Doctrinal Feedback and (Un)Reasonable Care

The law frequently derives its content from the practices of the community it regulates. Examples are legion: Tort’s reasonable care standard demands that we all exercise the prudence of an “ordinary” person. Ambiguous contracts find meaning in the custom and usage of trade. The Fourth Amendment examines our collective expectations of privacy. And so on. This recourse to real-world circumstance has intuitive appeal, in that it helps courts resolve fact-dependent disputes and lends legitimacy to their judgments.

Yet real-world practice can depart from that which the law expects. For example, suppose a physician provides more-than-reasonable care—extra tests, unneeded procedures, etc.—so as to steer clear of tort liability’s considerable gray area. If other physicians follow suit, their precautions slowly but surely become the new legal norm, as the reasonable care standard dutifully absorbs the conduct of those it governs. Instead of discouraging wasteful practices, the law feeds them back into doctrine, making overcompliance into mere compliance and ratcheting up the standard of care. Overcautious physicians then have to do even more to steer clear of liability, and the cycle begins anew.

This Article provides a general model of this “doctrinal feedback” phenomenon and then applies it to medical malpractice, where tort’s reasonable care standard has caused an unhealthy and unappreciated feedback effect and has led the law to require an unreasonable level of care. In doing so, it reveals feedback’s surprisingly common formative factors and demonstrates its potential to skew legal norms in a variety of otherwise dissimilar fields.

(Over)Valuing Uniformity

Providing for the uniform interpretation of federal law has long been viewed as a primary goal of the federal court system, and the claimed need for uniformity has shaped the structure of the courts and the scope of their jurisdiction. For example, uniformity has been cited as grounds for broad federal question jurisdiction and for the creation of specialized federal courts. Most visibly, harmonizing interpretation of federal law has become an essential factor in the Supreme Court’s selection of cases for review; 70% of the Supreme Court’s docket is devoted to resolving disagreements over the meaning of federal law. 

This Article questions whether uniformity in and of itself has inherent value, and whether the benefits of eliminating moderate disuniformity in the interpretation of ambiguous federal statutes are worth the costs. Proponents of uniformity claim that divergent interpretations of federal law are unfair to litigants, undermine the legitimacy of federal law, create intolerable conflicts for interstate actors, and lead to forum shopping. The Article explores each argument in turn and finds none to be a compelling reason for federal courts to devote considerable time and resources to maintaining uniformity. For instance, litigants have no basis to claim they were treated unfairly when courts reach different conclusions about the meaning of an ambiguous statute as long as each interpretation is reasonable. Nor is the legitimacy of federal law called into question when judges disagree about the best way to fill gaps or resolve vague provisions in the statutes they construe. Indeed, the doctrine of Chevron deference recognizes, and even promotes, the possibility that ambiguous federal statutes can be construed in a variety of ways. Interstate actors are already required to comply with the varied legal regimes of the fifty states, so adjusting their conduct to accommodate divergent interpretations of federal law is not significantly more disruptive. And if forum shopping is truly a problem (which is questionable), a better solution might be to tighten venue rules rather than expend significant federal judicial resources on standardizing federal law. 

Furthermore, even in the relatively rare cases when uniformity is essential, the federal courts are not the ideal institution to provide it. Congress is responsible for enacting ambiguous laws that produce conflicting judicial interpretations, and Congress is better situated to determine when the benefits of uniformity outweigh the costs of achieving it. Accordingly, this Article contends that courts should avoid expending resources to standardize federal law, and should instead rely on Congress to legislate uniformity when needed.

Prosecuting Batterers After Crawford

Professor Tom Lininger examines the impact of Crawford v. Washington on prosecutions of domestic violence. Prior to Crawford, these prosecutions relied heavily on hearsay, in part because accusers often recant or refuse to testify. Crawford has raised significant doubts about the admissibility of such evidence unless the government provides the accused with an opportunity for cross-examination. 

Professor Lininger surveyed 64 district attorneys’ offices in California, Oregon and Washington to determine the effect of Crawford on domestic violence cases. The counties involved in this survey make up approximately 90 percent of the population in the three states. Nearly two-thirds of the respondents indicated that the Crawford decision significantly impeded prosecutions of domestic violence in their jurisdictions. Moreover, 76 percent of respondents indicated that after Crawford, their offices are more likely to drop domestic violence charges when the accusers recant or refuse to cooperate.

The article suggests legislative reforms that would adapt the states’ evidence codes to the new constitutional requirements of Crawford in order to facilitate effective prosecutions of domestic violence. One category of proposals would maximize opportunities for pretrial cross-examination of accusers. Another set of proposals would expand certain statutory hearsay exceptions. Finally, the author suggests miscellaneous reforms that would better protect battered women before trial, would help juries to understand the psychology of recanting accusers, and would diversify the charges brought by prosecutors so that hearsay statements are not indispensable.