Current Issue

Volume 67, No. 1, 2019

ARTICLES

A Guide to Understanding the Economic Loss Doctrine.

Jeffrey L. Goodman, Daniel R. Peacock & Kevin J. Rutan

The economic loss doctrine prevents a party who suffers only economic
damages from recovering those damages in tort. The doctrine reasons that
contract law—not tort law—provides the appropriate avenue for recovery when
there is no personal injury or physical injury to property. Accordingly, the
doctrine serves to define the boundaries between tort and contract law. It also acts
as a powerful tool for limiting a defendant’s liability and reducing the avenues of
recovery for a plaintiff.

The doctrine is recognized and applied in various fashions across the United
States. However, the doctrine’s application is not uniform, with different
jurisdictions adopting different approaches, exceptions, and limitations. As a
result, judges, lawyers, and legal scholars struggle to track the doctrine’s meaning,
application, and scope within their jurisdiction. This Article seeks to provide a practical guide for understanding the doctrine, analyzing both the function of the
various approaches taken and the rationale behind each approach. First, the
Article provides a brief introduction to the economic loss doctrine, discussing its
basic function and key terms. Second, the Article delves into the doctrine’s history
and explores the reasoning behind the doctrine’s creation. Lastly, the Article
examines the doctrine’s modern application and the various approaches utilized
by different jurisdictions.

 

Does the Claim for Loss of Genetic Affinity Have Any Place in United States Jurisprudence?

Esther Lim Rui Hsien

Assisted reproduction technologies (ART) and in vitro fertilization (IVF)
have changed the lives of many infertile couples, same-sex couples, and single
parents by choice who previously could not have biological children of their own.
However, as ART has become more common, so have errors during the IVF
process. Unfortunately, tort law in the United States has failed to keep pace with
the rapid development of technology. As a result, many victims of IVF mix-ups,
in which the wrong sperm, eggs, or embryos are used during the procedure, are
left without a legal remedy. The Singapore case of ACB v. Thomson Medical Pte
Ltd and Others offers a novel solution to this problem: awarding damages for
“the loss of genetic affinity.” While this Article recognizes the pressing need for
the expansion of tort law to accommodate IVF-related harms, it is the first
scholarly article to evaluate in detail the substantial public policy arguments not
to allow such a claim. A claim for the loss of genetic affinity could cause
psychiatric harm to the child and risks perpetuating the misguided view that
non-biologically related families are less valuable. Further, enshrining genetic
relatedness as a social value worthy of legal protection could inadvertently
contribute to eugenicist or racist attitudes. Finally, overemphasizing the
importance of genetics could influence the decisions of courts in other IVF-related
cases. This Article proposes an alternative claim which stresses the importance of
reproductive autonomy rather than genetic relatedness: a claim for the disruption
of reproductive plans.

 

Absolution for Opting Out of the Contraception Mandate: Substantial Burden Gone Awry.

Patrick J. McNulty & Joseph F. Moser

The contraception mandate requires employer healthcare plans to provide
FDA-approved contraceptive services to women as part of a no-cost preventive
care and screening program. Employers with religious objections can opt out by
sending a certification of exemption to their healthcare representative or a notice
to the government. Their insurers or third-party administrators are then charged
with effectuating the mandate with no further involvement by the employers.
Religious nonprofits objected to this procedure under the Religious Freedom
Restoration Act of 1993 (RFRA), claiming that sending either form substantially
burdened their religious exercise by making them complicit in the delivery of
immoral and evil services.

Originating from dicta in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct.
2751 (2014), this claim is unprecedented and transforms a health-based mandate
into a religious commandment to be obeyed by all. Although the United States
Supreme Court took a pass on judging the validity of this claim in 2016, the debate
surrounding this issue continues unabated. The next intervention by the Supreme
Court should be an unqualified statement that RFRA does not empower a
person—through the ministerial act of sending a single sheet

 

The Vaccine Act After Oil States Energy Services, LLC v. Greene’s Energy Group LLC: Why Special Masers Should Not be Treated so Special.

Jesse D.H. Snyder

In April 2018, the Supreme Court handed down Oil States Energy Services,
LLC v. Greene’s Energy Group, LLC, a decision addressing whether
adjudicative authority vested in the U.S. Patent and Trademark Office’s Patent
Trial and Appeal Board, an Article I tribunal established by the Leahy-Smith
America Invents Act, violated either Article III or the Seventh Amendment of the
U.S. Constitution. The Court held the establishment of that Article I tribunal did
not violate Article III or the Seventh Amendment because the dispute at issue in
Oil States involved public rights not existent at common law, all of which
accorded Congress with authority to bypass Article III courts as the initial
adjudicative forum.

The Court’s reasoning in Oil States provides a vehicle by which the U.S.
Court of Appeals for the Federal Circuit should reconsider its interpretation of
the National Childhood Vaccine Injury Act of 1986 because the current
interpretative regime forces petitioners to litigate claims in an Article I forum that
has arrogated Article III authority over common law claims for vaccination
injuries. In three Parts, this Article reviews the Vaccine Act, discusses how Oil
States affects the constitutional analysis of the statute, and comments on why a
deferential standard of review in favor of Article I tribunals creates a usurpation
of Article III power. The conception of the Vaccine Act was to help injured
children while alleviating exposure to vaccine manufacturers. However well
intended, deferential review of a special master’s findings of fact undermines
judicial authority and hallows the promise that the people today and tomorrow enjoy no fewer rights against governmental intrusion than those who came before.
The Vaccine Act, as interpreted, commandeers a preexisting common law regime
and replaces it with an edifice neither contemplated nor recognized by the
Constitution. Once freed from the constraint of deferential review of factual
findings, the Federal Circuit can restore constitutional order to a statute fraught
with complications over how to address the effects of vaccinations in the United
States. The Vaccine Act will only have a clean bill of health once it adheres to
constitutional strictures.

 

Clark v. Board of School Directors: Reflections After 150 Years.

On April 14, 1868, the Iowa Supreme Court issued its opinion in Clark
v. Board of School Directors, establishing racial integration in public schools
and declaring “all the youths are equal before the law.” The court instructed
the Muscatine School Board to allow Susan Clark to attend a previously allwhite
grammar school, stating “the board cannot, in their discretion, or
otherwise, deny a youth admission to any particular school because of his or
her nationality, religion, color, clothing or the like.”

Now, over 150 years later, we take time to reflect on the impact of this
groundbreaking decision. The following series of Reflections discuss the
history leading up to the Clark decision, the key players, and the lasting impact
this case has had on Iowa law. These Reflections also provide an opportunity
to reflect on the current state of our society and legal system, reminding us to
continue the legacy of Clark by fighting for equality in all areas of the law and
speaking out courageously against injustice.

 

NOTES

A Challenge Against Former NFL Players’ Future Lawsuits Against the NFL and Their Former Teams: New Scientific Information and Assumption of Risk.

Andrew Nordyke

Your Shipment Has Been Delayed: Liability of Shippers and Carriers for Loading and Securing Cargo in Iowa.

Jackson G. O’Brien

 

 

 

 

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