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.

Cities, Economic Development, and the Free Trade Constitution

The role of cities and local government generally has gone unexamined by legal scholars of the constitutional common market. Yet in a highly urbanized country in which cities and large metropolitan areas dominate the national economy, much of the cross-border movement of persons, goods, and capital inside the United States is more accurately characterized as inter-municipal rather than inter-state. This Article examines the constitutional rules that govern this cross-border movement from the perspective of the city. The Article argues that judges and commentators have misapprehended the jurisprudence of the American common market because they have been looking at its operation on the wrong scale. Examining how the doctrine operates at the municipal level exposes the gaps and contradictions in the jurisprudence, reveals connections between legal doctrines that heretofore had not been considered part of the free trade regime, and highlights the Supreme Court’s implicit (and under-theorized) urban economic policy. The reframing of the economic and jurisprudential place of cities in the free trade constitution sheds light on a number of important recent cases, in particular Kelo v. New London, in which the Court upheld a city’s use of eminent domain for economic development purposes under the Fifth Amendment’s Takings Clause. The Article’s city-centric approach also intervenes in a number of judicial and scholarly debates, including the appropriate reach and application of the “dormant” commerce clause, the appropriate judicial oversight of local land use regulations under the Takings Clause, and the role of courts in policing and shaping local economic development efforts more generally.