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Many employers today require that prospective or current employees submit to drug testing as a condition of employment.' Although public policy favors a drug-free workplace,2 drug testing of workers faces criticism because it may violate a worker's privacy,3 because it reflects drug use off the job that may not impair the worker's ability to do her job,4 and because the procedure may cause unnecessary emotional distress.5 In addition to these

In this Article, Professors Bowman and Mertz question recent popular and academic commentary that disputes the validity of all delayed-recall memories of childhood sexual abuse. They examine one court's decision to allow a father, accused by his daughter of childhood sexual abuse, to recover malpractice damages from his daughter's therapist in connection with therapy during which the daughter recovered memories of the abuse. The authors argue that such third-party liability is unsound in terms of established principles of tort doctrine and in terms of public policy. After a review of the scientific evidence, the authors further conclude that, although some memories may be inaccurate, delayed-recall memory can also accurately reflect that past abuse occurred. Permitting third-party liability against therapists when accurate memories of abuse surface in therapy gives abusers a weapon to use against their victims. Because such suits exclude the party in privity (the client), they effectively erase the victim's voice. Professors Bowman and Mertz argue that such a novel extension of third-party liability is at best a misuse of the courts' resources and ultimately harms abuse survivors, therapists, and the community far more than it helps any wrongfully accused parents. Language: en

* Norman & Edna Freehling Scholar and Professor of Law, Illinois Institute of Technology, Chicago-Kent College of Law. Some of the ideas developed in this paper were presented to the Contracts Section of the Association of American Law Schools as part of a panel on "The Relational Theory of Contract" held at the 1988 Annual Meeting in Miami Beach, Florida. Financial support for this project was provided by the Marshall D. Ewell Research Fund of the Chicago-Kent College of Law. Research assistance was provided by Craig Truitt. Finally, I wish to thank Jay Feinman for commenting on an earlier draft. I I introduced this thesis in Randy E. Barnett, Contract Scholarship and the Reemergence of Legal Philosophy, 97 Harv. L. Rev. 1223 (1984) (book review), and greatly expanded it in Randy E. Barnett, A Consent Theory of Contract, 86 Colum. L. Rev. 269 (1986) [hereinafter Barnett, Consent Theory]. A condensed and revised account of this approach appears in Randy E. Barnett, Rights and Remedies in a Consent Theory of Contract, in Liability and Responsibility: Essays in Law and Morals 135 (R.G. Frey & Christopher W. Morris eds., 1991). 2 Although these two expressions of the principle serve well for most purposes, they are not strictly accurate. A more complete formulation is that contractual obligation arises when a person "voluntarily performed acts that conveyed her intention to create a legally enforceable obligation by transferring alienable rights." Barnett, Consent Theory, supra note 1, at 300. This more elaborate version is needed to account for the restrictions that are properly placed on people's ability to legally bind themselves. This limitation is reflected in, for example, the rules governing the remedy of specific performance. See Randy E. Barnett, Contract Remedies and Inalienable Rights, 4 Soc. Phil. & Pol'y 179 (1986). Although I describe this as the "traditional" view, it represents a rejection of the modern Willistonian-Restatement approach that places the concept of promise (as opposed to consent) at the heart of contract. A promise may or may not be accompanied by an explicit or implicit manifestation of intention to be legally bound. See Randy E. Barnett, Some Problems with Contract as Promise, 77 Cornell L. Rev. 1022 (1992).

An assault on privity has swept through much of tort law in the United States, freeing plaintiffs to press charges of negligence against even those with whom they have never had contractual relations. With the exception of scattered pockets of resistance, this movement has revolutionized the field of legal malpractice. Following California's lead, many state courts no longer consider lack of privity a bar to a party who has suffered the effects of an attorney's malpractice.1 At the same time, these courts have almost universally resisted another policy that would also free more parties to press legal malpractice claims: allowing the clients of negligent attorneys to assign their claims to third parties.2 Here, too, California courts lead the way. Courts have lowered the privity bar in order to open new routes to the litigation of legal malpractice claims. In particular, courts have relaxed privity requirements in order to advance three

Federal administrative agencies play an important role in national policy,' directing most of the day-to-day activities of the federal government. The agencies pursue their separate tasks with a good deal of autonomy, and yet the lines dividing their spheres of activity are often unclear. When more than one agency pursues similar goals through adjudication, the result may be duplicative litigation. The doctrine of preclusion is the procedural device generally invoked to prevent such duplication. Preclusion can take two forms: issue preclusion, which prevents a party from relitigating issues it has already fully litigated, and claim preclusion, which prevents a party from relitigating a claim when it participated in a prior adjudication of these claims or when it was in privity with a party to that litigation. It is this latter form of preclusion that presents a special problem for government agencies. In a bureaucracy as vast as the federal government, strict application of claim preclusion could prevent agencies from pursuing important policy goals. For example, the Occupational Safety and Health Administration ("OSHA") and the Environmental Protection Agency ("EPA") both may regulate the discharge of toxic chemicals from a particular factory; both may need to go to court to enforce their regulations. But if for some reason OSHA completes its litigation against the factory before the EPA, subsequent litigation by the EPA might be precluded. In cases where agencies have such overlapping responsibilities and where one agency's litigation could preclude legal action by the other, courts have been unable to develop a workable test to balance the agency's interest in litigating its claim against the interest of the judicial system and parties in preventing duplicative suits.

This paper assesses the impact of changes in products liability law by measuring liability insurance expenditures. Expenditure for liability insurance premiums is used as an index of resource redistribution from sellers of defective products to individuals who have been harmed by such products. Using multiple regression, comparative state data are analyzed for the period immediately prior to the enactment of the Consumer Products Safety Act in 1972, when doctrines concerning manufacturers' liability for defective products were changing in the direction of stricter negligence standards and thus greater liability for the manufacturer. Three types of products liability policies were in effect among the 50 states at that time. They were strict liability in tort, negligence plus warranty with no privity requirement, and negligence plus warranty with privity of contract required. Data from states with strict liability policies are compared with data from states where the negligence plus warranty standards were used. In states where manufacturers were subject to greater liability for defective products, more money was spent on liability insurance. This example from one area of tort law shows that common law decisions can have important social effects, and suggests a method for measuring those effects.

THE scientific and technological revolution through which our society is proceeding is accompanied by vast changes in existing products as well as a proliferation of new products, notably with respect to drugs, cosmetics, and other chemical products. For example, it has been noted that three fourths of the prescriptions written by doctors in the United States today are for drugs and vaccines which were unknown in 1950.1

S INCE the epic decision of Mr. Justice Cardozo in the MacPherson case,' the courts have increasingly recognized that the manufacturer of a chattel has a duty of care to the ultimate consumer or user.2 So completely has this principle of law come to be accepted that in a recent case the defendant, General Motors Corporation, did not dispute its legal obligation to an ultimate user not in privity, and Judge Goodrich noted that "this principle has now become so well established that it would be sheer affectation to pile up citation of decisions upon it." 3 Manufacturers have been held liable for injuries caused by vehicles sold with a wide array of defects.4 Where the alleged defect was one of design rather than construction, however, the courts have long seemed reluctant to impose liability on the manufacturer.5 An exception has been an occasional case involving breach of an express warranty where the equities strongly favored the injured plaintiff who had purchased an automobile in reliance on a false assurance as to

The choice in favor of "strict products liability" has already been made, amidst a clamor of commentary, in many jurisdictions across the country. Even after the initial choice is made, however, there remain many questions which demand attention: which defendants exactly may be liable to which plaintiffs, and for just what sort of defect? The author considers what the answers to these and other questions are or will be under the two principal approaches to products liability, the approach of the Restatement of Torts, Second, and the Virginia approach, which sets products liability problems in the context of the Uniform Commercial Code provisions on warranties. The author finds that the results under the two approaches will differ less than might be expected, and he concludes that the Virginia approach is preferable, chiefly because of the freedom, suitably limited, which it allows the parties to modify or exclude warranties or remedies by contract.

In view of the importance of the subject it is unfortunate that so few of the reported cases on equitable receiverships of corporations have dealt in any comprehensive way with the principles underlying the administrating of the fund for the benefit of creditors. The result is that controversy has outstripped authoritative decision, and the subj ect is unsettled. To this generalization an exception must be noted in respect of the special topic of the application of current railway income to current expenses, before the payment of mortgage indebtedness.' On another disputed topic, the provability of immature claims, the law, or at least the right principle of decision, has been settled, by the notable opinion of Judge Noyes in Pennsylvania Steel Company v. New York City Railway Company,2 followed and reinforced by that of Mr. Justice Holmes in William Filene's Sons Company v. Weed.3 Notwithstanding these important exceptions, the dearth of authority on the general subject is such that Judge Noyes refers to a case cited in his opinion as "almost the only case in which rules have "been formulated with respect to the provability of claims against "insolvent corporations."4 Upon the particular phase of the subject here discussed, the decisions are to, some extent in conflict, and no attempt seems to have been made in text books or decisions to examine the question in the light of principle. Black, for example, dismisses the subject by saying it is generally conceded that a receiver and the corporation whose property is under his charge "are so far in privity that a judgment against the

It is generally stated as a fundamental requirement of a real covenant or covenant "running with the land" that there must exist "privity of estate."'1 An examination of the nature of such a requirement-a problem which has troubled many of the great legal scholars2has much of interest to the legal student not merely because the authorities are in confusion and discord but especially because it is apparent that here the courts in defining an expression of some degree of antiquity in the law are powerfully influenced by modern and diverse views of public policy towards encumbrances on real estate titles. In certain jurisdictions a policy against such encumbrances is so strongly felt that except as to covenants in leases the obligations of all covenants are in general unenforceable except against the original covenantors. In the majority of jurisdictions in this country, however, covenants may run with the land, but only if there exists privity of estate as defined by the local law. As we shall see, the basic element of this requirement is what distinguishes a real covenant-a covenant so connected with realty that either the right to enforce or the duty to perform passes to assigns of the land-from an interest "in the land of another" such as an easement or profit.3 An easement is, in theory, considered as if attached to the land itself so as to pass with it4 even in favor of or against disseisors; while a real covenant passes only to successors to the estate-privies in estate-of either of the original contracting parties. The basis of transfer of an easement interest is the taking of the land; the basis of transfer of a real covenant is succession to a particular estate in the land. Hence "privity of estate" is a means of explaining and justifying the transfer of certain legal benefits and obligations.