Law Commons^™

The Passing Of Palsgraf?, Ernest J. Weinrib

Vanderbilt Law Review

According to a well-known story, Cardozo's Palsgraf opinion' was born in his attendance at the discussion of the Restatement (First) of Torts. If the formulations now proposed for the Restatement (Third) of Torts (proposed "Restatement") stand, the Palsgraf case--indeed the whole notion of duty as a viable element of negli- gence analysis-- will effectively be dead. The proposed Restatement suggests that "duty is a non-issue" confined to unusual cases where "special problems of principle or policy... justify the withholding of liability." Duty has then merely a negative significance. It refers not to an element necessary to establish the defendant's liability, …

The Theory Of Tort Doctrine And The Restatement (Third) Of Torts, Keith N. Hylton

Vanderbilt Law Review

Though at times a source of controversy, the American Law Institute performs an enormous public service through its Restatement projects. One of the initial hurdles any such project confronts is whether it should aim to clarify and illuminate the law, or to push the law in a certain direction. I think the Restatement project is most productive when it aims to clarify and illuminate rather than guide or control the development of legal doctrine. Efforts to guide and control risk producing questionable interpretations of the aw, undermining the value of the Restatement in the long run. Fortunately, the Restatement of …

Legal Cause: Cause-In-Fact And The Scope Of Liability For Consequences, Jane Stapleton

Vanderbilt Law Review

The project to restate the law of torts offers a number of opportunities.' One is law reform, as the last two Restatements concerning products liability illustrate. Another is to reflect on doctrinal history, both in the case law and in the academy. Yet an- other, and the one I focus on, is the opportunity to clarify legal concepts, if necessary by reformulation and restructuring, in order to assist courts to manage new challenges that have emerged since the last Restatement. Few areas in the law of tort are in more need of this re-evaluation than the area covered by the …

Introduction: The Third Restatement Of Torts: General Principles And The John W. Wade Conference, John C.P. Goldberg

Vanderbilt Law Review

The American Law Institute ("ALT") is in the midst of constructing the Restatement (Third) of Torts. Two parts of the project have already been completed and published as, respectively, the Restatement (Third): Products Liability and the Restatement (Third): Apportionment of Liability. The next component, a Restatement of the "General Principles" of tort, is underway. The goal for this facet of the overall project is to provide a coherent and usable account of fundamental tort concepts including intent, negligence, duty, actual and proximate cause, abnormally dangerous activity, and the like.

Transmissions Of Music On The Internet, Daniel J. Gervais

Vanderbilt Journal of Transnational Law

This Article examines the status of copyright laws in several countries as they pertain to transmissions of music on the Internet. Because the exact legal ramifications of music transmissions over the Internet are currently unclear, the Author compares copyright laws of six major markets and examines the potential application of the copyright laws and other rights that may apply. The Article also discusses rules concerning which transborder transmissions are likely to be covered by a country's national laws, as well as specific rules applying to the liability of intermediaries. Next, the Article summarizes the comparative findings and discusses the relevant …

Why Traditional Insurance Policies Are Not Enough: The Nature Of Potential E-Commerce Losses & Liabilities, Anna Lee

Vanderbilt Journal of Entertainment & Technology Law

There are two general categories of insurance policies: first-party policies and third-party/liability policies. First-party polices provide benefits directly to policyholders for losses suffered by the policyholders. For example, fire damage to the policyholder's plant or financial loss resulting from the interruption of the policyholder's business would be covered under the first-party insurance. Generally, these first-party losses are covered under policies such as "all risk," "named peril," "business interruption," or "expense to reduce loss" coverages. Among these various types of first-party policies, "all risk" insurance policies provide the broadest coverages.

Third-party or liability policies provide protection for claims against the policyholder …

Jurors, Judges, And The Mistreatment Of Risk By The Courts, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

A sample of almost 500 jury-eligible citizens considered a series of experimental situations involving accidents. The juror sample did not properly apply negligence rules, as their errors were particularly great for low-probability, large-loss cases. They also penalized corporations for undertaking corporate risk analyses that seek to trade off cost versus risk reduction benefits. Jurors' damages assessments were also more prone to error than were responses by a sample of state judges. Judges were less prone to erroneous risk beliefs and less subject to the zero-risk mentality.