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Taking wrongful death seriously: Dworkinian interpretivism and the common law right of action for wrongful death.


This article asserts that the late Ronald Dworkin's theory of adjudication can be harnessed by sympathetic courts to find that there is a common law right of action for wrongful death. The need to recognize such a right will be addressed in Part I, and will be followed by a discussion of Dworkin's general theory of adjudication in Part II. (1) Part III will summarize the popular history of the wrongful death cause of action, showing that the dichotomous lines of cases both upholding and denying the common law existence of a wrongful death claim indicate that such suits are indeed "hard cases" in the Dworkinian sense of the phrase. (2) Part IV will discuss Dworkin's rights-based theory in the context of a contemporary wrongful death case in which the dissenting judge's opinion demonstrates how Dworkin's adjudicatory theory can be used to recognize the common law cause of action for wrongful death. (3) Finally, Part V concludes that judicial application of Dworkin's theory in wrongful death suits will result in the "right answer." (4)


The Anglo-American legal institutions allow a husband, wife, child, or other statutorily defined person to recover damages in tort for the wrongful death of a loved one. It may seem peculiar to note the availability of such allowances in anything other than a compendium of the various damage awards due a victim of negligence. Wrongful death statutes are ubiquitous and it is unimaginable that a court would bar, for example, a husband from collecting damages for the loss of society from an individual whose unreasonable behavior resulted in the death of his wife. It is equally unimaginable that American and English public opinion would deem such a result correct, just, or moral. However, while commentators have touted the many benefits of the common law legal systems, (5) there is a dark side to the tort of wrongful death. Although every American jurisdiction allows for the recovery of damages for wrongful death, such a right can also easily be limited or eliminated in many jurisdictions by the legislature due to the general rule that wrongful death was absent at common law. (6)

The rule that wrongful death was absent at common law is believed to have its origins in 1808. At that time, His Majesty's Chief Justice Lord Ellenborough declared in Baker v. Bolton:"[i]n a Civil court, the death of a human being could not be complained of as an injury." (7) Although, this statement was vilified by English and American commentators alike, (8) the idea quickly became the rule. In response, the English Parliament enacted Lord Campbell's Act, a wrongful death statute, to remedy the inequity created by Baker. (9) In the United States, the Baker rule was first accepted by the Massachusetts high court in 1848. (10) Court after court followed Massachusetts' lead, such that the vast majority of states (11) now declare that wrongful death is a legislatively created right of action, unrecognized at common law. (12)

Why does this matter? A right that owes its existence wholly to the legislature can, in turn, be eliminated by that body. However, even if a state legislature eliminated all statutes pertaining to civil causes of action, an individual could still file a common law action. For example, if an individual was injured by a reckless automobile driver while crossing the street, the litigant would only need to cite case law upholding one's right to sue in tort for negligence. (13) If, however, the accident victim was killed, instead of "merely" injured, the victim's loved ones would not be able to sue for wrongful death based on common law principles, because most courts maintain that there is no right of action for wrongful death. Thus, there is no residual right to sue based on a loved one's death in the absence of statute. (14)

Additionally, legislative dominance over wrongful death has resulted in unfair statute of limitations provisions and limitations on damages. (15) This can be illustrated by recent developments in the State of Missouri's medical malpractice law. The Supreme Court of Missouri recently held that pain and suffering damages in medical malpractice suits may not be legislatively limited due to the fact that no such limits were used or known at common law. However, the Missouri high court upheld such caps in wrongful death medical malpractice claims, writing that wrongful death was not recognized at common law. (16) This environment creates a situation where a Missouri physician may owe less in damages if an operation results in a patient's death rather than injury. (17)

The future, however, need not be bleak. Present within the institutional history of general American decisional law are judicial decisions that rebelled against the orthodoxy of Baker. From state to state, and even to the halls of the Supreme Court of the United States, judges have discovered that there is a common law basis for finding that one can recover for the death of a loved one for injuries sustained in their own right. (18) A very small minority of courts currently acknowledge such a right. (19) The presence of such decisions, from the early colonial period to the present-day, indicates that there is a common law principle consistent with normative American values that declares that a person's right to recover in tort for the wrongful death of another is not dependent on statutory enactment.

This is where legal philosophy comes in. The late Professor Ronald Dworkin conceived of a theory of adjudication that was based on the presence of "principles" that, together with legal rules created by courts and legislatures, make up the "law." (20) Dworkin declared that in "hard cases" where the legal rules "run out" (i.e., there is no applicable positive law available to resolve the issue, or perhaps there are competing rules or standards that speak to the issue), judges can, and for the most part do, use vague, general principles to resolve those cases. (21) This theory explains that judges do not use discretion when deciding hard cases, which would violate principles of legality prohibiting the creation of legal duties with retroactive effect, but instead apply standards that were already present in the law, but were simply not codified or made necessarily explicit. (22) Using Dworkin's theory of adjudication, courts throughout the United States have the ability to rid themselves of the constraints of formalism and to find within their communities a principle of law that can be used to bar the legislature from placing unjust limitations on a loved one's right to recover in tort for wrongful death.


Ronald Dworkin's contribution to legal philosophy, liberal constitutional interpretation, and the reinvigoration of moral theory in the modern age has ensured his place in the jurispmdential pantheon. (23) To his admirers he was "the primary legal philosopher of his generation," (24) to his critics he was "elitist and undemocratic" and a legal paternalist; (25) but to nearly all lawyers, legal philosophers, and others who studied his works he was acknowledged as an intellectual heavyweight and thought-provoking writer. (26) Dworkin's primary jurispmdential contribution concerned his theory of adjudication, which conceived of judicial decision-making as inseparable from community morality. (27) This concept, known as a rights-based theory of adjudication, asserts that lawyers and judges advocate legal propositions and issue decisions that are based on institutional history and normative conceptions of justice and morality. (28)

Dworkin used the "judicial decision" to explain his rights-based theory of decision-making because "judicial argument about claims of law is a useful paradigm for exploring the central, propositional aspect of legal practice." (29) The impetus for using such a mode of explication stemmed from his criticism of the positivist theories of law, especially as championed by the great legal philosopher H.L.A. Hart (co-eponymous hero of the Hart-Dworkin debates, as well as Dworkin's former instructor at Oxford), (30) which emphasizes the "separability" of law from morality. While Dworkin's philosophical views were not stagnant throughout the years, (32) his fundamental understanding of law as a closed, cohesive system was fully developed in his 1986 book Law's Empire. (33) The following sections explain Dworkin's theory of adjudication, with emphasis on his belief in the presence of legal principles and his formulation of law as an interpretive concept. (34) First, however, it will be helpful to summarize Dworkin's critique of Haitian positivism. Together with future materials, these explanations will show the presence of a fundamental and general right to compensation for the death of a loved one in tort divorced from statute.

A. Critique of the Plain-Fact View of Law

Dworkin's theory of law, entitled "interpretivism," was borne out of his disagreement with the positivists' separation of the systems of law and moral values. (35) According to Dworkin, a conceptual philosophy that discounts such a connection also discounts the theoretical foundations of legal argument (36) and impedes the correct development of legal theory due to its reliance on mere semantics. (37) Such semantic theories assert that disagreements over

legal propositions stem from differing definitions of "law," and claim that:

   [L]aw depends only on matters of plain historical
   fact, that the only sensible disagreement about law
   is empirical disagreement about what legal institutions
   have actually decided in the past, that ... theoretical
   disagreement is illusory and better understood
   as argument not about what law is but about
   what it should be. (38)

This theory does not comport with the Dworkinian definition of legal argument. (39) Simply stated, Dworkin's emphasis on the centrality of morality and interpretation with relation to legal propositions was not created in a vacuum, but was instead a direct attack on positivism, which embodies what he viewed to be a semantic theory of law. Dworkin chose to attack that brand of positivism championed by H.L.A. Hart, (40) presumably to demonstrate the weakness of any legal theory that discounts the normative foundations of law.

Positivism seeks to explain what the law is, as opposed to what it ought to be. (41) As such, a positivist explanation of law is empirically based, and the positivist is not swayed by the naturalist's insistence that morals take precedence over positive law. (42) Two theses serve to distinguish, as well as unite, different positivist theories: the Social Thesis and the Separability Thesis. (43) The Social Thesis concerns arguments relating to the rules that "set out" the legal criteria for any given society (i.e., the rule of recognition which so agitated Dworkin). (44) The Separability Thesis holds that moral and legal arguments are distinct, such that "there is no necessary connection between law and morals ...," (45) Hart's theory of positivism, made famous in his book The Concept of Law, (46) is arguably the most influential positivist explanation. Its primacy, as well as Dworkin's intimate knowledge of Hart's jurisprudence, made Haitian positivism Dworkin's primary target in his attack.

Dworkin's main contention with Hart's concept of law concerned its emphasis on the existence of a rule of recognition, as well as its characterization of the judicial decision-making process in hard, or "penumbral," cases. (47) The rule of recognition is a "rule about rules" that "determines which rules [within a given society] are binding." (48) According to Dworkin, Hart's rule of recognition creates tests based on "pedigree" because it dictates that whether a society's laws are valid depends on whether such laws come from authoritative institutions such as legislatures and courts that are accepted by the community. (49) Therefore, according to such a semantic theory of law, where there is no statute or judicial decision on point, there is no law. (50) Dworkin dismissed such a rule of recognition because it did not take into account non-codified principles of law that, Dworkin maintained, judges use to decide hard cases. (51)

In connection with his epistemic belief in the existence of legal principles, Dworkin also disagreed with Hart's assertion that judges use discretion when deciding hard cases. He posited that judges create legal rules when a case presents a factual issue in which no statute or precedent is directly applicable. (52) Dworkin believed that legal principles present in the judge's community's values together with the judge's beliefs concerning "political fairness" and morality, form the judge's interpretive definition of the law. (53)

Dworkin's criticisms of positivism, and "semantic" theories of law more generally, will be more intelligible after explanation of his twin beliefs in principles of law (54) and law as an interpretive activity. (55) Following an explanation of Dworkin's adjudicatory theory, the argument for the existence of wrongful death as a common law right of action will make more sense. More importantly, it will show that judges need not feel constrained by blind acceptance to precedent (with questionable authority (56)) when another, perhaps more "right," answer is within their abilities to issue. (57)

B. Rules and Principles

Central to the principle of interpretivism is the idea that law consists of rules (e.g., statutes and decisions issued by institutions accepted by the community as creating binding legal authority), as well as "the principles that provide the best moral justification for those enacted rules." (58) Dworkin's belief in the normative foundation of principles, as well as the judge's use of his or her own notions of justice and morality in applying such principles, connects morality and law in a way denied by positivism. (59) An understanding of the rule-principle distinction is important in order to understand Dworkin's theory of adjudication.

Rules are unshakable rubrics absolutely dependent on the facts to which they pertain. (60) The specific factual condition being met is a condition precedent of a particular rule's applicability. (61) As explained by Professor Kenneth Himma:

   Rules are applicable in an all-or-nothing way; if the
   facts stipulated by the rule are given, the rule supplies
   a conclusive answer. Thus, for example, if I
   am driving 90 mph on 1-5, the rule prohibiting driving
   in excess of 60 mph dictates that I should be
   ticketed for speeding. (62)

These rules flow from constitutions, statutes, regulations, judicial decisions, and the like. Dworkin wrote that a principle is "a standard that is to be observed, not because it will advance or secure an economic, political, or social institution deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality." (63) Thus, they are born out of the community's values and facilitate the judicial decision-making process. (64) Such standards are given different levels of weight depending on the specific factual circumstances at hand, and are not binding on the decision-maker. (65)

In his book Taking Rights Seriously, Dworkin relied on the case of Riggs v. Palmer to explain judicial use of legal principles. (66) In Riggs, an heir who murdered his grandfather was unable to receive his portion of his grandfather's will based on the principle that "[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime." (67) No prior case or statutory provision provided such a rule, (68) yet the Riggs court believed that the principle was a "fundamental maxim[] of the common law." (69) In a different situation such a norm may not apply; however, in the case of a murderous heir, the principle that no man shall profit from his own wrong was given great weight. (70)

Judges rely on normative principles to formulate judicial decisions, especially when no rules give guidance, or when there are multiple principles in the community's institutional history that also speak to the issue at hand.

C. Law as Interpretation

Dworkin's theory of law was entitled "interpretivism" because he believed that a judge takes part in an interpretive activity when he or she decides a hard case. (71) Any given case, especially difficult common law cases, may implicate multiple available interpretations, one of which provides the best justification for a given legal proposition. (72) The judge must choose the interpretation with the best "fit" and "justification" consistent with past decisional history, normative community values, and the judge's attitudes concerning justice and morality. (73)

Dworkin conceived of judicial interpretation as consisting of three phases. (74) First, the judge identifies the contending principles and rules that make up the practice in question in the "preinterpretive" stage. (75) Second, the judge determines why a certain practice should be pursued. (76) In this "interpretive" stage the judge chooses a justification for the practice. (77) Lastly, in the "postinterpretive" stage the judge issues a decision that fits and justifies the prior decisional history of the practice. (78) Dworkin's ideal judge, "Hercules," (79) methodically tests each interpretation before settling on a "coherent theory about legal rights" that is de pendent on his conceptions of justice and fairness. (80)

Throughout this process, the judge acts as one author in a "chain of common law," such that his decision serves to extend the "story" told by prior decisions. Dworkin termed this conception "law as integrity," its primary characteristic being the idea that law is an "unfolding political narrative." Dworkin wrote:

   Law as integrity asks a judge deciding a common-law
   case ... to think of himself as an author in the
   chain of common law. He knows that other judges
   have decided cases that, although not exactly like
   his case, deal with related problems; he must interpret
   and then continue, according to his own judgment
   of how to make the developing story as good
   as it can be.... The judge's decision--his
   postinterpretive conclusions--must be drawn from
   an interpretation that both fits and justifies what has
   gone before, so far as that is possible. But in law as
   in literature the interplay between fit and justification
   is complex. Just as interpretation within a chain
   novel is for each interpreter a delicate balance
   among different types of literary and artistic attitudes,
   so in law it is a delicate balance among political
   convictions of different sorts.... (83)

In such a way does a judge make a decision consistent with integrity. (84)

History is thus important in a Dworkinian interpretivist approach to judicial decision-making; however, Dworkin did not demand that judges blindly accept precedent, (85) but merely that they issue decisions which fit and justify a particular practice while showing it in its best light. (86) So while the fit and justification factors constrain decisions that have no basis whatsoever in the past judicial chain, a post-interpretive decision in conformance with the judge's, and the judge's community's, standards of justice, fairness, and morality will be consistent with law as integrity. (87)

The next section explains that because of its historical development, wrongful death cases are hard cases; and this very same history shows that there is a principle which states that one has a common law right to sue in tort for the wrongful death of a loved one, and that a judge who believes that this principle is accompanied by enough moral force and community acceptance can and should apply it in such cases. (88)


The following sections briefly describe the history of wrongful death, beginning with a discussion of Baker and its progeny. (89) Following this discussion is a profile of a line of cases beginning in the seventeenth century and continuing down into the present that indicate that there are actually two competing "chains" of wrongful death decisional law--one which denies its common law existence (Baker and its progeny), and another which accepts such a principle as a fundamental component of the common law that render arguments concerning wrongful death's common law existence Dworkinian hard cases. (90)

The latter cases do not themselves create the common law right of action, but instead indicate that there is indeed such a principle consistent with general notions of justice embedded in our nation's history. The cases' existences are nonetheless excellent tools that can be, and are used by attorneys and judges who try to explain that wrongful death was extant at common law. Even while principles need not be codified or announced in a judicial opinion in order to exist, Dworkin wrote that "if we were challenged to back up our claim that some principle is a principle of law ... [u]nless we could find some such institutional support, we would probably fail to make out our case, and the more support we found, the more weight we could claim for the principle." (91) Therefore, while the cases noted in Part III.B represent various regions of the country and time periods, they indicate that Baker's rule is not the only wrongful death principle. (92)

If judges and attorneys who favor the common law wrongful death principle more fully grasp Dworkin's adjudicatory theory, they may be more forceful in their arguments; they would not be "making up" the law when they assert the common law wrongful death principle, but merely applying an existent, albeit sometimes hidden, principle of the law. (93) Before identifying the cases that support such a principle, however, first we must examine the dominant wrongful death principle. (94)

A. Baker and its Progeny

Any discussion of the common law antecedents of wrongful death must begin, conclude, or somehow intersect with Baker v. Bolton. In Baker, a husband was denied damages stemming from the death of his wife due to a tragic stagecoach accident. (95) In his

disposition of the case, Lord Ellenborough pronounced that "[i]n a Civil court, the death of a human being could not be complained of as an injury," and although this phrase would become important to countless litigants through the years, (96) the Lord Chief Justice supplied no reasoning in support of his decision. (97) However, his rule became codified when, almost forty years later, the draftsmen of Lord Campbell's Act stated, in the statute's preamble, that "no Action at Law is now maintainable against a Person who by his wrongful Act, Neglect, or Default may have caused the Death of another Person...." (98) What was the basis for Lord Ellenborough's decision, and must it be accepted today?

Professor Wex Malone believed that the basis for the Baker decision, and its subsequent acceptance by Parliament and the courts, may have stemmed from the development of the "felony merger" doctrine. (99) According to that doctrine, a private right of action was merged with any corresponding felony with which the wrongdoer was charged. (100) Felonies were offenses to the Crown and so upon conviction the murderer was executed and the Crown confiscated all of his property. (101) The confiscation of the felon's property left no room for any private recovery. Professor Malone, in "The Genesis of Wrongful Death," expressed confusion as to the origin of the felony-merger doctrine, due to the fact that Anglo-Saxon law at one time allowed a payment (styled a wer) to the decedent's kin alongside a penalty owed to the Crown (a wite) (103) Even as actions began to be merged into felonies, family members of the deceased were allowed to bring an appeal of murdrum, (104) a private criminal appeal which many times ended in settlement. (105) However, eventually courts began to conclude that a felonious wrongdoer was unable to be sued concomitantly in civil court, such that in 1607 an English court cited the felony-merger doctrine as the reason it denied a husband the ability to recover damages for the death of his wife. (106) Despite the English law's Anglo-Saxon antecedents, Baker's rule became the norm in England. (107)

The first American decision to adhere to Baker was decided in 1848. In that year the Massachusetts high court in Carey v. Berkshire R. Co. denied a wife's common law action for the wrongful death of her husband. (108) The court stated:

   If these actions, or either of them, can be maintained,
   it must be upon some established principle
   of the common law. And we might expect to find
   that principle applied in some adjudged case in the
   English books; as occasions for its application must
   have arisen in very many instances. At the least, we
   might expect to find the principle stated in some elementary
   treatise of approved authority. None such
   was cited by counsel; and we cannot find any. This
   is very strong evidence, though not conclusive, that
   such actions cannot be supported. But it is not necessary
   to rely entirely on this negative evidence. For
   we find it adjudged, in Baker v. Bolton & others, 1
   Campb. 492, that the death of a human being is not
   the ground of an action for damages. (109)

Thus, two years after Lord Campbell's Act was drafted, an American court explicitly lent credence to Lord Ellenborough's decision. (110) However, the court's rationale rested solely on Baker, and furthermore it denied that the felony-merger doctrine had any relevance in its decision. (111) This was typical of early American courts, as they generally rejected the felony-merger doctrine. (112)

Court after court followed Massachusetts' lead, declaring that there was no principle upholding a claimant's common law right to bring a wrongful death action, and state legislatures universally enacted wrongful death statutes to cure the alleged defect in the common law. (113) Even so, an adequate defense has never been produced for Baker or American courts' acceptance of the Baker rule, which is necessary considering Baker's possible basis in a doctrine (felony-merger) that was never applicable in the United States. (114) Whether reasonably or not, the vast majority of judicial decisions post-Carey applied Baker and its progeny. Not all courts, however, have felt so constrained.

B. Precedential Apostates?

Despite general acceptance of the Baker rule in the United States, there are notable exceptions to such convention. Present within the institutional history of general American law are courts who accepted the existence of a principle of law which allows a litigant to recover in tort for the wrongful death of a loved one absent any statutory source. For example, before Baker and Carey, Courts in Massachusetts and Connecticut were comfortable awarding damages for non-economic losses suffered by loved ones of the deceased. (115) Other courts embraced such a right even after Carey was decided. (116) Massachusetts overruled Carey over one hundred years after that decision was issued, following the Supreme Court of the United States' (then) recent decision holding that general maritime law does not prohibit a non-statutorily-based action for wrongful death. (117) As will be discussed below, the Supreme Court's dicta in the latter case is perhaps the most emphatic statement made by any U.S. court declaring the existence of such a principle. (118)

1. Back to Our Roots: Early American Decisions

In his examination of early colonial decisions and legislation, Professor Malone concluded that there are "no observation[s] in colonial statutes or decisions lending any support to a belief that a death claim would have been denied by our colonial ancestors." (119) Supporting this position, Malone cited several instances of seventeenth-century Massachusetts Bay Colony Court of Assistants criminal proceedings in which, concurrent with criminal penalties, persons charged with crimes such as manslaughter were frequently ordered to pay damages to the decedents' families. (120) There were similar legislative enactments imposing municipal liability for negligent construction or failure to repair roads and bridges. (121) In 1794, in what may be considered the earliest recorded medical malpractice decision, Connecticut's highest court held in Cross v. Guthery that a surgeon was liable for his patient's death and ordered that the surgeon pay damages to the patient's husband. (122) Further, the court rejected the surgeon's argument that he was not liable pursuant to the felony-merger doctrine. (123)

The early colonial cases do not represent discrepancies in the general common law; they demonstrate that American common law, as distinct from its ancestral counterpart in England, recognized a non-statutorily-based private right of action for wrongful death. (124) Courts in Maine, (125) Missouri, (126) Georgia, (127) and New York (128) acknowledged a common law right of action for wrongful death, although later decisions repudiated those earlier decisions as being contrary to the common law "rule." (129) For example, in James v. Christy, which was decided by the Supreme Court of Missouri two years before it enacted its wrongful death statute, the state's supreme court acknowledged a father's right to damages for loss of services incurred due to his son's death. (131) More than one hundred years later, Judge Bardgett of the Supreme Court of Missouri declared that James stood for the proposition that the right to recover damages for the death of a loved one was extant in the common law of Missouri. (132) In a dissenting opinion, Judge Bardgett stated:

   Although courts of this and other states have repetitively said
   that there was no action for wrongful death prior to the enactment
   of death damage statutes, the fact is that in Missouri there was a
   cause of action available, at least to the parent when the minor
   child was negligently killed, for loss of services during minority
   and the other damages spoken of in [James]. (133)

While the majority of modern courts seem content with brushing aside these early decisions, the aforementioned cases demonstrate that, historically, there have been competing chains of institutional thought with regard to the common law right of action for wrongful death. (134)

The weight of the principle advanced in this article, as well as by numerous other writers and cases, (135) is powerful not only because it has been advanced in a string of cases beginning in the seventeenth century. The twentieth century was home to two giant decisions that gave the existence of a principle embodying the common law right to wrongful death prevalence in the modern age. (136) Those two cases, along with Hawaii's acceptance of a common law right to wrongful death and comment k to [section] 925 of the Restatement (Second) of Torts, are discussed below. (137)

2. Common Law Rights and Common Law Principles

Were it not for the United States Supreme Court's 1970 decision in Moragne v. States Marine Lines, (138) arguments in favor of judicial recognition of a common law right to wrongful death damages would be far less persuasive. The Moragne Court declared in emphatic terms that wrongful death is a part of American law. (139) In fact, Moragne served as the impetus for the Massachusetts high court's overruling of Carey, (140) and is often cited in arguments supporting the principle that it announces. (141)

a. Moragne v. States Marine Lines, Inc.

The issue in Moragne was whether maritime law recognized an action for wrongful death independent of statute. (142) The case involved the death of a longshoreman who died while in Florida's navigable waters. (143) Prior decisions notwithstanding, the Court ultimately concluded that there was such a right in maritime law. (144) More important, however, is the Court's discussion of "land-based" wrongful death. (145)

Justice Harlan, writing for a unanimous Court, began his analysis by noting the illogicality of Baker v. Bolton. He opined that "nothing in ordinary notions of justice suggests that a violation should be nonactionable simply because it was serious enough to

cause death." (146) The Court cited American cases that denied Baker's, holding, and noted criticisms of the rule by English jurists who acknowledged Baker's precedential value despite their feelings of abhorrence towards its enforcement. (147) Justice Harlan found no adequate support in the felony-merger doctrine, nor any other explanation for the American courts' general acceptance of Lord Ellenborough's statement. (148) Justice Harlan concluded that "[t]he most likely reason that the English rule was adopted in this country without much question is simply that it had the blessing of age." (149)

Justice Harlan confronted the specific question of whether there was a maritime right for wrongful death by analyzing the general effect of wrongful death legislation on the common law. Wrote Justice Harlan: "It has always been the duty of the common-law court to perceive the impact of major legislative innovations and to interweave the new legislative policies with the inherited body of common-law principles--many of them deriving from earlier legislative exertions." (150) According to Moragne, a statute's legislative policies and objectives become a part of the common law throughout the statute's development, a development that includes judicial construction and interpretation. (151) Therefore, universal enactment of wrongful death statutes by the states as well as federal legislation conferring statutory rights of action in the case of wrongful death in certain instances, (152) have breathed life into the principle recognizing that wrongful death is now a "general rule of American law." (153)

While the Moragne Court declared that wrongful death is a common law right based on the ubiquity of wrongful death statutes, such a reading is not necessarily inconsistent with the belief that one's right to seek damages in court for the wrongful death of another is independent of any statutory authorization. First, the Court rejected Baker's irrational holding, noting that English jurists declared it an unjust rule soon after it was issued. (154) This indicates that Baker was not consistent with general notions of political morality but was "based on a particular set of factors that had ... long since been thrown into discard in England, and that had never existed in this country at all." (155)

Further, Justice Harlan's conclusion as to wrongful death's position in "general" American law does not necessarily mean that the common law right of action for wrongful death wholly owes its existence to the universal enactment of death statutes. Instead, it seems to mean both that (i) commonly accepted principles encoded in legislation can and do stem from and gradually become consistent with general normative values; (156) and (ii) the ubiquitous existence of these statutes indicates that a principle already existed; the statutes are codifications of the principle that the people of the United States believe that seeking vindication for the loss of a loved one is a value embedded in their various communities. (157)

The Moragne Court's discussion of land-based wrongful death was dicta. Therefore, it did not carry with it the force of law. However, its language in support of a private right of action at common law influenced another prominent court--the Supreme Judicial Court of Massachusetts--in making a similar conclusion. Unlike Moragne, however, Massachusetts' decision affected a substantive change in that jurisdiction's wrongful death law.

b. Gaudette v. Webb

In Gaudette v. Webb, the Massachusetts high court overturned over one hundred years of precedent, reversing Carey v. Berkshire's perfunctory denial of a right of action for wrongful death at common law. The Gaudette litigation arose from a fatal automobile accident. (159) The practical effect of the decision was that the court allowed for Massachusetts' general statute of limitations' tolling provisions to apply to the plaintiffs' action, instead of the state's general wrongful death act's (harsher) tolling provisions. (160) It was the court's explicit rejection of Baker and Carey, however, which is of most importance to this discussion.

"[W]e are convinced," wrote the Gaudette court, "that the law in this Commonwealth has evolved to the point where it may now be held that the right to recovery for wrongful death is of common law origin, and so we hold." (161) In reaching this conclusion, the Supreme Judicial Court of Massachusetts relied almost exclusively on Moragne. (162) The Gaudette ruling ensured that the "barbarous" (163) decisions of Baker and Carey would have no application in the Bay State.

All jurisdictions in the United States have wrongful death statutes; however, when a jurisdiction provides a common law basis for wrongful death, it views the statute in a different light. The Gaudette court described its new view of the state's wrongful death statute thusly:

   Consequently, our wrongful death statute will no
   longer be regarded as 'creating the right' to recovery
   for wrongful death. They will be viewed rather
   as: (a) requiring the damages recoverable for
   wrongful death be based upon the degree of the defendant's
   culpability; (b) prescribing the range of
   the damages recoverable against each defendant; (c)
   requiring that any action for wrongful death be
   brought by a personal representative on behalf of
   the designated categories of beneficiaries; and (d)
   requiring that the action be commenced within the
   specified period of time, as a limitation upon the
   remedy and not upon the right. We further hold that
   statutes limiting the period for bringing actions for
   death are to be construed in the same manner as the
   limitations contained in ... the general statute of
   limitations, and that in appropriate cases they may
   be tolled by the various provisions [of the statute]. (164)

Thus, Gaudette stands for the proposition that, in Massachusetts, any wrongful death statute does not prescribe the right to sue, but merely the remedy. (165)

c. Hawaii's Acceptance of a Common Law Right of Action at Wrongful Death

The State of Hawaii was not a part of the United States when English common law was exported. In 1860, before the islands'

lands' annexation by the United States, the Kingdom of Hawaii issued an important opinion with regards to wrongful death. Uninhibited by notions of the validity of Baker v. Bolton, the Supreme Court of the Kingdom of Hawaii in Kake v. C.S. Horton, declared that Hawaii recognized a common law right of action for wrongful death. (166)

According to the court, Section 823 of Hawaii's Civil Code allowed Hawaiian courts "to cite and adopt, at their discretion, the reasonings and principles of the Common Law, or of the Civil Law, so far as the same may appear to the Court to be founded in justice, and not in conflict with the laws and customs of this Kingdom." (167) Making use of its discretionary authority in this regard, the Kake court adopted the general principles of civil law jurisdictions, such as France and Scotland, who did not adhere to Baker's denial of the common law right of action for wrongful death. (168) Believing such a holding to be "constant with natural law and reason," (169) the court decreed: "The principle which we now recognize will become, by judicial adoption, a valuable part of the Common Law of this Kingdom." (170) Thus, Kake created a common law right of action in wrongful death. (171)

d. Restatement (Second) of Torts [section] 925, Comment k

Before concluding this section on the "tools" judges and lawyers should use in order to successfully argue that there is a common law right of action for wrongful death in their jurisdictions, it is necessary to briefly examine one more tool: the Restatement (Second) of Torts [section] 925. Comment k to [section] 925 gives further support to the idea that the common law wrongful death principle is embedded in general community values. Comment k embodies a modern of acceptance of the principle, stating:

The prevalence of the wrongful death statutes, which are to be found in all jurisdictions, and their existence for substantially more than a hundred years have given rise to some decisions holding that the principle of a right of action for wrongful death has now become a part of the common law itself. In view of the "lack of any discernible basis" for the 1808 holding in Baker v. Bolton and its "harsh result" and of the scholarly criticism of the holding, it has been concluded that "there is no present public policy against allowing recovery for wrongful death," so that the right of action can now be regarded as arising under the common law. Most of the details of the right may be controlled by an existing statute or taken by analogy from one. When recognized, this common law right has been utilized to fill in unintended gaps in present statutes or to al low ameliorating common law principles to apply. (172)

In Sullivan v. Carlisle, the Supreme Court of Missouri rejected the argument that [section] 925 espoused the creation of a common law right of action in wrongful death where none already existed. (173) Section 925, however, seems to reiterate Moragne's original conclusion that statutory acceptance of wrongful death causes of action, as well as "the 'lack of any discernible basis' for the [Baker] holding," signifies that wrongful death does have a common law existence. (174) While the statutes may acknowledge the principle, it is clear that the principle is not dependent on the statutes for its existence. (175) Just like the cases discussed earlier in Part III.B.2(a)-(c) of this article, judges could use comment k as a tool in constructing an argument in favor of the existence of a common law right for wrongful death.

Comment k enforces the Dworkinian conception of principles by indicating that the right to bring an action for wrongful death does not rest on statutory enactment, but rather predates such statutes. While statutes can control the remedy provided by wrongful death (within equitable limits), (176) comment k confirms that the ubiquity of death acts reinforce the common law wrongful death principle, because the statutes affirm the various American communities' acceptance of such a right. (177) Using the Dworkinian theory of adjudication, however, it is up to the judge to decide whether comment k is consistent with her knowledge of her own and her community's conceptions of justice and fairness.

The preceding Part is intended to impart on the reader the proposition that wrongful death actions are hard cases in the Dworkinian sense of the phrase. This is because there are two chains of decisions interpreting the viability of a common law right of action for wrongful death. On one end of the spectrum is Baker and its progeny, (178) which make up the majority. On the other end is a line of cases and authorities beginning with the Massachusetts Bay Colony Court of Assistants (179) and Cross v. Guthery, (180) continuing down the line with Kake v. C.S. Horton, (181) James v. Christy,' (182) and the oft-cited New York, Maine, and Georgia cases (183) discussed above, and ending, so far, with Moragne, (184) Gaudette, and comment k of [section] 925 of the Restatement. (186) While the existence of the common law wrongful death principle is not dependent on such authorities, such authorities can be and are used as tools to show that a common law right does exist. In arguing for the validity of a certain doctrine, Dworkin wrote:

   We might argue, for example, that the use we make of earlier cases
   and statutes is supported by a particular analysis of the point of
   the practice of legislation or the doctrine of precedent, or by the
   principles of democratic theory, or by a particular position on the
   proper division of authority between national and local
   institutions, or something else of that sort. (187)

Of course, Dworkin also stated that principles "do not have a simple or direct enough connection with these acts to frame that connection in terms of criteria specified by some ultimate master rule of recognition." (188) However, use of the principle in question by competent legal institutions and persuasive authority such as [section] 925 of the Restatement is persuasive.

The next Part makes a simple plea to courts deciding claims in which the litigants argue that their wrongful death claim is derived from the common law in a jurisdiction which does not recognize such a right: use the aforementioned body of authority to find that there is at least a competing, if not necessarily dominating, principle in accordance with the litigant's argument. (189) If such an interpretation is accepted, then the judge need only determine whether her own conceptions of justice and morality, as well as that of her community, are in accordance with such a right.


Now it is time to view an application of Dworkin's interpretivist theory of adjudication to a modern wrongful death action. Considering the materials discussed above, it is entirely possible that a judge in a state that does not recognize the common law existence of wrongful death (i.e., the vast majority of states) can find such a principle extant within both his and his community's notions of justice and fairness. The 1990 Supreme Court of Texas case, Moreno v. Sterling Drug, Inc., in which an emotionally-charged dissenting opinion utilizes, presumably unwittingly, a Dworkinian-esque approach to analyzing the common law existence of wrongful death, demonstrates this possibility. (190)

Before discussing Moreno, however, an explanation regarding what it means to utilize a Dworkinian approach in arguing the validity of the common law wrongful death principle is necessary. First, a judge must acknowledge that there is a principle inherent in her community and supported by her own sense of morality and justice. (191) If she believes this is true then she acknowledges that wrongful death claims are hard cases because there are two competing principles: to either reject or support its common law existence. (192) Further, if she believes that the common law wrongful death principle is more persuasive than Baker's principle (and that it comports with her community's understandings of justice and fairness), then she has already constructed a comprehensive theory of wrongful death, portraying the tort in her conception of it in its best light. (193)

After this, all that is left is her post-interpretive conclusion. Understanding that her conclusion will lack any force in the face of a chain of case law emanating from Baker, the judge must utilize the holdings generated from the Massachusetts Bay Colony Courts of Assistants down to Moragne to support her argument that the principle that the right to bring a wrongful death action was extant at common law has been embedded in American values since the country's existence and announced in various decisions. (194) Such a conclusion will comport with law as integrity as long as the judge believes that her interpretation of wrongful death really does coincide with her and her community's values. (195) A judge's decision need not reach the answer concluded here to comport with integrity, but it must utilize the same method. (196) Now, we can discuss Moreno.

Moreno concerned the deaths of two Texas infants. (197) The infants' parents brought suit against Sterling Drug, Inc. upon learning that the manufacturer's drug, Bayer Children's Aspirin--which their children had been given--had been linked to Reye's syndrome, the cause of death of both infants. (198) Plaintiffs did not bring suit within the two-year statute of limitations imposed by the Texas Wrongful Death Act Statute of Limitations, (199) which sets the date of accrual for the limitations period at the death of the person. (200) Plaintiffs argued that the "discovery rule," (201) which tolls limitation periods in certain instances, should apply because they did not learn of the alleged link between the drug and Reye's syndrome within the two-year period following the infants' deaths. (202) The court rejected this argument due to the fact that prior decisions had only applied the discovery rule to causes of action in which the date of accrual was not defined, as it was in this instance. (203)

Plaintiffs contended that the wrongful death statute of limitations was in violation of the Texas Constitution's open courts provision if it did not allow use of the discovery rule. (204) Texas' open courts provision states: "All courts shall be open, and every person for an injury done to him, and his lands, goods, person or reputation, shall have remedy by due course of law." (205) Texas courts have determined that plaintiffs must establish a two-pronged test in order bring a cause of action under the open courts provision. (206) As explained by the court: "[F]irst, [the plaintiff] must show that he has a well-recognized common-law cause of action that is being restricted; and, second, he must show that the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute." (207) The plaintiffs were unable to establish the first prong--that their action was a "well-recognized common-law cause of action"--because Texas courts do not recognize that wrongful death is a common law right of action. (208) The plaintiffs were thus left with no remedy.

How would a Dworkinian interpretivist judge have decided the case? An incensed and stinging dissent in Moreno provides a good illustration of how a judge can argue for the common law existence of wrongful death. (209) Although the dissenting opinion did not acknowledge Dworkin, it embodied Dworkin's adjudicatory principles by resting on basic notions of justice and utilizing much of the institutional history discussed in Part III for support. While the opinion's analysis is well constructed and logical, it is apparent that it is based on the judge's epistemic belief in the existence of a common law right of action for wrongful death. Therefore it is a good example of how a judge can harness Dworkin's basic adjudicatory theory to promote his or her belief in wrongful death's common law existence.

In a well-reasoned and impassioned analysis, Justice Dogget, writing on behalf of two other members of the Supreme Court of Texas, described the Moreno majority's decision as "[a]n exercise in somnambulism," accusing it of "merely sleepwalk[ing] through the law, reciting the rule that there was no cause of action for death at common law but not engaging in conscious thought." (210) In Justice Dogget's subconscious pre-interpretive and interpretive stages, he perhaps accepted that there are two competing principles of wrongful death law: one is Baker's and its adhering Texas cases, and the other is that of a common law right of action in wrongful death. (211)

Justice Dogget believed that the latter principle was consistent with history and justice, and he formed a cohesive theory of wrongful death in pronouncing his post-interpretive conclusion, stating that the action "has evolved into a complex hybrid--part constitutional, part statutory and part judicially-developed common law." (212) He utilized much of the decisional history discussed above in Part III in support of his conclusion. Citing Moragne, James, Cross, Ford v. Monroe, (213) and Professor Malone's analysis in "The Genesis of Wrongful Death," Justice Dogget concluded that the Baker rule did not exist in the United States in 1840, when the Republic of Texas "adopted the common law of England to the extent consistent with the Constitution and laws of this state." (214) Texas' blind adherence to Baker notwithstanding, Justice Dogget believed that the institutional history of wrongful death in the United States belied the accepted majority rule. (215)

Justice Dogget's use of the decisional tools described above show that a Dworkinian interpretivist could comfortably find that not only does a principle stating that one has a common law right of action for wrongful death exist, but that it can supplant a chain of unreasoned decisions upholding Baker. Justice Dogget could also have cited Kake v. C.S. Horton, Gaudette, and the precedents set by the Massachusetts Bay Colony Court of Assistants in support of his reasoning.

Such persuasive precedents are meaningless, however, unless the common law judge finds the principle announced by the precedents to be consistent with justice and fairness. (216) Justice Dogget seemed to believe that when he stated: "The court's opinion can rightly be recorded as one of the most anti-family decisions in recent memory." (217) Continued Justice Dogget:

   It says to a wife who has lost a husband, to a child
   who has lost its parents, to the parents whose lives
   have been torn apart by the death of a child, your
   rights are denied; the merits of your claim against a
   hidden killer will never be considered by a Texas
   judge and jury. (218)

Therefore, Justice Dogget believed that the precedents upholding the common law wrongful death principle were more persuasive than Texas' acceptance of Baker and its progeny because acceptance of the status quo would continue to cheapen the injuries sustained by the loved ones of wrongful death victims. (219) Upholding such family members' rights would fit Justice Dogget's values, as well as Texas' (presumably, in his opinion), and if Justice Dogget had been in the majority, he would have recognized as preexisting, and thus not retroactively applied, the common law existence of wrongful death, and therefore would have recognized the possible viability of the Moreno plaintiffs' claims.

Texas is not a special example, but merely demonstrable of the blind adherence to orthodoxy that describes the majority of American decisions. If only Justice Dogget and his two dissenting colleagues could have garnered a majority, Moreno v. Sterling Drug could have been another Gaudette. However, instead that decision simply helped to further solidify Baker's prominence in Texas. This same result occurs far too often throughout the country; however, application of Dworkin's theory of adjudication would allow more judges to recognize the other, less visible chain in wrongful death's decisional history. It would also allow judges' decisions to comply with general American acceptance of the importance of allowing one to bring suit in civil court for the wrongful death of another without being barred for lack of statutory authorization.


Ronald Dworkin believed that if judges would only apply his theory of adjudication to hard cases they would always reach the "right answer." (220) This "right answer" thesis is perhaps the boldest epistemological claim that Dworkin made. It asserts that there is a discoverable, correct resolution to every hard case if the judge practices law with integrity. (221) This article submits that if a judge sifts through the dual chains of wrongful death's decisional history and selects the principle that fits both his and his community's notions of the best "version" of wrongful death, he will reach the right answer. However, a judge may find that the opposite answer comports with justice. This does not foreclose the applicability of Dworkin's adjudicative theory. Dworkin wrote that "law as integrity consists in an approach, in questions rather than answers, and other lawyers and judges who accept it would give different answers from [Hercules'] to the questions it asks.... If you reject these discrete views because you think them poor constructive interpretations of legal practice, however, you have not rejected law as integrity but rather have joined its enterprise." (222)

The institutional history of wrongful death in the United States contradicts the majority of courts' strict adherence to the "rule" that there is no common law right of action for wrongful death. The chain of decisions beginning in the seventeenth century and spanning across the continent, the writings of such scholars as Professor Malone, and comment k to [section] 925 of the Restatement indicates that there is a viable argument to be made that the right to bring a wrongful death claim is not dependent on statute. In order to reach the right answer, a judge need only acknowledge that there are principles inherent in the law and that one of them is the principle discussed in this article. Following this acknowledgment, the judge's answer will depend on her own definition of political morality. Dworkin's theory will allow judges who do believe that there is a common law right of action for wrongful death, to issue such decisions without feeling as though they are creating new law.

If enough judges utilize Dworkin's theory, and enough of them believe in the principle asserted in this article, perhaps Baker's curse will eventually be broken. Then, and only then, will wrongful death be taken seriously.

(1) See infra Parts I-II.

(2) See infra Part III.

(3) See infra Part IV.

(4) See infra Part V.

(5) See, e.g., Frank B. Cross, Identifying the Virtues of the Common Law, 15 Sup. Ct. Econ. Rev. 21 (2007) (discussing the possible economic impacts of the U.S. common law system).

(6) See Quiroz v. Seventh Ave. Ctr., 140 Cal. App. 4th 1256, 1263 (Cal. Ct. App. 2006) ("A cause of action for wrongful death exists only by virtue of legislative grace.").

(7) Baker v. Bolton, 170 Eng. Rep. 1033 (K.B.) (1808); 1 Camp. 493 (1808) (quoted in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 383 (1970)).

(8) See Wex S. Malone, The Genesis of Wrongful Death, 17 Stan. L. Rev. 1043, 1059-60 (1965); Moragne, 398 U.S. at 383-85.

(9) Malone, supra note 8, at 1058.

(10) Carey v. Berkshire R.R. Co., 55 Mass. 474-75 (1848), overruled by Gaudette v. Webb, 284 N.E.2d 222 (Mass. 1972).

(11) But see Gaudette, 284 N.E.2d at 229 (recognizing common law existence of wrongful death in Massachusetts); Rohlfing v. Moses Akiona, Ltd., 369 P.2d 96, 102 (Haw. 1961), overruled on other grounds by Greene v. Texeira, 505 P.2d 1169, 1172 (Haw. 1973). See also LaFage v. Jani, 766 A.2d 1066, 1077 (N.J. 2001). The LaFage decision, however, appeared to only allow the equitable tolling of the state's Wrongful Death Act. See infra note 12. Furthermore, some states have declared that their wrongful death statutes should be applied with "common law principles in mind" due to wrongful death's "common law origins." Negron v. Llarena, 716 A.2d 1158, 1167-68 (N.J. 1998) (Handler, J., concurring) (citing, inter alia, Hanebuth v. Bell Helicopter Int'l, 694 P.2d 143, 146 (Alaska 1984), Haakanson v. Wakefield Seafoods, Inc., 600 P.2d 1087, 1091-92 (Alaska 1979), Summerfield v. Superior Court, 698 P.2d 712, 718 (Ariz. 1985), and O'Grady v. Brown, 654 S.W.2d 904, 909 (Mo. 1983)).

(12) See Cole, Raywid & Braverman v. Quadrangle Dev. Corp., 444 A.2d 969, 971 (D.C. Ct. App. 1982); Bradberry v. Carrier Corp., 86 So.3d 973, 984-85 (Ala. 2011); In re Estate of Maldonado, 117 P.3d 720, 724 n.21 (Alaska 2005); Walsh v. Advanced Cardiac Specialists Chartered, 273 P.3d 645, 648-49 (Ariz. 2012); Estate of Hull v. Union Pac. R.R. Co., 141 S.W.3d 356, 358 (Ark. 2004); Adams v. Superior Court, 126 Cal. Rptr. 3d 186, 190 (Cal. Ct. App. 2011); Estate of Kronemeyer v. Meinig, 948 P.2d 119, 121 (Colo. App. 1997); Ecker v. Town of West Hartford, 530 A.2d 1056, 1062 (Conn. 1987); Luff v. Hawkins, 551 A.2d 437, 438 (Del. 1988); Fla. E. Coast Ry. Co. v. McRoberts, 149 So. 631, 632 (Fla. 1933); Tolbert v. Maner, 518 S.E.2d 423, 425 (Ga. 1999); Castorena v. Gen. Elec., 238 P.3d 209, 214 (Idaho 2010); Miller v. Am. Infertility Grp. of 111., S.C., 897 N.E.2d 837, 840 (111. Ct. App. 2008); Forte v. Connerwood Healthcare, Inc., 745 N.E.2d 796, 800 (Ind. 2001); Wardlow v. City of Keokuk, 190 N.W.2d 439, 442 (Iowa 1971); Shelton v. DeWitte, 26 P.3d 650, 657 (Kan. 2001) (Six, J., dissenting); Flowers v. Marshall, 494 P.2d 1184, 1188 (Kan. 1972); Smith's Adm'r v. Nat'l Coal & Iron Co., 117 S.W. 280, 281 (Ky. 1909); Braxton v. Georgia-Pacific Corp. 379 So.2d 1150, 1152 (La. Ct. App. 1980); Miller v. Szelenyi, 546 A.2d. 1013, 1020 (Maine 1988); Weimer v. Hetrick, 525 A.2d 643, 652 (Md. 1987); Jenkins v. Patel, 684 N.W.2d 346, 350 (Mich. 2004); Ortiz v. Gavenda, 590 N.W.2d 119, 121 (Minn. 1999); Smith v. Garrett, 287 So.2d 258, 260 (Miss. 1973); Sanders v. Ahmed, 364 S.W.3d 195, 203 (Mo. 2012) (en banc); Tarrant v. Helena Bldg. & Realty Co., 156 P.2d 168, 170 (Mont. 1944); Nelson v. Dolan, 434 N.W2d 25, 27 (Neb. 1989); Alsenz v. Clark Cnty. Sch. Dist., 864 P.2d 285, 286 (Nev. 1993) (per curiam); Trovato v. DeVeau, 736 A.2d 1212, 1214 (N.H. 1999); Johnson v. Dobrosky, 902 A.2d 238, 244 (N.J. 2006) (however, such a definitive statement that wrongful death is not a common law right of action is at odds with LaFage, 766 A.2d at 1077 (holding that New Jersey's wrongful death statute is a codification of the common law)); Chavez v. Regents of Univ. of N.M., 711 P.2d 883, 885 (N.M. 1985); Carrick v. Cent. Gen. Hosp., 414 N.E.2d 632, 636 n.2 (N.Y. 1980); DiDonato v. Wortman, 358 S.E.2d 489, 492 (N.C. 1987); Sheets v. Graco, Inc., 292 N.W.2d 63, 65 (N.D. 1980); Keaton v. Ribbeck, 391 N.E.2d 307, 309 (Ohio 1979) (per curiam); Pino v. United States, 183 P.3d 1001, 1005 (Okla. 2008); Hughes v. PeaceHealth, 178 P.3d 225, 233 (Or. 2008); Seymour v. Rossman, 297 A.2d 804, 808 (Pa. 1972); Short v. Flynn, 374 A.2d 787, 789 (R.I. 1977); Glenn v. E.I. DuPont De Nemours & Co., 174 S.E.2d 155, 157 (S.C. 1970); Peterson, ex rel. Peterson v. Bums, 635 N.W.2d 556, 571 (S.D. 2001); Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 596 (Tenn. 1999); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355-56 (Tex. 1990); Morrill v. J & M Const. Co., Inc., 635 P.2d 88, 89 (Utah 1981); Quesnel v. Town of Middlebury, 706 A.2d 436, 438 (Vt. 1997); Wilson v. Whittaker, 154 S.E.2d 124, 127 (Va. 1967); Tait v. Wahl, 987 P.2d 127, 130 (Wash. Ct. App. 1999); White v. Gosiene, 420 S.E.2d 567, 573 (W.Va. Sup. Ct. App. 1992); Bartholomew v. Wis. Patients Comp. Fund & Compcare Health Serv. Ins. Corp., 717 N.W.2d 216, 230 (Wis. 2006); In re Estate of Johnson, 231 P.3d 873, 878-79 (Wyo. 2010).

(13) See, e.g., Williams v. Davis, 974 So.2d 1052, 1056 (Fla. 2007) ("We examine the existence of a common law duty based upon principles of negligence set forth in our case law...."); Nelson v. Massachusetts Port Authority, 771 N.E.2d 209, 212 (Mass. Ct. App. 2002) (stating the definition and elements of negligence based on case law); Illinois Cent. R. Co. v. Behrens, 101 111. App. 33, 36 (111. Ct. App. 1901) ("Common law negligence, upon which an action for damages may be based, such as charged in the declaration in this case, is a failure of one to exercise what would be, under all the circumstances of the particular case, ordinary care in observing or performing a non-contractual duty, implied by the common law. This definition appears to us to meet all the requirements of the hundreds of cases of that character which have been before the courts of this State.").

(14) See supra note 7.

(15) See, e.g., Jeff Watters, Comment, Better to Kill than to Maim: The Current State of Medical Malpractice Wrongful Death Cases in Texas, 60 Baylor. L. Rev. 749 (2008) (detailing the historical development of wrongful death and legislative caps on medical wrongful death suits in Texas).

(16) Watts v. Lester E. Cox Med. Ctr., 376 S.W.3d 633 (Mo. 2012) (en banc); Sanders, 364 S.W.3d 195 (Mo. 2012) (en banc).

(17) Daniel J. Sheffner, Note, Fatal Medical Negligence and Missouri's Perverse Incentive, 7 St. Louis U. J. Health L. & Pol'y 147, 160, 163-64 (2013).

(18) See infra Part III.

(19) See supra note 11.

(20) See infra Part II.

(21) Id.

(22) Id.

(23) Contra Brian Leiter, The End of Empire: Dworkin and Jurisprudence in the 21st Century, 36 Rutgers L.J. 165, 181 (2004) (predicting that twenty-first-century legal philosophers "will make their mark, I predict, on a jurisprudential landscape in which the Dworkinian skyline is a fading image on the horizon. The field will be better for it.").

(24) Adam Liptak, Ronald Dworkin, Scholar of the Law, Is Dead at 81, NY Times (Feb. 14, 2013) (quoting Judge Guido Calabresi) (internal quotation marks omitted).

(25) Allan C. Hutchinson, Indiana Dworkin and Law's Empire, 96 Yale L.J. 637, 654-55 (1987) (quoted in Isaak I. Dore, The Epistemological Foundations of Law 554 (2007)); Reading Dworkin Critically 6 (Alan Hunt ed., 1992).

(26) See, e.g., Leiter, supra note 23, at 177 (admitting that Dworkin "is an extremely good writer: smooth, inviting, glib, a natural for The New York Review of Books."). For more celebratory adoration see Edward B. Foley, Interpretation and Philosophy: Dworkin's Constitution, 14 Const. Comment. 151, 151 (1997) (stating that Dworkin's "prose often sounds like poetry, having the natural rhythm of iambic verse.").

(27) See Ronald Dworkin, Law's Empire 249 (1986) [hereinafter Dworkin, Law's Empire],

(28) Ronald Dworkin, Hard Cases, 88 Harv. L. Rev. 1057, 1063 (1975) [hereinafter Dworkin, Hard Cases]-, see also Dworkin, Law's Empire, supra note 27, at 240-50; Dore, supra note 25, at 541-42.

(29) Dworkin, Law's Empire, supra note 27, at 14.

(30) See Dore, supra note 25, at 670.

(31) Ronald Dworkin, Justice for Hedgehogs 401 (2011) [hereinafter Dworkin, Justice for Hedgehogs],

(32) In his latest book, Justice for Hedgehogs, Dworkin discarded the "two-systems picture" of law and morality. Id. at 400-03. Whereas once he had believed that law and morality were two different systems, characterized by a degree of interconnectedness, in Justice for Hedgehogs, he concluded that that law is a "branch ... of political morality." Id. at 405.

(33) See Dore, supra note 25, at 547-48.

(34) See id.

(35) See generally Dworkin, Justice for Hedgehogs, supra note 31, at 401-02.

(36) See Dworkin, Law's Empire, supra note 27, at 46.

(37) See id. at 32-33. Dworkin wrote that semantic theories are those that "suppose that lawyers and judges use mainly the same criteria (although these are hidden and unrecognized) in deciding when propositions of law are true and false; they suppose that lawyers actually agree about the grounds of law." Id. at 33. Such theories emphasize the empirical nature of legal disagreements, instead of their theoretical bases. Id. at 31. Positivism is not the only semantic theory that Dworkin attacks in Law's Empire. Dworkin also criticizes natural law theory and legal realism. Dworkin discounts "the school of natural law" as unpersuasive because its proponents, in the extreme case, "insist]] that law and justice are identical, so that no unjust proposition of law can be true." Id. at 35. Dworkin appeared to disapprove of such a subjective theory of law; however, his conception of law as part of a greater system of morality, Dworkin, Justice for Hedgehogs, supra note 31, at 405, has led many commentators to label him a natural law theorist. See, e.g., David J. Perlman, Book Review, Law's Empire, 59 Temp. L. Q. 1335, 1336 (1986); Marianne Sadowski, "Language is not Life": The Chain Enterprise, Interpretive Communities, and the Dworkin/Fish Debate, 33 Conn. L. Rev. 1099, 1118 (2001); Steven Richman, Legal Philosophy: A Palimpsest, 205-OCT. N.J. Law. 10, 12 (2000); Dore, supra note 25, at 536. Legal realism, in Dworkin's estimation, was that school of thought whose proponents believed that the meaning of a legal proposition is wholly dependent on context. Dworkin, Law's Empire, supra note 27, at 36. The most extreme legal realists believed "there is no such thing as law, or that law is only a matter of what the judge had for breakfast." Id.

(38) Id. at 31.

(39) See Dworkin, Hard Cases, supra note 28, at 1082; Dore, supra note 25, at 542.

(40) H.L.A. Hart's positivism is not the only positivist theory critiqued in Law's Empire. Dworkin also attacks the theories of nineteenth-century English theorist John Austin. According to Dworkin, Austin posited "that a proposition of law is true within a particular political society if it correctly reports the past command of some person or group occupying the position of sovereign in that society." Dworkin, Law's Empire, supra note 27, at 33. Hart did not adhere to Austin's authoritative conception of legal authority, a conception that treated "legal authority as a brute fact of habitual command and obedience." Id. at 34. Although Dworkin implicitly points to Austin as the main early proponent of positivism (and perhaps that thinker was the most influential positivist theorist of the nineteenthcentury), positivism has its roots in the Renaissance, as embodied in the writings of Dante, Machiavelli, and other influential thinkers. Dore, supra note 25, at 442. Thomas Hobbes was also a major proponent of positivistic legal theory. Id.

(41) H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 594 (1958). Professor Hart acknowledged at least five definitions of positivism that are "bandied about in contemporary jurisprudence":

(1) the contention that laws are commands of human beings ...,

(2) the contention that there is no necessary connection between law and morals or law as it is and ought to be ...,

(3) the contention that the analysis (or study of the meaning) of legal concepts is (a) worth pursuing and (b) to be distinguished from historical inquiries into the causes or origins of law, from sociological inquiries into the relation of law and other social phenomena, and from the criticism or appraisal of law whether in terms of morals, social aims, "functions," or other wise ...,

(4) the contention that a legal system is a "closed logical system" in which correct legal decisions can be deduced by logical means from predetermined legal rules without reference to social aims, policies, moral standards ..., and

(5) the contention that moral judgments cannot be established or defended, as statements of facts cam, by rational argument, evidence, or proof....

Id. at 601 n.25.

(42) See Dore, supra note 25, at 441.

(43) Brian Leiter, Positivism, Formalism, Realism, 99 Colum. L. Rev. 1138, 1141-42 (1999) (Book Review, Anthony Sebok, Legal Positivism in American Jurisprudence (1998)).

(44) Id. at 1142.

(45) Hart, supra note 41, at 601 n.25.

(46) H.L.A. Hart, The Concept of Law (1961).

(47) Anthony J. Sebok, Judging the Fugitive Slave Acts, 100 Yale L. J. 1835, 1840-44 (1991).

(48) Scott J. Shapiro, What is the Rule of Recognition (and Does it Exist)?, Yale Law School, Public Law & Legal Theory Research Paper Series, Research Paper No. 181, at 3 (last revised Feb. 3, 2009).

(49) Dore, supra note 25, at 683; Dworkin, Justice for Hedgehogs, supra note 31, at 402.

(50) Dworkin, Law's Empire, supra note 27, at 116.

(51) Dore, supra note 25, at 541.

(52) See Sebok, supra note 47, at 1843.

(53) Dworkin, Law's Empire, supra note 27, at 249; Dore, supra note 25, at 547, 675 (writing that Dworkin believed that "there will always be a right answer in the seamless web of our law.") (internal quotation marks omitted).

(54) See infra Part II.B.

(55) See infra Part II.C.

(56) Moragne, 398 U.S. at 383 (stating that Lord Ellenborough, in Baker v. Bolton, "did not cite authority, or give supporting reasoning" for the rule that wrongful death is not a common law right of action).

(57) See, e.g., Dore, supra note 25, at 675 (mentioning the "right answer" thesis).

(58) Dworkin, Justice for Hedgehogs, supra note 31, at 402.

(59) See, e.g., Dore, supra note 25, at 541.

(60) Stephen R. Perry, Two Models of Legal Principles, 82 Iowa L. Rev. 787, 787-88 (1997).

(61) Id.

(62) Kenneth Einar Himma, The Nature of Law: Philosophical Issues in Conceptual Jurisprudence and Legal Theory 69 (Professor Review Copy) (2011).

(63) Ronald Dworkin, Taking Rights Seriously (1978) (excerpted in Dore, supra note 25, at 542) [hereinafter Dworkin, Taking Rights Seriously],

(64) Dore, supra note 25, at 541.

(65) Himma, supra note 62, at 69-70; Perry, supra note 60, at 788; see Dore, supra note 25, at 541.

(66) Daniel A. Farber, Courts, Statutes, and Public Policy: The Case of the Murderous Heir, 53 SMU L. Rev. 31, 38 (2000).

(67) Riggs v. Palmer, 22 N.E. 188, 190 (N.Y. 1889).

(68) See Farber, supra note 66, at 39.

(69) Riggs, 22 N.E. at 190.

(70) Dore, supra note 25, at 541.

(71) See Dworkin, Law's Empire, supra note 27, at 87. Dworkin defined the act of interpretation as that which "aims to make the object or practice being interpreted the best it can be." Id. at 77.

(72) Id. at 240-41.

(73) See, e.g., id. at 249-50.

(74) Professor Lawrence Solum contended that Dworkin's theory of interpretation consists of three stages, as exhibited in Dworkin's 1975 article "Hard Cases," Law's Empire, and his last book, Justice for Hedgehogs. Lawrence B. Solum, The Unity of Interpretation, 90 B.U. L. Rev. 551, 553 (2010). However, the evolution of a theory does not necessarily denote wholesale construction of a new one. For our purposes, Dworkin's general theory of interpretation appears to be relatively consistent. Also, it is possible that Justice for Hedgehogs was meant to merely supplement Dworkin's earlier works in some areas. See, e.g., Dworkin, Justice for Hedgehogs, supra note 31, at 400 n. 1.

(75) Dworkin, Law's Empire, supra note 27, at 65-66.

(76) Id. at 66.

(77) Id.

(78) Id.

(79) Dworkin's ideal judge was "a Herculean judge of superhuman talents and endless time." Id. at 245. He believed, however, that judges could "imitate" Judge Hercules, if only "in a limited way." Id.

(80) Dworkin, Law's Empire, supra note 27, at 240. Dworkin believed that: Hercules' answer will depend on his convictions about the two constituent virtues of political morality we have considered: justice and fairness. It will depend, that is, not only on his own beliefs about which of these principles is superior as a matter of abstract justice but also about which should be followed as a matter of political fairness, in a community whose members have the moral convictions his fellow citizens have. Id. at 249.

(81) Id. at 238-39.

(82) Id. at 225 ("The adjudicative principle of integrity instructs judges to identify legal rights and duties, so far as possible, on the assumption that they were all created by a single author - the community personified - expressing a coherent conception of justice and fairness.").

(83) Id. at 238-39.

(84) See generally id. at 239.

(85) Dworkin, Law's Empire, supra note 27, at 221. Dworkin wrote:

   Integrity does not require consistency in principle over all
   historical stages of a community's laws; it does not require that
   judges try to understand the law they enforce as continuous in
   principle with the abandoned law of a previous generation. It
   commands horizontal rather than vertical consistency of principle
   across the range of the legal standards the community now enforces.
   It insists that the law the rights and duties that flow from past
   collective decisions and for that reason license or require
   coercion - contains not only the narrow explicit content of these
   decisions but also, more broadly, the scheme of principles
   necessary to justify them.

See also Dworkin, Taking Rights Seriously, supra note 63 ("[I]nstitutional history acts not as a constrain on the political judgment of judges, but as an ingredient of that judgment, because institutional history is part of the background that any plausible judgment about the rights of an individual must accommodate. Political rights are creatures of both history and morality: what an individual is entitled to have, in civil society, depends upon both the practice and the justice of its political institutions.") Dworkin also believed:

   [I]ntegrity does not recommend what would be perverse, that we
   should all be governed by the same goals and strategies of policy
   on every occasion. It does not insist that a legislature that
   enacts one set of rules about compensation today, in order to make
   the community richer on the whole, is in any way committed to serve
   that same goal of policy tomorrow.

DWORKIN, LAW'S EMPIRE, supra note 27, at 243.

(86) See, e.g., id.

(87) See id. at 255-56.

(88) See infra Part III.

(89) See infra Part III.A.

(90) See infra Part III.B.

(91) Ronald Dworkin, The Model of Rules I (in Dworkin, Taking Rights Seriously, supra note 63) (excerpted in Dore, supra note 25, at 684)).

(92) See infra Part III.B.

(93) Such an application expands the Dworkinian notion of fit. See Dworkin, Law's Empire, supra note 27, at 255, to the nation writ large.

(94) See infra Part III. A.

(95) Malone, supra note 8, at 1058.

(96) See supra Part I (discussing the effect of the denial of a common law right of action for wrongful death on tolling provisions and limitations on damages in wrongful death suits).

(97) Baker, 1 Camp. 493 (quoted in Moragne, 398 U.S. at 383).

(98) Lord Campbell's Act, 1846, 9 & 10 Viet., c. 93 (quoted in Malone, supra note 8, at 1058) (internal quotations omitted).

(99) Malone, supra note 8, at 1055.

(100) See id. at 1057.

(101) Moragne, 398 U.S. at 382.

(102) Id.

(103) Malone, supra note 8, at 1055.

(104) Id.

(105) Moragne, 398 U.S. at 389 n.7 (discussing the process for a private criminal appeal in England).

(106) Malone, supra note 8, at 1056 (citing Higgins v. Butcher, 80 Eng. Rep. 61 (K.B. 1607)).

(107) Id. at 1054-55 (describing that in civil law jurisdictions such as Scotland and France, family members of victims of fatal negligence have always been able to recover damages).

(108) Carey v. Berkshire R. Co., 55 Mass. 475, 478 (1848), overruled by Gaudette v. Webb, 284 N.E.2d 222 (Mass. 1972).

(109) Carey, 55 Mass, at 478; see also Malone, supra note 8, at 1069-71 (discussing how Malone further explained that the existence of criminal statutes which provided damages to decedents' loved ones (due to certain instances such as death sustained on common carriers) as the impetus for the denial of the right to seek unlimited damages in a common law claim for wrongful death in Carey and subsequent American decisions.)); see also Malone, supra note 8, at 1070 (explaining that litigants would otherwise have been able to bypass the statutory cause of action).

(110) Carey, 55 Mass, at 478.

(111) Malone, supra note 8, at 1068.

(112) Id. at 1057 n.74.

(113) See Restatement (Second) of Torts [section] 925 cmt. a (1979) (explaining that after Baker, there were no common law causes of action for wrongful death); Moragne, 398 U.S. at 390 (detailing the universal enactment of wrongful death statutes by states).

(114) Moragne, 398 U.S. at 384-86.

(115) See infra Part III.B.2.

(116) Id.

(117) Id.

(118) Id.

(119) Malone, supra note 8, at 1065-66. Describing the development of the American legal system, Malone wrote: "Up until the beginning of the eighteenth century, when the trained lawyer and judge had become fairly familiar on the colonial scene, the American settlers pursued an ideal of rude natural justice, dispensed in large measure without rule by lay judges and with frequent resort to the scriptures." Id. at 1062-63.

(120) Id. at 1063-64.

(121) Id. at 1064.

(122) 2 Root 90, 91 (Conn. Super. Ct. 1794).

(123) Id. at 92.

(124) See supra Part II.A (discussing the early Anglo-Saxon antecedents of English common law and their lack of observance of anything akin to the felony-merger doctrine).

(125) Plummer v. Webb, 1 Ware 75 (D. Me. 1825).

(126) James v. Christy, 18 Mo. 162 (1853).

(127) Shields v. Yonge, 15 Ga. 349 (1854). In Shields v. Yonge, the Supreme Court of Georgia rejected Baker and allowed a father to recover for the loss of services stemming from the wrongful death of his sons. Malone, supra note 8, at 1073-74. Subsequent actions, however, denied similar common law rights to wives for the deaths of their husbands and limited such a right to mothers for the deaths of their children. Id.

(128) Ford v. Monroe, 20 Wend. 210 (N.Y. Sup. Ct. 1838).

(129) E.g., Ford v. Monroe was explicitly overruled in 1859. Green v. Hudson River R.R., 28 Barb. 9, 20 (NY Sup. Ct. Spec. T. 1859).

(130) Malone, supra note 8, at 1067.

(131) James, 18 Mo. at 164.

(132) State ex rel. Kansas City Stock Yards Co. of Maine v. Clark, 536 S.W.2d 142, 149-57 (Mo.) (en banc) (1976) (Bardgett, J., dissenting).

(133) Id. at 151.

(134) See supra Part II.C.

(135) See generally Moragne, 398 U.S. at 390-93.

(136) See infra Part III.B.2(a)-(d).

(137) Id.

(138) Moragne v. States Marine Lines, Inc., 398 U.S. 375, 383 (1970).

(139) Id. at 390-91.

(140) Gaudette, 284 N.E.2d 222 (Mass. 1972).

(141) See, e.g., id.

(142) Moragne, 398 U.S. at 375-76.

(143) Id. at 376.

(144) See The Harrisburg v. Rickards, 119 U.S. 199 (1886) (holding that there is no right to wrongful death in maritime law), overruled by Moragne, 398 U.S. at 403.

(145) Moragne, 398 U.S. at 381.

(146) Id.

(147) Id. at 383-84.

(148) Id. at 384-86.

(149) Id. at 386.

(150) Id. at 392.

(151) The Court cited a dissenting opinion written by Justice Oliver Wendell Holmes:

   Without going into the reasons for the notion that an action (other
   than an appeal) does not lie for causing the death of a human
   being, it is enough to say that they have disappeared. The policy
   that forbade such an action, if it was more profound than the
   absence of a remedy when a man's body was hanged and his goods
   confiscated for the felony, has been shown not to be the policy of
   present law by statutes of the United States and of most if not all
   of the states.

Panama R. Co. v. Rock, 266 U.S. 209, 215 (1924) (Holmes, J., dissenting) (quoted in Moragne, 398 U.S. at 391).

(152) E.g., Federal Employers' Liability Act, 45 U.S.C. [section][section] 51-59 (2006).

(153) See Moragne, 398 U.S. at 390-91 ("The policy thus established has become itself apart of our law, to be given its appropriate weight not only in matters of statutory construction but also in those of decisional law.").

(154) See id. at 381-84.

(155) Id. at 381.

(156) This is consistent with Justice Harlan's belief that "[i]t has always been the duty of the common-law court to perceive the impact of major legislative innovations and to interweave the new legislative policies with the inherited body of common-law principles many of them deriving from earlier legislative exertions." Id. at 392.

(157) See infra note 177, at 30.

(158) See infra Part III.B. 1(b).

(159) Guadette, 284 N.E. at 223.

(160) Dennis M. Doiron, ,4 Better Interpretation of the Wrongful Death Act, 43 Me. L. Rev. 449, 471 (1991).

(161) Gaudette, 284 N.E. at 229.

(162) The Moragne decision, so declared the Gaudette court, was based on the universal acceptance of a statutory right to (non-maritime) wrongful death, and so is "applicable with equal force to non-maritime actions for wrongful death." Id. As per the discussion in Part III.B.2(a), supra, Moragne does not necessarily indicate that wrongful death statutes create the common law wrongful death principle, but merely signify its existence. However, even if Justice Harlan did mean that the death acts created the principle, and even if Guadette acknowledges this as so, the reasoning of these cases does not mean that they cannot be utilized by a judge or attorney using Dworkin's theory of adjudication to prove the common law wrongful death principle. When a court acknowledges the existence of such a principle, it is enough to give persuasive force to an argument declaring that the said principle exists. When arguing for the viability of a principle, it may be sufficient to show that competent institutions agree with the conclusion, if not the reasoning. The historical creation of principles by way of continuous legislative enactment may not necessarily divorced from a belief in principles as set out by Dworkin.

(163) See Id. at 228 (quoting Moragne, 398 U.S. at 382).

(164) Id. at 229. The Supreme Court of New Jersey stated that "the practical effect of recognizing a common law wrongful death claim is that it provides an independent basis on which to allow equitable tolling of the Wrongful Death Act." Lafage, 766 A.2d at 1077. LaFage's explicit holding that wrongful death was recognized at common law, however, is contradicted by Johnson v. Dobrosky, where the court stated that "[a]t common law, a wrongful death action was not recognized." 902 A.2d at 244. The LaFage court relied on Moragne, Gaudette, and Salazar to a New Mexico court's decision declaring the common law existence of wrongful death in that state in its analysis. LaFage, 766 A.2d at 1077-79; Salazar v. St. Vincent Hospital, 619 P.2d 826 (N.M. Ct. App. 1980); but see Chavez, 711 P.2d at 885.

(165) See Gaudette, 284 N.E. at 229.

(166) Kake v. Horton, 2 Haw. 209, 212 (Haw. 1860).

(167) Id.

(168) Id.

(169) Id. at 209-12. The electronic version of the case further framed the court's decision in terms of morality and justice in the syllabus, which stated:

   WHERE the husband had come to his death by the wrongful act of the
   defendant, the Court was of opinion, that upon the construction to
   be given to certain provisions of the statutes of this Kingdom, and
   as consonant to natural law and reason, the widow could maintain an
   action on the case to recover consequential damages, resulting from
   his death.

Id. at 209.

(170) Id. at 212.

(171) See Hun v. Center Properties, 626 P.2d 182, 186 n.3 (Haw. 1981). The right seems to be upheld by current Hawaiian courts. See also Green v. Texeira, 505 P.2d 1169, 1175 (Haw. 1973).

(172) Restatement (Second) of Torts [section] 925 cmt. k (1979).

(173) 8 51 S.W.2d 510, 516 (Mo. 1993) (en banc).

(174) See supra Part III.B.2(a).

(175) Id.

(176) See Gaudette, 284 N.E. at 229.

(177) Restatement (Second) of Torts [section] 925 cmt. k (1979).

(178) See supra Part III.A.

(179) See supra Part III.B. 1.

(180) Id.

(181) See supra Part III.B.2(c).

(182) See supra Part III.B. 1.

(183) Id.

(184) See supra Part III.B.2(a).

(185) See supra Part III.B.2(b).

(186) See supra Part III.B.2(d).

(187) Dworkin, The Model of Rules I, (in Dworkin, Taking Rights Seriously, supra note 63) (excerpted in Dore, supra note 25, at 684-85)).

(188) Id. (excerpted in Dore, supra note 25, at 685).

(189) See infra Part IV.

(190) 787 S.W.2d 348 (Tex. 1990).

(191) See Dworkin, Law's Empire, supra note 27, at 240-50; Dore, supra note 25, at 541 42.

(192) See Dworkin, Law's Empire, supra note 27, at 249-50.

(193) See id. at 243.

(194) See id. at 255-56.

(195) See, e.g., Dworkin, Law's Empire, supra note 27, at 257.

(196) See id., at 239-40.

(197) Moreno, 787 S.W.2d at 349.

(198) Id. at 349-350.

(199) See id. at 350; Tex. Civ. Prac. & Rem. [section] 16.003(b)(1986).

(200) Id.; see Moreno, 787 S.W. 2d at 350.

(201) Moreno, 787 S.W.2d at 351 ("The discovery rule is a judicially constructed test which is used to determine when a plaintiff's cause of action accrued.... When applied, the rule operates to toll the running of the period of limitations until the time that the plaintiff discovers, or through the exercise of reasonable care and diligence should discover, the nature of his injury."); Weaver v. Witt, 561 S.W.2d 792, 794 (Tex. 1977).

(202) Id. at 350.

(203) Id. at 354-55.

(204) Id. at 355.

(205) Tex. Const. Art. I, [section] 13.

(206) Moreno, 787 S.W. 2d at 355.

(207) Id.

(208) Id. at 356.

(209) See id. at 358-67.

(210) Id. at 364 (Dogget, J., dissenting).

(211) Id. at 364-67.

(212) Moreno, 787 S.W.2d at 362-63 (Dogget, J., dissenting).

(213) Ford v. Monroe was mentioned in conjunction with James, Plummer v. Webb, and Shields v. Yonge in Part III.B.1, supra.

(214) Moreno, 787 S.W.2d at 364-65 (Dogget, J., dissenting).

(215) See id.

(216) See supra Part H.C.

(217) Moreno, 787 S.W.2d at 367 (Dogget, J., dissenting).

(218) Id. Justice Dogget also wrote:

   Tortfeasors take heart. Today this court grants one
   absolution--provided, of course, that one inflicts only mortal
   wounds. Treating our century-old statute of limitations for
   wrongful death like some Strasbourg goose, the court's opinion
   crams it full of fictional legislative intent, and then ties to it
   the baggage of ancient English common law which a number of
   American courts, including the United States Supreme Court, have
   rejected as totally lacking in logical or historical justification.

(219) See id. (Dogget, J., dissenting).

(220) See Dore, supra note 25, at 675.

(221) See id. at 678.

(222) See Dworkin, Law's Empire, supra note 27, at 239-40.

Daniel J. Sheffner, B.S., Truman State University; J.D., anticipated, Saint Louis University School of Law, May 2014. I owe a great deal of thanks to the editors and staff of the Faulkner Law Review for their hard work and patience, as well as to Professor Isaak I. Dore for his insight and inspiration.
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