This Issue is Dedicated to John Pickering, Class of 1940

John Pickering was one of the University of Michigan Law School’s most distinguished alumni. Although it is impossible to capture all of the ways in which he influenced the law, the legal profession, and generations of lawyers, parts of his story are told in the following tributes, which are adapted from the transcript of a special session of the U.S. District Court for the District of Columbia held in his honor on May 11, 2005.

Recent empirical studies by economists have shown, without exception, that capital punishment deters crime. Using large data sets that combine information from all fifty states over many years, the studies show that, on average, an additional execution deters many murders. The studies have received much publicity, and death penalty advocates often cite them to show that capital punishment is sound policy.

In toxic tort litigation, causation is the rub. Plaintiffs have, in large part, been stymied by their inability to establish that toxic agents, no matter how potentially dangerous, were actually responsible for the harms they have suffered. Their difficulties in this regard have increased exponentially since the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. With great frequency, plaintiffs have been unable to convince courts to admit expert testimony that a given agent was causally responsible for the plaintiff’s injury. Courts and scholars are in sharp disagreement as to the wisdom of Daubert and whether it has been fairly applied. The authors of this Article are not of one mind on either of the above issues.

Government increasingly leverages its regulatory function by embodying in law standards that are promulgated and copyrighted by non-governmental organizations. Departures from such standards expose citizens to criminal, civil, and administrative sanctions, yet private actors generate, control, and limit access to them. Despite governmental ambitions, no one is responsible for evaluating the legitimacy of this approach ex ante and no framework exists to facilitate analysis. This Article contributes an analytical framework and proposes institutional mechanisms to implement it.

In re Elsner grew out of the rejection of the plant patent applications of Mr. Elsner and Mr. Zary. Mr. Elsner is a plant breeder who resides in Germany and who maintains and “invents” new geraniums. In 1997 he filed an application for a Plant Breeder’s Rights (“PBR”) certificate at the European Community Plant Variety Office that was subsequently published. The application was for a new type of geranium that originated as a mutation of a parent geranium named Pendec.