Recently, epidemiology has become a familiar form of proof in mass torts litigation, and those who are considered epidemiologists are often sought as expert witnesses in these cases.  However, the necessary evidentiary requirement of epidemiology studies occasionally does not coincide well with the basic principles of causation in tort law.  For example, even when presented with overwhelming epidemiological evidence, juries have sometimes returned a verdict for plaintiffs, which indicates that some juries are not convinced by epidemiological evidence.

There are two imperative questions here: (1) how does epidemiology affect mass tort litigation; and (2) what relative weight should the courts give to epidemiological evidence?  These questions are particularly significant in the area of causation. In order to establish causation, the plaintiff must demonstrate that it is “more probable than not” that the harm being complained of would not have occurred had the defendant followed the appropriate standard of care.  From prior case law, courts have derived rules for causation, namely the “but for” test and the “substantial factor test.”  Under the first test, the defendant’s conduct is deemed to be a cause of the harm “if the [harm] would not have occurred but for that conduct.”  However, under the second test, the defendant’s conduct is a cause of the harm if that conduct was a substantial factor in producing the harm.

The plaintiff bears the burden of proving causation, which is generally an issue of fact.  The plaintiff must introduce support indicating a reasonable basis for the conclusion that the defendant’s conduct was “more likely than not . . . a cause in fact” of the outcome.  However, courts do not require the plaintiff to establish the case beyond a reasonable doubt.  The plaintiff need not entirely negate the possibility that something other than the defendant’s conduct caused the harm.  It is sufficient for the plaintiff to introduce evidence from which a reasonable person may conclude that it is more probable than not that the defendant caused the event.  The preceding standard is generally known as the preponderance of the evidence standard, which means that it must be greater than fifty percent.  Unlike traditional tort law, which follows the preponderance of the evidence standard, epidemiology relies on statistical significance and is not necessarily based on the greater half of the evidence.  In public health litigation, for example, statistical evidence based on aggregate data is sometimes introduced to show that the defendants created a statistically significant increase in the likelihood that the harm would occur.

The distinctions between the standards of proof employed in epidemiology and in law inform the central thesis of this paper.  This analysis began by describing the role of epidemiology in mass torts and public health litigation.  It later argues that because mass torts cover such a wide area, there are several problems related to epidemiology in litigation, particularly scientific uncertainty and inconsistent factual claims.

Part II discusses recent cases where epidemiological evidence was raised and debated, distinguishing between vaccine-related and non-vaccine-related cases.  Courts have differentiated vaccine-related cases from non-vaccine-related cases, principally because Congress enacted a vaccine act designed to compensate victims.  In both vaccine and non-vaccine related cases, the legal concepts of specific and general causation are extensively used.

Part III examines the two legal concepts of general and specific causation in epidemiology and how courts have tried to balance the epidemiological causation standard with general torts principles.  Part IV analyzes how epidemiological evidence differs from other evidence in terms of the tensions it raises for the legal system, and argues that despite these tensions, courts still hold that causation must be shown by epidemiological evidence.  Part V discusses the policy implications of what gets used in court and argues that reliance on human studies, as the best evidence, may be misplaced since one cannot freely experiment on human beings.  This section also considers whether epidemiologists should get involved in policy issues, discussing two divergent schools of thought.

The paper concludes by suggesting that although the presence of epidemiological evidence does not necessarily end the inquiry; where the evidence is available, it should be used only if the evidence meets a heightened standard.  The heightened standard argued for in this paper is a screening standard for admission that considers not only a doubling of the risk by the exposure, but also jury instructions that clearly inform the jury of the strengths and weaknesses of epidemiological studies.  The paper also calls for the American College of Epidemiology and the Council for State and Territorial Epidemiologists (“CSTE”) to develop model guidelines for the use of epidemiological evidence in the courtroom.  These guidelines could mirror the public health law bench books developed 31for some states to refer to during public health emergencies.

23 St. Thomas L. Rev. 157

Previous scholarship has analyzed whether a new corporate form is necessary to support a stakeholder interest maximization model, and scholars are divided as to whether a new form is needed to adequately protectstakeholder interests and to limit director liability for pursuing stakeholder interests ahead of profit maximization. This Article seeks to add to the literature by examining scenarios in which a separate B Corporation corporate form would provide a solution to the problems detailed above and by proposing that the American Bar Association (ABA) enact a Beneficial Corporation provision in its Model Business Corporation Act (MBCA) to address specifically this issue. The MBCA has been adopted in whole or in substantial part by over thirty states, and amending it to reflect a new B Corporation form would promote wide acceptance in many states’ corporate laws. Because for-profit corporation fiduciary duties require directors to further the interest of shareholders – that is, maximizing corporate profits – new provisions need to be adopted by the MBCA that will provide a corporate form that will allow directors to maximize stakeholder interests before shareholder profits.

23 St. Thomas L. Rev. 135

When the Council was established in 2006, the United States did not stand for election to one of the body’s 47 seats.  It instead opted for permanent observer status, which entitles a state to participate in all sessions.  In 2008, the United States withdrew its mission, disenchanted by the tone and progress of Council proceedings.  Despite widespread hope that the Obama administration will revitalize America’s relationship with the U.N., the 2008 withdrawal is no aberration.  It remains a pivotal action in United States policy towards the U.N., as Bush era policies have not been altogether abandoned.

In this article, an analysis of events leading up to the 2008 withdrawal will shed light not only upon America’s likely positions in the years to come, but, more importantly, on the overall performance of the Council since its creation.  Two broad factors are relevant to the United States withdrawal.  First, I shall examine America’s historical stance towards the Council, tracing its positions before, during, and after the General Assembly vote on the Council’s establishment.  Second, I shall turn to the Council’s scrutiny of human rights in the United States and the American response.

Although recent United States policy has done much to inflame international relations, I shall argue that the Council’s “Special Procedures” mandate holders9 drew excessive attention to the United States, often to the neglect of far more serious human rights situations elsewhere in the world. After examining those two factors, I shall conclude with preliminary prognoses of America’s new membership under the Obama administration.

23 St. Thomas L. Rev. 89

The Supreme Court has yet to be confronted with such a case, and the lower courts seem divided as to the reach of school authority to restrict such speech.  The disagreement is based upon the tension between the value in protecting the robust exchange of ideas in the school environment, the need to maintain “an environment conducive to learning,” and a very natural concern for school discipline and safety.  This is especially true in light of several well-publicized and tragic school shootings and the growing problem of cyber-bullying.

The Supreme Court has repeatedly acknowledged these competing concerns, beginning in 1969 with its decision in the seminal case of Tinker v. Des Moines Independent School District.  There, the Court upheld the right of students to engage in a silent, passive protest, as long as it did not cause a material or substantial disruption to school activities.  The Court explained that “[n]either students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Since Tinker, the Court has recognized several categorical exceptions to the protection of student speech.  Under these exceptions, school administrators may restrict student speech that occurs on campus when it materially and substantially interferes with school order and discipline; is lewd, indecent, or offensive; is sponsored by the school itself; or could be reasonably interpreted as promoting the use of illegal drugs.  The most recent Supreme Court opinion in this line of cases, Morse v. Frederick, explicitly acknowledged the Court’s categorical approach, and lends support to the recognition of additional exceptions.

This article will explain the need for one such exception, that of threatening speech even if it falls short of the requirements for prosecution as a true threat.  Section I will explain the Supreme Court’s jurisprudence in the area of student speech.  Section II will explain why threatening expression has no place in the school environment even where the expression could not be criminally sanctioned, and is particularly problematic in light of recent school shootings and the growing problem of cyber-bullying.  Section III will explain why schools must be permitted to discipline students who direct off-campus threatening expression toward the school or who could reasonably foresee that the expression would come to the attention of school authorities, why existing law is insufficient to offer clear guidance to students or school administrators, and why Morse permits the categorical exclusion of this type of speech from First Amendment protection.

23 St. Thomas L. Rev. 50

Legal commentators writing in the diverse fields of law and literature, tax policy, and empirical legal studies have taken a renewed interest in legal fictions, including Fuller’s influential work from the 1930s. They have applied the label “legal fiction” to an eclectic group of legal rules, including slavery, the doctrine of discovery, the tax code, and empirically erroneous legal presumptions (i.e., discredited legal regimes, complex statutory schemes, and empirical legal errors). These newly identified legal fictions do not satisfy Fuller’s classic definition of a legal fiction because they are neither acknowledged to be false nor demonstrably false. The enduring conundrum presented by the classic legal fiction is that it retains its utility despite its falsity, similar to false statements used in science and mathematics in order to advance a proof or hypothesis.

Any discussion of fiction necessarily invokes a concept of reality against which the fiction can be measured. Thus, before we can speak intelligibly of fictions, we must first be able to identify truth. Does it make any sense to refer to slavery as a fiction when it was, in fact, a legal system that brutalized millions? Is the choice of a tax base “false” simply because it is statutorily prescribed? Certain legal rules, such as those governing eye witness testimony, explicitly incorporate statements of fact that are readily verifiable by reference to real world events. Slavery and the doctrine of discovery encompass abstract concepts, such as liberty, autonomy and sovereignty that are not provable in any conventional sense of the term. They stand as juristic truths independent from questions of empirical proof.

Fuller cautioned that a legal fiction becomes dangerous when it is believed for then the fiction can approximate a lie, but there is also danger when the force of its constitutive power is ignored. When this occurs, the label of fiction works a denial and removes from memory important lessons regarding the law and the fragility of the human experience.

23 St. Thomas L. Rev. 1