Volume 67, No. 1
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 Masters 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
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.
Earl Martin et al.
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 all white 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.
A Challenge Against Former NFL Players’ Future Lawsuits Against the NFL and Their Former Teams: New Scientific Information and Assumption of Risk.
Your Shipment Has Been Delayed: Liability of Shippers and Carriers for Loading and Securing Cargo in Iowa.
Jackson G. O’Brien