Dashing Consumer Hopes: Strict Products Liability and the Demise of the Consumer Expectations Test

The threshold issue in American products liability litigation is whether the product was defective at the time it left the manufacturer\u27s control. Traditionally, courts and scholars define “defect” in three functional categories: manufacturing defects, design defects and marketing defects. American products liability doctrine employs two major tests to determine whether a defect” exists: the seller-oriented risk-utility test and the buyer-oriented consumer expectations test. The Draft of the Restatement Third of Torts: Products Liability, like some American jurisdictions, rejects the “consumer expectations” test as an independent standard in defective warning and design cases. Ironically, this limitation of the use of the consumer expectations test in American products liability doctrine coincides with the European Community\u27s adoption of the consumer-oriented test for European strict products liability cases. This article analyzes these contemporary developments. First, it considers the implications of the European Union\u27s (EU) Council Directive No. 85/374 (European Directive) for American products liability law. It then analyzes the consumer expectations test in light of the purpose of products liability law. Reconsideration of the consumer expectations test suggests that, properly constructed and applied, the consumer-oriented test promotes considerations of safety, equity, and efficiency

Justice Brennan\u27s Gender Jurisprudence

However, less attention has been focused on Justice Brennan\u27s dramatic impact on the Supreme Court\u27s gender jurisprudence. More than any other member of the Court, Justice Brennan recognized the complexity and pervasiveness of sex discrimination and its costs to society as a whole. Brennan\u27s opinions recognized that sex differentiation is largely cultural in origin, rather than based on real gender differences. As a result, Justice Brennan created a truly independent gender jurisprudence, eventually emerging as the architect of the Supreme Court\u27s contemporary test for evaluating claims of sex-based discrimination. Understanding the significance of Brennan\u27s contribution requires an appreciation of the Supreme Court\u27s historical attitude towards sex-based discrimination. Before 1971, the Supreme Court uniformly upheld governmental classifications based on stereotypical and traditional role differences between men and women. Laws routinely classified individuals by gender, treating men and women as occupying separate spheres. Men occupied the sphere of wage-earner, family head and societal actor. Women were assigned the roles of childbearer and rearer, and homemaker. These roles were thought to be mandated by nature and biology. Since men and women performed different roles, they could not stand as equals under the law

The Glass Ceiling in Law Firms: A Form of Sex-Based Discrimination

At a certain level, women lawyers collide with a glass ceiling, an invisible, artificial barrier which prevents women from being promoted to management and leadership positions within a business or firm. The glass ceiling \u27represents a subtle form of sex discrimination - unwritten, generally unspoken, but very pervasive.\u27 Its presence is reflected in trends and statistics which consistently reveal women\u27s underrepresentation in executive and management positions. This article focuses on whether the glass ceiling formed as a result of sex discrimination, blatant or subtle, or whether it formed as a result of women lawyers\u27 differing qualifications or career choices. It explores many aspects of law firm culture, including business development, mentoring, and the demands and pressures associated with becoming a partner. Moreover, it addresses family issues and the effects of family life on succeeding in a law firm environment. Finally, it discusses the effects of sex discrimination, sexual harassment, sex stereotyping, and the devaluation of women in law firm partnership

The Glass Ceiling in Law Firms: A Form of Sex-Based Discrimination

At a certain level, women lawyers collide with a glass ceiling, an invisible, artificial barrier which prevents women from being promoted to management and leadership positions within a business or firm. The glass ceiling \u27represents a subtle form of sex discrimination - unwritten, generally unspoken, but very pervasive.\u27 Its presence is reflected in trends and statistics which consistently reveal women\u27s underrepresentation in executive and management positions. This article focuses on whether the glass ceiling formed as a result of sex discrimination, blatant or subtle, or whether it formed as a result of women lawyers\u27 differing qualifications or career choices. It explores many aspects of law firm culture, including business development, mentoring, and the demands and pressures associated with becoming a partner. Moreover, it addresses family issues and the effects of family life on succeeding in a law firm environment. Finally, it discusses the effects of sex discrimination, sexual harassment, sex stereotyping, and the devaluation of women in law firm partnership

A Feminist View of American Elder Law

ANY discussion of contemporary American elder law must consider gender issues. A number of gender concerns are readily discernible, including workplace and family issues. Significantly, sex-based disparities are increasing within the elderly population. In turn, these disparities exacerbate problems of fairness and equity in meeting intergenerational family needs and expectations. As with childrearing, in contemporary American society, the major caregiving responsibility for the growing number of frail elderly falls largely on women rather than men. With an increasing number of women working outside the family home, the intersection of work and family issues is receiving considerable attention both in academic circles and in the popular media. Recently, for example, twenty-nine colleges and universities were identified as having workplace policies sensitive to employee family care responsibilities. Regrettably, such workplaces are the exceptions in American society. This article examines these significant elder law issues from a feminist perspective, particularly the feminist jurisprudence of care. Feminism has much to teach traditional American law and jurisprudence, including elder law. Feminist jurisprudential approaches have provided valuable critiques of traditional legal topics, including tort law, family law, corporate law, tax law, commercial law, labor law, and international law. This article applies similar feminist sensibilities and methodologies to elder law concerns. In general, American elder law is traditional in approach. Traditional or classical American jurisprudence, like elder law, promotes autonomy, personal responsibility, rationality, and individualism. On the other hand, feminism, especially the feminist “ethic of care” associated with the work of Carol Gilligan, rejects these traditional concepts in favor of solidarity, empathy, and community responsibility. This article argues that the feminist ethic of care should displace the traditional American approach to elder law

Justice Brennan\u27s Gender Jurisprudence

During his thirty-four year tenure on the Supreme Court, Justice William Joseph Brennan, Jr. demonstrated unparalleled sensitivity to the protection of individual rights. Justice Brennan\u27s landmark opinions included Baker v. Carr, Goldberg v. Kelly, and New York Times Co. v. Sullivan. before Brennan, Supreme Court jurisprudence exalted judicial passivity by employing techniques for avoiding constitutional issues, such as abstention, comity, exhaustion of remedies and the political question doctrine. Against this background, Brennan became an active judicial voice in a series of innovative landmark cases, including decisions requiring federal officials to pay damages for violation of citizens\u27 constitutional rights; authorizing federal courts to issue injunctions forbidding state court prosecutions under laws violating the First Amendment; and permitting congressional employees to sue members of Congress for discriminatory treatment. However, less attention has been focused on Justice Brennan\u27s dramatic impact on the Supreme Court\u27s gender jurisprudence. More than any other member of the Court, Justice Brennan recognized the complexity and pervasiveness of sex discrimination and its costs to society as a whole. Brennan\u27s opinions recognized that sex differentiation is largely cultural in origin, rather than based on real gender differences. As a result, Justice Brennan created a truly independent gender jurisprudence, eventually emerging as the architect of the Supreme Court\u27s contemporary test for evaluating claims of sex-based discrimination

A Tale of Two Religions: A Contractual Approach to Religion as a Factor in Child Custody and Visitation Disputes

This article focuses on the role of religious conflict between parents in determining child custody and visitation disputes. It suggests a framework for reconciling parental control over religious observance and training with the state\u27s duty to protect the child\u27s best interests. First, it examines the history of English and American child custody law and analyzes modern custody cases in which religion is a factor. Next, it addresses the alarming recent attempt by courts to resolve religious disputes with a shared custody approach, awarding \u27spiritual custody\u27 to one parent and \u27physical custody\u27 to the other. Finally, this article proposes a contractual approach to the question of religion in parental child custody and visitation disputes. Since religion is a legitimate issue to be considered in fashioning child custody decisions, courts should be required to consider the religious needs of the child, as a component of the child\u27s educational and psychological well-being. However, constitutional issues need not be reached. Indeed, it is likely that courts can avoid most troublesome constitutional issues by enforcing the express and implied contracts created by the parties before their divorce. Ultimately, the approach suggested here most effectively protects the actual religious needs of parents and children by enforcing the express and implied contracts created in the intact, pre-divorce family