The “Vanishing Trial”: Arbitrating Wrongful Death

The Hon. Victoria A.B. Willis *

Judson R. Peverall **

Within the past four decades, private arbitration has spread apace across the American legal landscape. The “mass production” of arbitration clauses has pervaded modern business life, relegating a multitude of legal doctrines from the public courthouse into the private realm. The results have been both acute and invidious. Modern judicial preferences for arbitration have given way to enforcement in areas of the formerly unenforceable. Courts are now compelling new classes of claims, previously thought to be beyond the pale of any arbitration agreement.

The latest target in this expedition is the wrongful death action, with courts now shifting wrongful death litigants into private arbitration when they never agreed to arbitrate their disputes in the first place. The recent paradigm shift into wrongful death arbitration raises a complex blend of conceptual, practical, normative, and doctrinal problems. Under modern judicial preferences for arbitration, the problems that inhere within wrongful death arbitration have remained largely hidden. In this article, we expose these problems and develop a more nuanced and coherent rule of analysis that comprehends the history and purpose behind these two legal doctrines: wrongful death liability and arbitration.

First, we show that courts compelling arbitration in this area distort the very rights wrongful death liability historically sought to defend—including the property rights of family members who depended upon the decedent for economic support. Next, we explain that, by denying family members access to public tribunals and punitive damage awards, courts compelling wrongful death arbitration erode the basic deterrence function of wrongful death liability. In reaching our conclusion, we urge a bright-line rule that rejects wrongful death arbitration as fundamentally inconsistent with the historical intent and purpose behind both wrongful death liability and arbitration.

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*  Circuit Court Judge, Fifteenth Judicial Circuit of Virginia. J.D., University of Richmond School of Law; B.A., Vanderbilt University.

** Law Clerk, Fifteenth Judicial Circuit of Virginia. J.D., University of Richmond School of Law; A.B., College of William and Mary. We are indebted to the University of Richmond Law Review for their excellent comments and edits on this article, and Professor W. Hamilton Bryson, the Hon. Charles Sharp, the Hon. Michael Levy, Edward Englestad, Kevin Brosnan, Donita Peverall, and Vikki Wharton for their support and advice before and during the publishing process.

Transitional Equality

Suzanne A. Kim *

Legal discussions of inequality often focus on the virtues of one legal status or regulatory structure over another, but a guarantee of the right to a particular legal status does not ensure a lived experience of equality in that status. In moments of legal change, when a person or class of persons obtain a new status or gain rights that had previously been denied to them, the path from one legal status to another becomes critically important and may itself be impacted by race, gender, age, and other factors. The process of transitioning to a new status can be complex and burdensome in unexpected ways, and lack of attention to that process can impair persons’ inhabitation of their newly acquired legal rights.

This article examines the underexplored issue of inequality in the process of shifting legal relational status and posits a new framework of “Transitional Equality” to address vulnerabilities that may arise during the process of transition itself. Focusing on the constitutional law of intimacy, this article discusses the specific case study of tens of thousands of same-sex couples who have transitioned from the legal status of unmarried to married after the Supreme Court’s 2015 decision on marriage equality in Obergefell v. Hodges. Same-sex couples face substantially different process burdens than different-sex couples when moving from from unmarried to married, and for some couples the burdens may be exacerbated by racism, poverty, and other structural obstacles. Achieving the promise of equality requires attention to such factors and their impact on the lived experience of becoming married.

Transitional Equality is a framework for identifying obstacles to full enjoyment of new legal rights and building resilience in the process of moving from one legal relational status to another. This article situates this new framework in reference to critical legal theory, constitutional doctrine, legal policy, and areas for future policy innovation and sociolegal research.

We are in the midst of a robust public discussion of various forms of inequality, including in regard to gender and sexuality, economic opportunity, health, criminal justice, immigration, education, and other areas. Transitional Equality provides a framework for identifying obstacles and solutions on the path to achieving equal rights that have been promised under law.

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*   Professor of Law and Judge Denny Chin Scholar, Rutgers Law School. For generous engagement on the ideas contained here, I thank Jamie Abrams, Kerry Abrams, Carlos Ball, Arianne Renan Barzilay, Noa Ben-Asher, Alexander Boni-Saenz, Naomi Cahn, June Carbone, Colleen Chien, Bridget Crawford, Deborah Dinner, Jessica Dixon Weaver, Max Eichner, Martha Fineman, Suzanne Goldberg, Julie Goldscheid, Meredith Johnson Harbach, Andy Hayward, Christina Ho, Kevin Maillard, Solangel Maldonado, Maya Manian, Kaipo Matsumura, Jessica Miles, Melissa Murray, Kim Mutcherson, Douglas NeJaime, Chrystin Ondersma, Margo Pollans, Darren Rosenblum, Andrew Rossner, Clare Ryan, Fergus Ryan, Sabrina Safrin, the faculty of Pace University Law School, the Columbia Law School Center for Gender and Sexuality Law, the International Society of Family Law, the Vulnerability and the Human Condition Initiative at Emory Law School, and the University of Lund. I thank Taylor Craney, Christina La Bruno, Heather McLinn, Michael Licciardi, Alexandria Silva, and Nicole Virella for invaluable research assistance. I thank Rutgers Law School and the Shuchman Fund for Empirical Research for valuable support


Eliminating Liability for Lack of Informed Consent to Medical Treatment

Valerie Gutmann Koch *

The legal doctrine of informed consent, which imposes tort liability for failure to disclose the risks, benefits, and alternatives of a proposed medical intervention, is often criticized for emphasizing ritual over relationships, contributing to the deterioration of the doctor-patient relationship by encouraging the practice of defensive medicine. This article considers a rather radical response to the allegations that the tort of lack of informed consent does not serve the lofty goal of protecting patient self-determination by ensuring that treatment decisions are voluntary and informed, namely the elimination of liability for failure to provide informed consent to medical treatment. In doing so, this article evaluates the rationale and procedure for abolishing a common law private right of action for lack of informed consent, as well as potential alternatives to tort liability for failure of informed consent to medical treatment. The article concludes that the time has not come for a wholesale elimination of the private right of action for lack of informed consent to treatment. Abolishing liability for lack of informed consent in treatment would not only eliminate the deterrent effect for potential bad actors, but would also remove recourse for those who have suffered harm due to a failure of informed consent.

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      * Director of Law & Ethics, MacLean Center for Clinical Medical Ethics at the University of Chicago; Visiting Fellow at DePaul University College of Law; Chair of the American Bar Association’s Special Committee on Bioethics & the Law. J.D., Harvard Law School; A.B., Princeton University.

I would like to offer particular gratitude to Ting Liu, who provided extensive research support for this project. In addition, thank you to Professor Michael Waitzkin, who enabled this project to come to fruition through the Duke Institute for Science & Society summer practicum; Elizabeth Yang, Deputy Director of the Division for Public Services; and the American Bar Association, for coordinating this effort with the ABA Special Committee on Bioethics & the Law. Valuable discussion of this article was provided by Wendy Netter Epstein and Nadia Sawicki.

When the Problem Is the Solution: Evaluating the Intersection Between the U Visa “Helpfulness” Requirement and No-Drop Prosecution Policies

Diane Mickelson *

When Congress introduced the U visa in 2000, it intended to create a program that not only protected immigrant victims of domestic violence from deportation, but also strengthened law enforcement’s ability to investigate crimes and encouraged victims to report the abuse. Traditionally, immigrant victims are particularly vulnerable to domestic violence and have been provided with few options to leave the relationship without risking their immigration status. However, while the U visa provides immigration protections to broad categories of victims, it contains a unique “helpfulness” requirement that compels victims to continually cooperate with law enforcement in order to receive the necessary certification. This requirement alone is not contradictory to the goals of the U visa, but particular problems arise in jurisdictions with no-drop prosecution policies. No-drop prosecution policies remove the ability of victims to request that their cases be dropped and the discretion of prosecutors to drop cases unless there is a clear lack of evidence. In these jurisdictions, if immigrant victims cease cooperation, they lose their eligibility to receive a U visa. However, where sufficient evidence exists, the case will continue to be tried and could result in the victim’s deportation along with her abuser. Therefore, to further the goals of the U visa, I recommend adopting the evidence-based standard of no-drop prosecution policies for the certification requirement in place of the current cooperation-based standard.

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   *      J.D. Candidate 2020, University of Richmond School of Law; B.S., 2013, Furman University. I would like to thank Professor Margaret Ivey for her invaluable guidance and support throughout the writing process. I would also like to thank the University of Richmond Law Review staff and editors for helping prepare this article for publication. Lastly, I would like to thank my family for their input and support

Access Before Evidence and the Price of the FDA’s New Drug Authorities

Erika Lietzan *

Sometimes drug innovation seems to happen in reverse. Patients enjoy a treatment for years even though the treatment has not been approved by the FDA or proven safe and effective to the FDA’s standards. (Sometimes this happens because the FDA has declined to take enforcement action.) The agency encourages companies to perform the work necessary to satisfy the United States “gold standard” for new drug approval, however, by promising exclusivity in the marketplace. When a company does this work, at considerable expense, the results are predictable. The new drug is expensive, and patients and payers (and sometimes policymakers) are outraged. To them, it seems like nothing more than a sudden and significant price increase in a drug that was already widely available. 

This reverse sequence happens regularly. Doctors all over the country prescribe medicines for a variety of ailments, not realizing the medicines are supposed to be approved by the FDA—but have not been. Every time a company finally does the research that the FDA requires and enjoys the reward of exclusivity in the marketplace, the public cries foul. Today doctors administer fecal microbiota therapy, using an unapproved stool preparation that has been shipped by a company in Massachusetts. But companies are studying new drugs based on the principle. A recent New York Times article described the looming controversy, quoting doctors and patients who seem to question whether the new drug approval process will be worth its cost.

These scenarios force us to confront basic questions about the cost and the benefit of the new drug framework. This article examines the new drug authorities with fresh eyes, with the added benefit of these unusual scenarios where in a sense the gatekeeping mechanism has failed. Its principal insights are that, in addition to ensuring the production of high quality evidence about treatments in the marketplace, the new drug authorities: (1) ensure the disclosure—and provide a mechanism for close regulation of the disclosure—of that information, and (2) give federal regulators a leash on new drugs, and the companies who market them, through the life cycle of those drugs. It explores the costs of error and delay associated with new drug approval and alternatives that some scholars and policymakers have proposed, ultimately arguing that—though aspects may need tweaking—the new drug approval paradigm is worthwhile.

But these access-before-evidence scenarios bring home the point that the new drug approval standard does not, itself, ensure high quality innovation is performed. Something else must provide the encouragement. It concludes that those who object to temporary exclusivity for new medicines that complete the approval process (and the high prices they make possible for a while) must ask themselves whether they value the new drug framework (including good evidence) as much as they thought.

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        *    Associate Professor of Law, University of Missouri School of Law. In June 2015, Diane Hoffmann and coinvestigators from the University of Maryland Baltimore received a grant from the National Institute for Allergy and Infectious Diseases to study legal and regulatory aspects of microbiota transplantation. The author served on an expert working group convened to advise the investigators from December 2015 through February 2018. This project was supported by the Joe Covington Faculty Research Fellowship and the William F. Sutter Faculty Research Fellowship Fund. The author is grateful for feedback from audience members at the sixth annual fall conference of Scalia Law School’s Center for the Protection of Intellectual Property (IP for the Next Generation of Technology, in October 2018) and for the opportunity to discuss this project at a symposium hosted by Mizzou Law’s Center for Intellectual Property & Entrepreneurship (Protecting the Public While Fostering Innovation and Entrepreneurship: First Principles for Optimal Regulation in February 2019). Krista Carver, Joseph Gabriel, Brook Gotberg, Thomas Lambert, and Patricia Zettler provided helpful comments. Henry Adams (University of Missouri School of Law Class of 2020) and Alec Larsen (Class of 2019) provided research assistance.


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