Although the first circuit court to consider such actions allowed them to proceed, a small but growing number of circuit courts are rejecting the suggestion that corporations may be liable under the Act, noting that the statute uses the word “individual” instead of “person” when describing the liable actor. Because several appellate courts continue to reject other statutory bases for such actions against human rights abusers, corporations are confronted with virtually no economic incentive to refrain from engaging in such practices. As such, Congress’s purposes for adopting the TVPA are thwarted by the limitations that some appellate courts find in the language of the Act. With the Supreme Court poised to consider the question of corporate liability under the TVPA during the current term, the fate of the sole tort remedy available for many victims of torture hangs in the balance.

The Note argues that while the language of the TVPA is ambiguous and open to multiple interpretations, strong policy interests weigh in favor of allowing torture survivors to pursue a civil action against corporations for human rights abuses under the statute. After considering these policy interests, the history and language of the Act, and the accompanying legislative history, the Note calls on the Supreme Court to recognize that corporations should be held liable for torture under the TVPA.

- Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 130 S. Ct. 2592, 2601–02 (2010).

Justice Scalia’s statement in the Stop the Beach case, made as a basis for recognizing a “judicial taking” doctrine in constitutional property law, may have overreaching jurisprudential consequences. These implications go beyond the allocation of powers among the different branches of government and the modern role of courts as rule makers, especially in common law doctrines. This opinion also bears significantly on what one may term the “judicial review of judicial lawmaking.”

While this term may initially seem odd, it represents a crucial dilemma about the role that the U.S. Supreme Court should play in reviewing certain types of state-court actions. Assume that a state court of last resort alters the state adverse possession doctrine, by eliminating the requirement that the possession has to be “continuous for the statutory period,” an element that had been set up in its previous case law, in a manner that systematically impacts the rights of landowners. When the U.S. Supreme Court reviews a subsequent judicial taking case, should it simply step in for the state court in finding “what the law is,” and, in appropriate cases, say that the state court was wrong, as is the case with conventional appeals within the judicial branch? Or should the Court engage in the “classic” type of judicial review that often defers to the policy maker, as if it were examining a legislative or administrative provision? If we recognize the state judiciary as lawmaker, should it indeed receive no special treatment by the Court?

The purpose of the Article is not to engage in tautological exercises or to merely demonstrate incoherence in the Stop the Beach case. Rather, it seeks to identify some major, yet probably unintended, implications that result from the conceptualization of the judiciary as both lawmaker and “state actor” in a constitutional regime. In so doing, the Article offers an innovative theoretical approach, providing guidance to key dilemmas that have been left largely unresolved since the landmark Shelley v. Kraemer decision.

One common form of justification that is offered to answer these and a myriad of other reproductive policy questions is concern for the best interests of the children that will result, absent state intervention, from these forms of reproduction. This focus on the Best Interests of the Resulting Child (BIRC) is, on the surface, quite understandable and stems from a transposition of a central organizing principle of family law justifying state intervention—the protection of the best interests of existing children—visible in areas such as adoption, child custody, and child removal. The Article demonstrates that while parallel reasoning is frequently offered (by legislatures, by courts, by commentators, by physicians) to justify state interventions that seek to influence whether, when, and with whom individuals reproduce, such justifications are problematic and misleading. The Article’s aim is nothing short of re-writing our way of thinking about the regulation of reproduction.

Drawing on insights from bioethics and the philosophy of identity, the Article shows why the BIRC justification, at least stated as such, is problematic both as a normative and constitutional matter: unless the State’s failure to intervene would foist upon the child a “life not worth living,” any attempt to alter whether, when, or with whom an individual reproduces cannot be justified on the basis that harm will come to the resulting child, since but for that intervention the child would not exist. Nevertheless, the Article shows that BIRC arguments are frequently relied upon by courts, legislatures, and scholars to justify these interventions. At a doctrinal level the Article also shows that this reliance on BIRC justifications is in tension with the implicit rejection of similar reasoning by courts unwilling to recognize wrongful life torts.

After demonstrating why the BIRC argument is unworkable as stated, the Article considers three possible reformulations of the argument that would save it, including one that focuses on population welfare. It explains why none of these approaches is persuasive, including by discussing their disturbing implications as to enhancement and eugenics. The Article also briefly discusses how this analysis bears on the constitutionality of these interventions.

The Article asserts that BIRC justifications and its reformulations are shown to be problematic, it becomes apparent that either these forms of reproductive regulation are unjustified or quite different sorts of justifications must be relied on. The author briefly plots three such theories, each of which depends on more controversial ideas that the label of “best interests” obfuscates. These theories are examined in-depth in a companion article, Beyond Best Interests, which appears in a forthcoming Issue of this Journal.

In some circumstances, however, courts have applied a common law concept called successor liability to hold the purchaser liable for the obligations of the seller. These decisions fundamentally seek to balance two competing and often conflicting policy goals: to provide a necessary remedy to injured parties, often tort claimants, and to provide transactional clarity and certainty for business parties engaged in fundamental corporate transactions.

As it has developed to date, however, successor liability law is so varied and unpredictable that it is not only a trap for the unwary, it is a trap for the very wary as well. Transactional asset-acquisition planning today faces the worst of all possible worlds; uncertainty as to whether successor liability applies, together with an enormous range of potentially applicable monetary liabilities that may be visited on an asset-purchasing entity after the transaction is completed. Potentially deserving claimants are forced to litigate to see if they can convince a court to apply some variation of successor liability theory. Courts effectively are asked to, and sometimes do, rewrite the business deal after the fact and impose a liability allocation regime that the transacting parties would never have negotiated in the first place. Indeed, under the very uncertain current state of the law of successor liability, the potential liability of the purchaser is not limited by the value of what it obtained from the selling company or even the overall value of the seller’s total business. Rather, the purchaser’s total business is at risk.

The Article proposes a simple and efficient statutory solution to the problem of successor liability, providing a remedy to injured claimants while identifying for the business parties certainty as to apportionment of potential liabilities. The solution is to be implemented as a federal statute. The time is ripe to provide clarity and uniformity to guide the actions of parties to potential business transactions as well as those who would seek to pursue remedial claims against them.