{"title":"Justice Ginsburg's First Decade: Some Thoughts about Her Contributions in the Fields of Procedure and Jurisdiction","authors":"D. Shapiro","doi":"10.2307/4099344","DOIUrl":"https://doi.org/10.2307/4099344","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099344","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68755197","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Justice Ginsburg and the Judicial Role in Expanding “We the People”: The Disability Rights Cases","authors":"S. Bagenstos","doi":"10.2307/4099347","DOIUrl":"https://doi.org/10.2307/4099347","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099347","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68755609","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Bankruptcy Law, Ritual, and Performance","authors":"Donald R. Korobkin","doi":"10.2307/3593385","DOIUrl":"https://doi.org/10.2307/3593385","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593385","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69172821","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Constitution as Countermonument: Federalism, Reconstruction, and the Problem of Collective Memory","authors":"Norman W. Spaulding","doi":"10.2307/3593382","DOIUrl":"https://doi.org/10.2307/3593382","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593382","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69173206","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Assessing the Rights of IRU Holders in Uncertain Times","authors":"A. Subramanian","doi":"10.2307/3593384","DOIUrl":"https://doi.org/10.2307/3593384","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593384","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69172813","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Ethnic but Equal: The Quest for a New Democratic Order in Bosnia and Herzegovina","authors":"A. Mansfield","doi":"10.2307/3593383","DOIUrl":"https://doi.org/10.2307/3593383","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593383","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69172799","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Supreme Court Review of State-Court Determinations of State Law in Constitutional Cases","authors":"H. Monaghan","doi":"10.2307/3593381","DOIUrl":"https://doi.org/10.2307/3593381","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593381","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69172770","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In The Expectations of Consumers,' I examine a much-maligned products liability doctrine that attempts to rest manufacturer liability for defective product designs on the expectations of ordinary consumers. Although I concur with previous commentators who regard the consumer expectations doctrine to date as both undertheorized and unwieldy in application, I also observe the stubborn refusal of a significant minority of jurisdictions to abandon it. Notably, several of these jurisdictions have clung to the doctrine even after the decisive conclusion of the ALI's Restatement (Third) of Torts: Products Liability that consumer expectations are unworthy of recognition as an independent test for design defect. After first describing these treacherous waters, I then enter them by offering a reinvigorated understanding of the consumer expectations doctrine that seeks to capture important aspects of public health and safety concerns that the Restatement formulation excludes and that courts plausibly might be groping toward in their consumer expectations jurisprudence. Rather than permit unguided conjecture by jury members regarding the content of consumer expectations, however, I recommend that the doctrine be redirected specifically toward those aspects of risk perception and evaluation that express important public values regarding the acceptability of product-caused harms, but that cannot be subsumed within a technically-oriented reasonable alternative design standard. Although I attempt to provide both a theoretical foundation for and a practical explication of the consumer expectations doctrine as reconceived in this light, I also note in the Article that the test "should be thought of as a work in progress, subject to debate and revision in the best spirit of the common law."2 Consistent with that ambition, therefore, I am extremely grateful that Professors Henderson and Twerski, who served as Reporters for the Third Restatement, have offered their careful, constructive response to my proposal.3 Space permits me to address here only two of their critiques. The Reporters contend that the reinvigorated consumer expectations test described in The Expectations of Consumers reflects "elitism," first because it permits courts to make judgments that they believe should be made only by the "more populist-oriented branches of government"4 and, second, because it substitutes the "soft technology" of psychology for the free-
{"title":"The Design of Products Liability: A Reply to Professors Henderson and Twerski","authors":"Douglas A. Kysar","doi":"10.2307/3593404","DOIUrl":"https://doi.org/10.2307/3593404","url":null,"abstract":"In The Expectations of Consumers,' I examine a much-maligned products liability doctrine that attempts to rest manufacturer liability for defective product designs on the expectations of ordinary consumers. Although I concur with previous commentators who regard the consumer expectations doctrine to date as both undertheorized and unwieldy in application, I also observe the stubborn refusal of a significant minority of jurisdictions to abandon it. Notably, several of these jurisdictions have clung to the doctrine even after the decisive conclusion of the ALI's Restatement (Third) of Torts: Products Liability that consumer expectations are unworthy of recognition as an independent test for design defect. After first describing these treacherous waters, I then enter them by offering a reinvigorated understanding of the consumer expectations doctrine that seeks to capture important aspects of public health and safety concerns that the Restatement formulation excludes and that courts plausibly might be groping toward in their consumer expectations jurisprudence. Rather than permit unguided conjecture by jury members regarding the content of consumer expectations, however, I recommend that the doctrine be redirected specifically toward those aspects of risk perception and evaluation that express important public values regarding the acceptability of product-caused harms, but that cannot be subsumed within a technically-oriented reasonable alternative design standard. Although I attempt to provide both a theoretical foundation for and a practical explication of the consumer expectations doctrine as reconceived in this light, I also note in the Article that the test \"should be thought of as a work in progress, subject to debate and revision in the best spirit of the common law.\"2 Consistent with that ambition, therefore, I am extremely grateful that Professors Henderson and Twerski, who served as Reporters for the Third Restatement, have offered their careful, constructive response to my proposal.3 Space permits me to address here only two of their critiques. The Reporters contend that the reinvigorated consumer expectations test described in The Expectations of Consumers reflects \"elitism,\" first because it permits courts to make judgments that they believe should be made only by the \"more populist-oriented branches of government\"4 and, second, because it substitutes the \"soft technology\" of psychology for the free-","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2003-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593404","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69172854","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The authors agree with Professor Kysar that the current version of the consumer expectations test for design defectiveness is an amorphous, unprincipled misreading of section 402A of the Restatement (Second) of Torts. And they agree that most courts apply risk-utility balancing in determining design defectiveness. But they disagree with Kysar's proposal to supplement risk-utility balancing with a reinvigorated consumer expectations test based on expert testimony regarding what consumers actually expect in the way of design safety. Judicial reliance on such testimony would be susceptible to result-oriented manipulation by litigants, would not guide manufacturers in making sensible design choices, would pressure courts to exceed the limits of their institutional competence, and would undermine the new Restatement's commitment to making products safer. In the final analysis, Professor Kysar's suggested approach to design liability rests on an unworkable premise, implicit in his article, that the authors reject-that enterprise liability is a worthy, attainable goal toward which courts should strive.
{"title":"Consumer Expectations’ Last Hope: A Response to Professor Kysar","authors":"A. Twerski, J. Henderson","doi":"10.2307/3593403","DOIUrl":"https://doi.org/10.2307/3593403","url":null,"abstract":"The authors agree with Professor Kysar that the current version of the consumer expectations test for design defectiveness is an amorphous, unprincipled misreading of section 402A of the Restatement (Second) of Torts. And they agree that most courts apply risk-utility balancing in determining design defectiveness. But they disagree with Kysar's proposal to supplement risk-utility balancing with a reinvigorated consumer expectations test based on expert testimony regarding what consumers actually expect in the way of design safety. Judicial reliance on such testimony would be susceptible to result-oriented manipulation by litigants, would not guide manufacturers in making sensible design choices, would pressure courts to exceed the limits of their institutional competence, and would undermine the new Restatement's commitment to making products safer. In the final analysis, Professor Kysar's suggested approach to design liability rests on an unworkable premise, implicit in his article, that the authors reject-that enterprise liability is a worthy, attainable goal toward which courts should strive.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2003-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593403","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69173260","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"How to Read Gonzaga: Laying the Seeds of a Coherent Section 1983 Jurisprudence","authors":"Sasha Samberg-Champion","doi":"10.2307/3593406","DOIUrl":"https://doi.org/10.2307/3593406","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2003-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593406","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69172924","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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