Jeff Todd

Avoiding Litigation for Product Instructions and Warnings

The plaintiff suing for injuries arising from a product with allegedly defective instructions or warnings has the burden of proving each of the elements for every cause of action asserted, while the defendant prevails by defeating just one element for each cause of action. Technical communicators can increase their legal literacy by learning the elements that are most easily defeated and thereby avoid subjecting their product instructions and warnings to litigation. This article surveys the existing scholarship to show the need for more attention to legal terms, theory, and practice before explaining how lawyers approach litigation. The article then turns to each of the main causes of action—the functional approach of the Restatement (Third) of Torts: Products Liability, negligence, and breach of express warranty and misrepresentation—with an emphasis upon the elements that are most within the control of the technical communicator.

Trade Treaties, Citizen Submissions, and Environmental Justice

The history of the U.S. environmental justice movement reveals that successful campaigns are seldom waged solely through litigation. Instead, communities have employed litigation and administrative actions as part of a broader grassroots struggle to achieve shortand long-term change. Even when not successful on the merits, such actions can facilitate both informationgathering and information-dissemination, with the accompanying public scrutiny providing an increased incentive to reform agency or corporate behavior. Latin American communities seeking environmental justice face similar, and often greater, obstacles in pursuing claims through the courts. Transnational corporations, operating under U.S. trade and investment treaties like the North American Free Trade Agreement, can take advantage of ineffective environmental protection regimes in Latin American countries and generally escape liability in U.S. courts as well. Yet these trade treaties also include a citizen submission on enforcement matters process, where citizens can spotlight environmental violations and force an oversight body to generate and publish an authoritative factual record. This Article assesses this citizen submissions process in the context of a holistic approach to environmental justice campaigns. Drawing on parallels from the U.S. movement, the Article highlights how the citizen submissions process can validate data gathered by the community, facilitate generation of new information, publicize that information to a much wider audience, and provide a meaningful rallying point for community organizing. The Article concludes that, while the factual record itself holds limited value as a standalone remedy, the informational aspects of the process nonetheless can be an effective compliance-promoting tool in a broader environmental justice campaign.

Ecospeak in Transnational Environmental Tort Proceedings

Scholars have proposed numerous solutions to the procedural hurdles facing non-U.S. claimants like forum non conveniens and non-recognition of foreign money judgments, including allowing an arbitration forum as part of Bilateral Investment Treaties (BITs). This Article explains and applies environmental rhetoric to examine the positions taken by Chevron-Texaco and the Republic of Ecuador in an ongoing environmental dispute involving indigenous Ecuadorans to show how they continually reduce the complex and intersecting interests of the stakeholders into simplistic us-versus-them binaries to gain strategic advantage. While the rhetorical analysis concludes that the proffered solutions may not be viable, it also suggests ways in which the shared interests of the parties could lead to alternative solutions.