codes are protected against hostile regulations by the expressive association right recognized in Dale.
Abstract: The right to join with other people to promote a particular outlook, known as the right of expressive association, is a necessary adjunct to the right of freedom of speech, which is protected by the First Amendment of the United States Constitution. In Boy Scouts of America v. Dale, the United States Supreme Court found that the Boy Scouts of America had a First Amendment expressive association right to exclude a homosexual adult volunteer. Dale is likely to prove to be one of the most important First Amendment cases of recent years, because the Court enforced a broad right of expressive association against the competing claims of an antidiscrimination law. The right to expressive association had languished in obscurity for more than two decades after the Supreme Court articulated it in the late 1950s and early 1960s in the course of protecting civil rights activists from racist Southern governments. Controversy over constitutional protection of expressive association arose in the 1980s, when private associations claimed that it protected their right to discriminate when necessary to pursue the associations' goals. The Supreme Court seemed aghast that the expressive association right was being used as a tool of those who would seek to use its protection of their associative status in order to discriminate. In a series of opinions in the mid to late 1980s, the Court both narrowly defined the circumstances in which expressive association rights are impinged, and suggested that antidiscrimination laws are always "compelling government interests" sufficient to override these rights. The right of expressive association had been significantly weakened. Dale, however, dramatically revived the right of expressive association. The Court found that the Boy Scouts had an expressive association right to exclude gay scoutmasters even though the Scouts' anti-homosexual activity policy was neither well-publicized nor especially central to its mission. Moreover, the Court rejected New Jersey's claim that the law was justified by the state's compelling interest in eradicating discrimination against homosexuals. The essay examines the right of expressive association and the consequences of its reinvigoration by the Supreme Court in Dale. Part I recounts the ups and downs of the right from its inception in civil rights cases, to its low ebb in the 1980s, to its reinvigoration in Dale. Part II discusses some of the scholarly commentary on Dale and concludes that the right to expressive association after Dale will continue to be a broad one, with some limitations. Part III discusses some of the post-Dale decisions that support the interpretation of Dale as expounding a broad-based expressive association right fully applicable to a variety of situations. Finally, Part IV looks at some of the untapped potential uses of the right. In particular, Dale will often shield religious associations from intrusive antidiscrimination laws.
Expressive association, Discrimination, Freedom of Speech, First Amendment
Abstract: Because Plessy v. Ferguson and Lochner v. New York were decided within a decade of each other, and are two of the most maligned Supreme Court opinions of all time, legal scholars and historians have naturally been inclined to try to find commonalities between the two opinions. The history of the Berea College v. Kentucky case shows that this anachronistic approach is misguided. Plessy and Lochner were not cut from the same cloth; in the late 19th and early 20th centuries, the statism and racism of Plessy went hand in hand, while the skepticism of state power reflected in Lochner was a weapon in the battle against state-sponsored segregation. In 1908, just three years after the Court decided Lochner, the battle between the ideologies reflected in Plessy and Lochner reached the Supreme Court in Berea College. The Court chose to evade the conflict. Compared to Plessy's blunt endorsement of racism and state-sponsored segregation, that evasion, while hardly courageous, reflected a change in attitude toward the constitutionality of state-enforced segregation in the private sector that would come to full fruition less than a decade later in Buchanan v. Warley, in which the Supreme Court invalidated a residential segregation law.
Abstract: The Supreme Court's decision last term in Boy Scouts of America v. Dale holding that the Boy Scouts had a First Amendment expressive association right to exclude a gay adult scoutmaster is one of the most significant, and positive, recent developments in civil liberties jurisprudence. When conflicts between antidiscrimination laws and First Amendment rights first arose in the 1970s, courts simply refused to acknowledge that antidiscrimination laws sometimes trespassed on constitutional rights. The Supreme Court finally acknowledged in the 1980s that antidiscrimination laws could potentially impinge on First Amendment rights. Instead of enforcing those rights, however, the Court either denied that the First Amendment was implicated in any particular case, or applied a toothless "compelling interest" test that in effect exempted antidiscrimination laws from the strictures of the First Amendment. Lower courts seized and expanded upon these decisions to the point where antidiscrimination laws gradually became a significant menace to freedom of speech, freedom of expressive association, and religious freedom. For example, courts held that an injunction creating a prior restraint on speech was appropriate in a hostile environment case; that a Black separatist organization could be compelled to admit whites to its meetings; and that the government could force a Catholic university to fund student organizations that engaged in political and social advocacy contrary to Catholic doctrine. Dale has significantly reduced the threat antidiscrimination laws once posed to constitutionally-protected civil liberties. Although Dale was a 5-4 decision, with the conservative Justices in the majority, all nine Justices seemed to agree that the First Amendment must be enforced even when the implementation of antidiscrimination laws is at stake. Despite lip service paid to precedents applying the compelling interest test to overcome First Amendment restrictions on antidiscrimination laws, neither side discussed whether the government has a compelling interest in eradicating discrimination against homosexuals. Dale suggests the Court has reached a consensus that defendants charged with violating antidiscrimination laws are generally entitled to the same full First Amendment protection as defendants charged with violating other important laws. Antidiscrimination laws, then, have been constitutionally normalized.
Abstract: This essay is a review of Julie Novkov's "Constituting Workers, Protecting Women: Gender, Law, and Labor in the Progressive and New Deal Years". The book, which discusses the controversy over "protective" laws for women, has some important strengths. Novkov deserves praise for considering a wide range of Lochner-era cases and for reading many of the related legal briefs, an often overlooked but extremely important source for constitutional history. Novkov also provides some compelling analysis. For example, she is one of the few scholars to recognize that the liberal Holden v. Hardy and not the strict Lochner v. New York was the leading case on the constitutionality of protective labor legislation case for much of the so-called Lochner era. The book is also very good at its primary task - explaining how considerations of sex affected legal arguments regarding protective laws for workers during the period studied. On the other hand, several flaws make "Constituting Workers, Protecting Women" less valuable than it might have been. First, Novkov pays almost no attention to any form of economic analysis. For example, Novkov never seriously considers whether economic logic suggests that maximum hours laws or minimum wage laws that applied only to female workers actually aided them. Novkov also fails to discuss the empirical evidence regarding the effect of sex-specific protective labor laws. Moreover, Novkov shows no interest in the public choice aspects of protective labor legislation for women, noting only in passing that protective legislation was often promoted by labor unions that excluded women to prevent women from competing for jobs held or sought by union members. A second problem with "Constituting Workers, Protecting Women" is that its perspective on constitutional change overemphasizes the importance of legal argument at the expense of both important personalities and crucial political developments. For example, remarkably for a book by a political scientist about constitutional law that culminates in the New Deal era, Franklin Roosevelt's name does not appear in the index. A third problem with "Constituting Workers, Protecting Women" is that Novkov overstates the importance of the debate over protective laws for women in the general debate over the constitutionality of police power legislation. And finally, Novkov fails to grapple seriously with the views of judges such as Justice George Sutherland, who invalidated protective laws for women in part because these classical liberal judges sincerely believed in legal equality for women. Despite the reservations noted above, "Constituting Workers, Protecting Women" is recommended for readers interested in constitutional, labor, and women's history. While it does not deliver everything the author promises, or that this reviewer would have liked to have seen, it is a cogent account of an important legal and historical controversy. The definitive book on protective labor legislation and women during the Lochner era, however, remains to be written.
Law & Humanities, Constitutional Law, Labor Law, Employment law, Women & the law
Abstract: This paper is a critique of Margaret Berger and Aaron Twerski, Uncertainty and Informed Choice: Unmasking Daubert, forthcoming in the Michigan Law Review. Berger and Twerski propose that courts recognize a cause of action that would allow plaintiffs who claim injury from pharmaceutical products, but who do not have sufficient evidence to prove causation, to recover damages for deprivation of informed choice. Berger and Twerski claim inspiration from the litigation over allegations that the morning sickness drug Bendectin caused birth defects. Considering the criteria Berger and Twerski suggest for their proposed cause of action in the context of Bendectin, it appears that a pharmaceutical manufacturer could be held liable for failure to provide informed choice: (a) even when there was never any sound scientific evidence suggesting that the product caused the harm at issue, and there was an unbroken consensus among leading experts in the field that the product did not cause such harm; (b) when the product prevented serious harm to a significant number of patients, and prevented substantial discomfort to a much greater number, even when there were no available alternative products; (c) when a plaintiff claims that she would not have taken the product had she been informed of an incredibly remote and completely unproven risk; and (d) when the defendant is unable to prove a negative - that the product in question definitely did not cause the claimed injury. No rational legal system would allow such a tort. Putting the Bendectin example aside, the informed choice proposal has the following additional weaknesses: (1) it invites reliance on unreliable junk science testimony; (2) it ignores the fact that juries are not competent to resolve subtle risk assessment issues; (3) it reflects an unwarranted belief in the ability of juries to both follow limiting instructions and ignore their emotions; (4) it ignores the problems inherent to multiple trials - even if defendants were to win most informed choice cases, safe products could still be driven off the market by a minority of contrary verdicts; (5) it ignores the inevitable costs to medical innovation as pharmaceutical companies scale back on researching product categories that would be particularly prone to litigation; (6) to preempt litigation, pharmaceutical companies would overwarn, rendering more significant warnings less useful; and (7) FDA labeling requirements would arguably preempt the proposed cause of action.
Products liability, Pharmaceuticals, Scientific evidence
Abstract: This article discusses hostile regulation of Chinese laundries in the American West from the 1860s to the early twentieth century. Anti-Chinese laundry laws generally took one of four forms: licensing legislation, maximum hours laws, zoning ordinances, and taxation. These laws were almost always facially neutral. The laundrymen challenged dozens of laundry ordinances in court. State courts faced with legal challenges by Chinese laundrymen to laundry regulations generally upheld the laws on police power grounds, but federal courts usually invalidated them. Some of the latter opinions preceded the infamous Lochner case by decades, but anticipated Lochner's reasoning and rhetoric. In Lochner, decided in 1905, the Supreme Court invalidated a law that restricted the hours bakers could work. The opinion ushered in an era in which the Court actively reviewed economic regulations to ensure that did not impinge on freedom of contract without valid justification. Traditional legal scholarship has criticized Lochnerian jurisprudence on three grounds: (1) judicial protection of economic liberties during the Lochner era was based on the reactionary political views of the judges involved; (2) courts invalidated progressive legislation meant to reign in corporate power and ameliorate the plight of the poor and vulnerable; and, (3) Lochnerism helped the wealthy and powerful at the expense of the rest of society, especially the poor and members of minority groups. The history of the anti-Chinese laundry laws contradicts the received wisdom. First, pro-Chinese laundry decisions fail to reveal economic class bias, but do show the courts' commitment to natural rights/free labor theory and opposition to "class legislation." Second, the history discussed in this paper provides evidence that much regulatory legislation was neither wise nor humane, but anti-competitive and discriminatory. And, third, in the laundry cases Lochnerism protected the vulnerable and disenfranchised Chinese from hostile regulations.
Abstract: This article discusses hostile regulation of Chinese laundries in the American West from the 1860s to the early twentieth century. Anti-Chinese laundry laws generally took one of four forms: licensing legislation, maximum hours laws, zoning ordinances, and taxation. These laws were almost always facially neutral.
The laundrymen challenged dozens of laundry ordinances in court. State courts faced with legal challenges by Chinese laundrymen to laundry regulations generally upheld the laws on police power grounds, but federal courts usually invalidated them. Some of the latter opinions preceded the infamous Lochner case by decades, but anticipated Lochner's reasoning and rhetoric.
Traditional legal scholarship has criticized Lochnerian jurisprudence on three grounds: (1) judicial protection of economic liberties during the Lochner era was based on the reactionary political views of the judges involved; (2) courts invalidated progressive legislation meant to rein in corporate power and ameliorate the plight of the poor and vulnerable; and, (3) Lochnerism helped the wealthy and powerful at the expense of the rest of society, especially the poor and members of minority groups.
The history of the anti-Chinese laundry laws contradicts the received wisdom. First, pro-Chinese laundry decisions fail to reveal economic class bias, but do show the courts' commitment to natural rights/free labor theory and opposition to "class legislation." Second, the history discussed in this paper provides evidence that much regulatory legislation was neither wise nor humane, but anti-competitive and discriminatory. And, third, Lochnerism protected the vulnerable and disenfranchised Chinese from hostile regulations.
Abstract: Since the issue first arose in earnest in the 1970s, courts have struggled to create rules for causation in toxic tort cases that are both consistent with longstanding tort principles and fair to all parties. Faced with conflicting and often novel expert testimony, scientific uncertainty, the gap between legal and scientific culture, and unprecedented claims for massive damages, common-law courts needed time to adjust and accommodate themselves to the brave new world of toxic tort litigation. Eventually, however, courts around the country reached a broad consensus on what is required for a toxic tort plaintiff to meet his or her burden of proof.
While there is a voluminous scholarly literature on various aspects of toxic tort litigation, this Article's unique contribution is to articulate the new consensus on causation standards, document and criticize the various ways plaintiffs attempt to evade these standards, and defend the courts' adherence to traditional notions of causation against their critics.
Part I of this Article explains that to prove causation in a toxic tort case, a plaintiff must show that the substance in question is capable, in general, of causing the injury alleged, and also that exposure to the substance more likely than not caused his injury. When a plaintiff was exposed to a single toxin from multiple sources, to prove causation by a specific defendant the plaintiff must show that the actions of that defendant were a “substantial factor” in causing the alleged harm.
Part II discusses plaintiffs' attempts to evade these standards by hiring experts to present various types of unreliable causation evidence. Examples of such evidence include testimony based on high-dose animal studies, anecdotal case reports, analogizing from the known effects of “similar” chemicals, preliminary epidemiological studies that have not been peer-reviewed, and differential etiologies used to “rule in” an otherwise unknown causal relationship. Additionally, when multiple defendants have contributed to the plaintiffs' exposure to a potentially toxic substance, plaintiffs often present experts who claim, with no reliable scientific grounding, that the level of exposure (“dose”) is irrelevant to causation.
Part III of this Article argues that courts should be steadfast in requiring toxic tort plaintiffs to meet their burden of proof. Traditional tort principles require that plaintiffs bear the burden of proving actual causation by a preponderance of the evidence, not merely that they were exposed to a risk. To hold otherwise and essentially shift the burden to defendants to disprove causation would open the floodgates to all manner of speculative claims, with potentially devastating consequences for Americans' well-being. Similarly, with regard to cases in which a plaintiff alleges injury after exposure to a toxin from multiple sources, a given defendant may only be held liable if the plaintiff proves by a preponderance of the evidence that exposure to that defendant's products was a “substantial factor” in causing that injury. To hold otherwise would amount to an implicit adoption of a system of broad, collective liability that courts have rejected when the issue has been raised explicitly. This section concludes by discussing the negative consequences that arise from speculative toxic tort litigation unsupported by reliable scientific evidence.
DeLuca v. Merrell Dow Pharmaceuticals, EPA , epidemiology, General Electric Co. v. Joiner, Lofgren v. Motorola, Lohrmann v. Pittsburgh Corning Corp., NIOSH, OSHA, Reference Manual on Scientific Evidence, Restatement (Second) of Torts
Abstract: Unlike earlier generations of labor historians, the current generation recognizes that racism suffused, and to some extent even motivated, organized labor from the post-Civil War period through at least the late 1930s. However, labor historians continue to largely ignore the significant role "progressive" labor laws played in giving racist labor unions the power to exclude African-Americans and other minorities from the labor market. This article, based on chapter 3 of my book, "Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal" (Duke University Press 2001), discusses how labor laws granting railroad unions monopoly power ? especially the Railway Labor Act ? were crucial to the exclusion of African-Americans from many railroad occupations.
Abstract: This paper is a critique of Margaret Berger and Aaron Twerski, "Uncertainty and Informed Choice: Unmasking Daubert," forthcoming in the Michigan Law Review. Berger and Twerski propose that courts recognize a cause of action that would allow plaintiffs who claim injury from pharmaceutical products, but who do not have sufficient evidence to prove causation, to recover damages for deprivation of informed choice. Berger and Twerski claim inspiration from the litigation over allegations that the morning sickness drug Bendectin caused birth defects. Considering the criteria Berger and Twerski suggest for their proposed cause of action in the context of Bendectin, it appears that a pharmaceutical manufacturer could be held liable for failure to provide informed choice: (a) even when there was never any sound scientific evidence suggesting that the product caused the harm at issue, and there was an unbroken consensus among leading experts in the field that the product did not cause such harm; (b) when the product prevented serious harm to a significant number of patients, and prevented substantial discomfort to a much greater number, even when there were no available alternative products; (c) when a plaintiff claims that she would not have taken the product had she been informed of an incredibly remote and completely unproven risk; and (d) when the defendant is unable to prove a negative - that the product in question definitely did not cause the claimed injury. No rational legal system would allow such a tort. Putting the Bendectin example aside, the informed choice proposal has the following additional weaknesses: (1) it invites reliance on unreliable junk science testimony; (2) it ignores the fact that juries are not competent to resolve subtle risk assessment issues; (3) it reflects an unwarranted belief in the ability of juries to both follow limiting instructions and ignore their emotions; (4) it ignores the problems inherent to multiple trials - even if defendants were to win most informed choice cases, safe products could still be driven off the market by a minority of contrary verdicts; (5) it ignores the inevitable costs to medical innovation as pharmaceutical companies scale back on researching product categories that would be particularly prone to litigation; (6) to preempt litigation, pharmaceutical companies would overwarn, rendering more significant warnings less useful; and (7) FDA labeling requirements would arguably preempt the proposed cause of action.
Abstract: Contrary to their modern reputation as egalitarian liberals, many of the original progressive architects of American labor reform were partisans of human inequality. The labor legislation they pioneered was, in important respects, designed to exclude immigrants, women, and African Americans from some or all of the labor market. The first part of this article discusses the origins and development of a progressive economic ideology that favored, indeed demanded, the exclusion of various so-called "defective" groups from the American labor market. Xenophobia, race prejudice, and sexism certainly were not new to the United States in the Progressive Era. What was new was, first, the idea that protecting deserving workers required the social control of undeserving workers, enough so that labor-legislation advocates defended the exclusion of purportedly unfit minority workers not as an ostensibly necessary evil, but as a positive social benefit. Second, the exclusion of undesirables acquired a new scientific legitimacy: the Progressive Era marked not only the advent of the welfare state but also an extraordinary vogue for race thinking and for eugenics, the social control of human breeding. The new science of eugenics turned "undesirables" into the "hereditarily unfit" and elevated exclusion to a matter of national and racial health. And the new sciences of society, especially economics, showed how unfit workers wrongly lowered the wages and employment of racially superior groups. The second part of this article discusses the practical impact progressive ideology had on labor reform in the 1930s. The intellectual heirs of progressivism used the prevailing economic crisis to promote previously unachievable government involvement in the labor market to the detriment of those deemed excludable. The Davis-Bacon Act of 1931, which regulated the wages paid on construction projects paid for by the federal government, was designed to exclude African Americans and other workers deemed "defective" from the labor market for federal construction projects. The influence of the progressive economists' belief that low-paid African American workers were "defectives" who should not be permitted to compete on price with white workers continued during the New Deal. Like jobs held by women and children, jobs held by African Americans were often considered "substandard" by New Dealers and were slated for permanent elimination. This mentality was reflected in the Fair Labor Standards Act of 1938, which imposed a high uniform national minimum wage, even though its architects knew that this would lead to substantial unemployment among African Americans. Finally, the 1930s witnessed the resurrection and expansion of single-sex, state minimum-wage laws in the 1930s. These laws were upheld by a Progressive Supreme Court in 1937. The Court adopted the conventional wisdom in contemporary liberal circles: women who could not command a "living wage" as defined by statute should be expunged from the labor force. In short, in the early 20th century American labor reformers promoted an ideology that advocated excluding from the workplace those they regarded undesirable, undeserving, or defective. Once progressive ideology came to dominate government policy during the Great Depression, labor legislation was enacted that intentionally set out to exclude “undesirable” workers from the workplace.
Beatrice Webb, Edward A. Ross, Edward Bemis, Emergency Quota Act of 1921, Eugene Debs, F.D.R., Fabianism, Franklin Roosevelt, Gresham’s law, Immigration Act of 1924, John R. Commons, melting pot, Sidney Webb, Social Darwinism
Abstract: This essay is a comment on Gabriel J. Chin's article, "Unexplainable on Grounds of Race: Doubts About Yick Wo". I conclude that Professor Chin's revisionism is a useful corrective to the whiggish view that interprets Yick Wo as a surprisingly modern civil rights decision in an era of rampant hostility to racial minorities. But Professor Chin's revisionism goes too far, in that he downplays or ignores the elements of the Yick Wo opinion that, however haltingly or modestly, advanced equality under the Constitution: the Court's holding that resident aliens, including Chinese resident aliens, were entitled to the full protections of the Fourteenth Amendment; the Court's unwillingness to countenance racial hostility as a valid police power justification for discriminatory economic legislation; and the Court's willingness, as early as 1912, to interpret Yick Wo as prohibiting legislation intending to discriminate against ethnic minorities.
civil rights, constitutional doctrine, due process, equal protection, fundamental rights, Jack Chin, jurisprudence, Lochner, racial classification, racial hostility, special legislation, state interference, Supreme Court, treaty case
Abstract: An edited and revised version of this paper later became Chapter 1 of Only One Place of Redress: African Americans, Labor Organizations and the Court from Reconstruction to the New Deal (Duke University Press 2001). In the decades after the Civil War, southern states attempted to prevent African-Americans from migrating by passing emigrant agent laws. These laws essentially banned interstate labor recruitment. The Supreme Court upheld emigrant agent laws in the little-known case of Williams v. Fears in 1900. The history of emigrant agent laws provides evidence that: (1) state action played a larger role in discrimination against African-Americans than is generally acknowledged; (2) laissez-faire jurisprudence was potentially helpful to disenfranchised African-Americans; and (3) the federalist structure of the U.S. provided African-Americans with opportunities to improve their lot through internal migration. Chapter 1 of the book Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal (Duke University Press 2001) is based on this Article.
Civil Rights, Migration, Economics
Abstract: In the decades after the Civil War, southern states attempted to prevent African-Americans from migrating by passing emigrant agent laws. These laws essentially banned interstate labor recruitment. The Supreme Court upheld emigrant agent laws in the little-known case of Williams v. Fears in 1900. The history of emigrant agent laws provides evidence that: (1) state action played a larger role in discrimination against African-Americans than is generally acknowledged; (2) laissez-faire jurisprudence was potentially helpful to disenfranchised African-Americans; and (3) the federalist structure of the U.S. provided African-Americans with opportunities to improve their lot through internal migration.
Abstract: This article contests the view that `stages of development` determine a uniquely appropriate set of production and marketing strategies for a given industry in a given period. Looking closely at the British automobile industry after World War II, it instead presents the argument that opportunities for significant choices between more or less flexible technologies and organizational forms constitute a continuous feature of modern economic history. Moreover, piecemeal borrowing and selective adaptation have been more common than wholesale imitation of any particular system, and modification and hybridization of imported technologies represent not resistance to `foreign` elements, but creative attempts to fit those elements to local conditions.
Abstract: After years of neglect, the loser-pays idea has begun to receive considerable attention in the United States. In this Article, the authors review the compelling arguments in favor of two-way fee-shifting. Among other things, the loser-pays rule reduces speculative litigation, and provides a remedy for victims of vexatious litigation. The authors then survey recent developments regarding the loser-pays rule. First, the authors discuss the remarkable attempt by congressional Republicans to enact a loser-pays rule for certain categories of litigation in federal courts. Next, the authors discuss the recent enactment of limited but distinctive loser-pays rules in Oklahoma and Oregon. In Oklahoma, a defendant can choose to invoke the provision by making an offer of judgment. If he does, the plaintiff who turns down the offer and is awarded less at trial can be liable for attorney's fees incurred by the defendant after the offer. In Oregon, a long list of one-way fee-shifting statutes were converted into two-way statutes. Third, the authors review recent changes to the loser-pays rule in Alaska, the only American jurisdiction with a long-standing, generally applicable, two-way fee-shifting system. Remarkably, loser-pays remains popular among both plaintiffs' and defense attorneys in Alaska. The authors conclude with the prediction that further experiments with loser-pays are likely in the near future.
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