Issue 5

The Chicken and the Egg: Kenneth S. Abraham’s “The Liability Century”

Books about the tort system tend to be polemics relentlessly drained of nuance. Either the tort system is awful—an unmitigated hindrance to the national economy and progress—or the tort system is the only thing standing between the welfare of the American public and the abyss: its principal flaw is that there is not more of it. The Liability Century is, by contrast, a largely anthropological exercise. Peering over the ridge separating the old century from the new, Professor Abraham examines what might be labeled “The Ages of American Liability Law.” Through these ages, he elucidates the appealing metaphor with which he opens his study:

Astronomers have discovered a solar formation they call a “binary star.” This formation consists of two suns, each in orbit around the other. Their center of gravity lies at a point in between them, and they revolve around that center of gravity. Neither star could remain where it is, or as it is, without the other. They are two separate bodies, but each is dependent on the other for its place in the universe.

In this Essay, I provide an overview of Abraham’s major themes, comment on their persuasiveness, and offer some direction to other sources readers might wish to consider. 

How Automobile Accidents Stalled the Development of Interspousal Liability

This Note analyzes the development of interspousal tort liability for personal harms following the enactment of the married women’s property acts. The case law is broken down into three periods (1) the 1860s through 1913, when all courts hearing interspousal torts barred them; (2) 1914 through 1920, when a trend permitting the claims developed; and (3) 1921 through 1940, a period in which the seemingly inevitable evolution toward allowing the suits stalled. The existing literature characterizes the law as illustrating a continuing judicial desire to impose patriarchal restrictions on women’s rights and blames the third-period reversal on the stagnation of the women’s movement following ratification of the Nineteenth Amendment. In contrast, this Note removes the case law from the realms of conventional feminist analysis and women’s history. The women’s movement had no direct influence over judicial construction of the married women’s acts, and the alleged post-suffrage stagnation is itself questionable. Instead, this Note suggests that the trend allowing interspousal torts was complicated by the emergence of a new fact pattern: negligent automobile accidents. Following decades of willful tort suits, automobile negligence suits brought the risk of insurance fraud and collusion, which consequently halted judicial willingness to allow them. Because willful and negligent torts were legally indistinguishable based on the text of the statutes, judicial refusal to allow negligent torts translated into a complete bar on interspousal liability.

Patent Claim Construction

In 1998, the Federal Circuit decided Cybor Corp. v. FAS Technologies, holding that patent claim construction was a purely legal issue subject to de novo appellate review. This highly controversial decision has since become the focus of intense scrutiny and empirical studies exposing the problematic nature of de novo review. In November 2006, the Federal Circuit issued a divided opinion indicating its most significant movement towards reconsidering Cybor, prompting some observers to forecast the impending demise of de novo review.

This Note introduces Chevron deference as the proper standard of review for patent claim construction. A default rule adopting the narrowest reasonable claim interpretation would serve as a valuable information-forcing adjunct. Together, these rules would simultaneously address the inefficiency, indeterminacy, and information costs that currently plague the patent system. Ultimately, this proposal would achieve sweeping, multi-institutional patent reform from both ex ante and ex post perspectives.

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