Article

Foreword

On August 11 and 12, 2017, Charlottesville, Virginia—the home of the University of Virginia and this journal—played unwitting host to two days of white nationalist and neo-Nazi rallies and violence. For those of us in Charlottesville, those events were intensely personal and local. The white nationalists and neo-Nazis violated our physical space. They maimed and killed members of our community. They threatened the security and sense of belonging of our neighbors, colleagues, students, and friends. And they challenged the values of equality and tolerance we hold dear.

From the moment the events unfolded, it was clear that they resonated beyond Charlottesville itself. Such blatant forms of white supremacy came as a surprise to many. They preoccupied observers far flung from Charlottesville both for the violence and loss of life on display and for the stark evidence they provided of deep and enduring fault lines within our nation and our society. The intolerance and hate the white nationalists and neo-Nazis exhibited most directly and explicitly targeted Jews and African Americans, but their reach was far broader. Their intent to make vulnerable all those who do not conform to their image was potent and palpable. Moreover, the incident implicated numerous questions for the law, for politics, and for society itself. The discussions that followed engaged questions not only of race, religion, ethnicity, and nationality, but also of gender and sexuality, pluralism and tolerance, politics and civic engagement, social justice and economic opportunity, speech and violence, civility and protest and counter-protest, and more.

This symposium focuses on the racial implications and reverberations of August 11-12. The conference that produced these articles brought an annual national meeting of empirical critical race theorists to Charlottesville to train their considerable intellectual talents on the first anniversary of August 11-12. The resulting scholarship asks what we can learn from August 11-12 about the legal underpinnings of white supremacy in the United States, from the beginning of its history to the violence in 2017 and beyond. It investigates the surprise with which so many responded to August 11-12 and shows us why we should not be surprised.

Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era

Over a century ago, industrialization and its accompanying increase in workplace injuries were placing substantial pressures on the tort system and its ability to compensate the victims of these injuries. Eventually, the interests of labor and management came together, giving rise to a new administrative compensation system. Unlike tort remedies, this new scheme imposed strict financial responsibility on employers for work-related injuries to their employees. This system of workers’ compensation is still the most far-reaching tort reform ever adopted—promoting safety and compensating for injuries more effectively than tort did both at the time and today. Workers’ compensation has its flaws, but there is no significant desire on anyone’s part to go back to tort.

We are on the verge of another new era, requiring yet another revision to the legal regime. This time, it is our system of transportation that will be revolutionized. Over time, manually driven cars are going to be replaced by automated vehicles. The new era of automated vehicles will eventually require a legal regime that properly fits the radically new world of auto accidents. The new regime should promote safety and provide compensation both more sensibly and more effectively than what could be done under existing tort doctrines governing driver liability for negligence and manufacturer liability for product defects. Like labor and management a century ago, auto manufacturers, consumers, and the public at large—often currently at odds about the tort system—will need to have their interests come together if the new era of automated transportation is to be governed by an adequate legal regime.

Any new approach will have to deal with the long and uneven transition to automated technology, impose substantial but appropriate financial responsibility for accidents on the manufacturers of highly automated vehicles, and provide satisfactory compensation to the victims of auto accidents in the new era. This Article develops and details our proposal for an approach that would accomplish these goals.

Abstention at the Border

The lower federal courts have been invoking “international comity abstention” to solve a range of problems in cross-border cases, using a wide array of tests that vary not just across the circuits, but within them as well. That confusion will only grow, as both scholars and the Supreme Court have yet to clarify what exactly “international comity abstention” entails. Meanwhile, the breadth of “international comity abstention” stands in tension with the Supreme Court’s recent reemphasis on the federal judiciary’s obligation to exercise congressionally granted jurisdiction. Indeed, loose applications of “international comity abstention” risk undermining not only the expressed preferences of Congress, but the interests of the states as well.

This Article argues against “international comity abstention” both as a label and as a generic doctrine. As a label, it leads courts to conflate abstention with other comity doctrines that are not about abstention at all. And as a generic doctrine, it encourages judges to decline their jurisdiction too readily, in contrast to the presumption of jurisdictional obligation. In lieu of a single broad doctrine of “international comity abstention,” then, this Article urges federal judges to specify more narrow grounds for abstention in transnational cases—grounds that can be separately justified, candidly addressed, and analyzed through judicially manageable frameworks. For example, a primary basis for “international comity abstention” has been deference to parallel proceedings in foreign courts, a common problem that deserves its own dedicated analytical framework. A separate doctrine for deferring to integrated foreign remedial schemes may also be appropriate. Perhaps other limited bases for transnational abstention could be identified as well. The goal should not be a strict formalism that insists that judges’ hands are tied, but rather a channeling of judicial discretion so as to promote—rather than displace—interbranch dialogue about the proper role of comity in the courts.

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