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Full-Text Articles in Law
The Distorted Reality Of Civil Recourse Theory, Alan Calnan
The Distorted Reality Of Civil Recourse Theory, Alan Calnan
Alan Calnan
In their recent article Torts as Wrongs, Professors John C.P. Goldberg and Benjamin C. Zipursky offer their most complete and accessible explanation of the civil recourse theory (CRT) of tort law. A purely descriptive account, CRT holds that tort law is exclusively a scheme of private rights for the redress of legal wrongs and is not a pragmatic mechanism for imposing strict liability or implementing public policy. The present paper challenges this view by revealing critical errors in its perspective, methodology, and analysis. It shows that Goldberg and Zipursky do not objectively observe tort law and uncritically report what they …
What's Wrong With "Torts As Wrongs" (Or Redirecting Civil Recourse Theory), Alan Calnan
What's Wrong With "Torts As Wrongs" (Or Redirecting Civil Recourse Theory), Alan Calnan
Alan Calnan
In Torts as Wrongs, Professors John C.P. Goldberg and Benjamin C. Zipursky offer their most complete and accessible explanation of the civil recourse theory of tort law. A purely descriptive account, civil recourse theory has both positive and negative components. The positive side holds that tort law is a scheme of private rights for the redress of legal wrongs, while the negative side says the law eschews strict liability and forbids instrumentalism. The present paper challenges both prongs of this theory, identifying three problems which undermine its credibility. First, Goldberg and Zipursky do not objectively observe tort law and uncritically …
Strict Liability And The Liberal-Justice Theory Of Torts, Alan Calnan
Strict Liability And The Liberal-Justice Theory Of Torts, Alan Calnan
Alan Calnan
Abstract Tort scholars disagree about the relative priority of fault and strict liability. Economists prefer the clearer and more efficient theory of strict liability to the vaguer and more complicated concept of fault. Moralists, by contrast, prefer the deep moral or deontological idea of fault to the more sterile rule of strict liability. Ironically, both economists and moralists often base their views on liberal principles. Economists rely on the political dimension of liberalism, arguing that tort law should interfere with free market transactions only rarely, and even then, only with clear rules that minimize accident costs. Not surprisingly, moralists rely …
A Consumer-Use Approach To Products Liability, Alan Calnan
A Consumer-Use Approach To Products Liability, Alan Calnan
Alan Calnan
In dicta, courts have had no trouble identifying unreasonable product uses. Indeed, over the years, they have compiled an extensive list of examples. That list includes the following pearls of wisdom. An automobile should not be used as a bulldozer. A shovel should not be used as a doorstop. A hunting and fishing knife should not be used to shave. A knife should not be used as a toothpick. An electric drill should not be used to clean teeth. A power saw should not be used to clip fingernails. A motorized hedge clipper should not be used to trim beards. …