Reviewing the law reviews.

• Author: Youngdale, Elizabeth M.

Law Review Highlights:

Tort law has long been a means of dealing with behavior considered undesirable by society outside of the criminal law area. Crimtorts, however, is an area of law where criminal law and tort law intersect. It is in this arena where, generally, large corporations have been punished--through damage awards--for committing acts that might otherwise be dealt with criminally. And while some consider that the effectiveness of crimtorts has been limited by courts' recent reluctance to certify class actions, there has been increased discussion of criminalizing products liability law where companies are manufacturing lethal products. Additionally, there has been a call to hold manufacturers vicariously liable for injuries done by criminal products. In the last few months, several articles have considered the different ways in which the law of torts and criminal law interact.

In his article, Crimtorts, Class Actions, and the Emerging Tort Method, (1) Byron Stier looks at the trend in courts recently to reject class certification for tort claims and the perceived effect it has had on the area of crimtorts. He does not consider fewer class actions necessarily a signal of the end of the usefulness of crimtorts. While increased reliance on individual suits may weaken some of the effectiveness of tort goals, one of the potential areas of concern for such actions--negative-value-suit financing--might be remedied by a loser-pays system. Professor Steir proposes that these types of solutions might help off-set some of the negative results of fewer class actions and go a long way toward maintaining the effectiveness and goals of crimtorts.

On the other hand, Frank Vandall considers the feasibility of criminalizing products liability actions as a means of curbing unacceptable behavior in companies. (2) In a hearing called by Senator Arlen in 2006, the Senate Judiciary Committee listened to testimony about just such a proposal. Professor Randall analyzes three different concerns with legislation that would criminalize products liability: the danger of political abuse, the possibility for pre-emption of state law, and the issue of potential non-enforcement of such a federal statute He concludes that the criminalization of products liability suits would be an ineffective, costly solution to problems within the civil litigation system.

A third article considers imposing liability vicariously on manufacturers for harm caused by criminal products--those products that are designed to harm or kill. In his article, Respondeat Manufacturer: Imposing Vicarious Liability on Manufacturers of Criminal Products, (3) George Nation suggests that imposing such liability would encourage manufacturers to reduce the risk their dangerous products place on innocent bystanders who are injured by people using products for illegal purposes. He also contends that this theory would help spread the economic cost where damages are awarded against companies and then passed on to those customers who are committing the illegal acts.

The following list is a selective bibliography of current law review literature thought to be of interest to civil defense counsel.

U.S. and International

Damages

Kendra L. Berardi, Note, Emergency Medical Treatment and Active Labor Act--One of These Things Is Not Like the Other: The Error of Applying State Medical Malpractice Limits to Damages Awarded Under the Emergency Medical Treatment and Active Labor Act, 30 W. NEW ENG. L. REV. 515 (2008).

Charles H. Breeden & Brian C. Brush, The Plaintiff As Victim and Investor: Prudent Investing and the Calculation of Economic Damages, 14 J. LEGAL ECON. 15 (2008).

Paul Edgar Harold & Tracy L. Cole, Darned If You Due Process, Darned If You Don't! Understanding the Due Process Dilemma for Punitive Damages in Title VII Class Actions, 30 U. ARK. LITTLE ROCK L. REV. 453 (2008).

Keith N. Hylton, A Theory of Wealth and Punitive Damages, 17 WIDENER L.J. 927 (2008).

Jenni Khuu Katzer, A Tale of Two Liberals: Departure at Supreme Court Review of Punitive Damages, 29 WHITTIER L. REV. 625 (2008).

Heather R. Klaassen, Comment, Punishment Defanged: How the United States Supreme Court Has Undermined the Legitimacy and Effectiveness of Punitive Damages, 47 WASHBURN L.J. 551 (2008).

Helmut Koziol, Punitive Damages--A European Perspective, 68 LA. L. REV. 741 (2008).

Nicolette M. Priaulx, A Letter from the UK: Tort Law and Damages for the Unwanted Child, 14 J. LEGAL ECON. 53 (2008).

Ellen S. Pryor, Part of the Whole: Tort Law's Compensatory Failures Through a Wider Lens, 27 REV. LITIG. 307 (2008).

Francesco Quarta, Recognition and Enforcement of U.S. Punitive Damages Awards" in Continental Europe: The Italian Supreme Court's Veto, 31 HASTINGS INT'L & COMP. L. REV. 753 (2008).

Bethany Rabe, Note, The Constitutionality of Split-Recovery Punitive Damage Statutes: Good Policy but Bad Law, 2008 UTAH L. REV. 333.

David T. Raimer, Damages and Damocles: The Propriety of Recoupment Orders As Remedies for Violations of the Establishment Clause, 83 NOTRE DAME L. REV. 1385 (2008).

Michael L. Rustad, The Supreme Court and Me: Trapped in Time with Punitive Damages, 17 WIDENER L.J. 783...