Law Commons^™

Hand, Posner, And The Myth Of The "Hand Formula", In Symposium, Negligence In The Law, Richard W. Wright

Richard W. Wright

There is a striking incongruence between the discussions of negligence in the legal literature, including the American Law Institute's Restatement of Torts, and the understandings of ordinary people and the actual practice of the courts. The legal literature generally assumes that an aggregate-risk-utility test is employed to determine whether conduct was reasonable or negligent. This test was invented by legal academics and inserted in the first Restatement during the first part of the twentieth century, although, as recent studies all conclude, it had almost no support in the cases prior to its adoption in the Restatement and for several decades …

The Grounds And Extent Of Legal Responsibility, In Symposium, What Do Compensatory Damages Compensate?, Richard W. Wright

Richard W. Wright

This article identifies and discusses the three principal limitations on the extent of legal responsibility for tortiously caused harm and explains and justifies them by reference to the principle of interactive justice, which holds one legally responsible for causing (or being imminently about to cause) harm to another's person or property as a result of conduct that is inconsistent with others' right to equal freedom. The three principal limitations prevent liability for a tortiously caused harm when (1) the harm almost certainly would have occurred anyway in the absence of any tortious conduct or condition (the "no worse off" limitation), …

A New Approach To Tort Doctrine: Taking The Best From The Civil Law And Common Law Of Canada, Stephen D. Sugarman

Stephen D Sugarman

Canadian tort law follows the common law in most provinces, but the civil law in Quebec. The best of both systems could be drawn together for a better tort law for the 21st century, for both Canada and the United States.

"Suing For Lost Childhood", Elizabeth A. Wilson

Elizabeth A Wilson

No abstract provided.

Dispelling The Myths Of Asbestos Litigation: Solutions For Common Law Courts, Richard O. Faulk

Richard Faulk

After the Berlin wall fell in 1990, it appeared that the term "cold war" had outlived its usefulness. But thirteen years later, another "cold war" is being fought -- not between apprehensive armies in Berlin, but in our nation's courts as they struggle to resolve hundreds of thousands of asbestos claims filed against American industry. Like the first "cold war," the present one involves a great deal of action that takes place below the "radar screen." Thousands of cases are filed annually, lawyers line up on both sides and spend billions prosecuting and defending them. Then for various reasons, including …

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. …

The State’S Perpetual Protection Of Adultery: Examining Koestler V. Pollard And Wisconsin’S Faded Adultery Torts, Nehal A. Patel

Nehal A. Patel

No abstract provided.

Tort, Compensation, And Two Kinds Of Justice, John G. Culhane

John G. Culhane

Following the horrific terrorist attacks of September 11, 2001, Congress moved swiftly to pass legislation that both protected potential tort defendants against crushing liability and created a fund to compensate those killed or injured by the terrorists. Although the Victim Compensation Fund does not provide the full recovery that a plaintiff might gain through a tort suit, it nonetheless reflects a tort law bent by allowing recovery of full economic loss.

This Article argues that the Fund confuses two kinds of justice. Corrective justice (herein, tort law) is concerned with repairing an inequality between parties that wrongful conduct has created. …

Contributory Or Comparative: Which Is The Optimal Negligence Rule?, Christopher J. Robinette, Paul G. Sherland

Christopher J Robinette

Indeterminate Causation And Apportionment Of Damages, Alex Stein, Ariel Porat

Alex Stein

This Article analyzes the problem of indeterminate causation in torts and develops a system of compensating plaintiffs that responds to both optimal deterrence and corrective justice criteria. Under this system, the plaintiff’s award should equal her harm multiplied by the ex post probability of causation. Any other system, including that of recovery for lost chances that many courts have adopted, would either under-compensate or over-compensate the plaintiff. The Article’s approach is presently recommended by the Third Restatement of Torts.

This Article derives from the general theory developed in my book with Ariel Porat, Tort Liability under Uncertainty (Oxford University Press, …

Shedding Light On The Preemption Doctrine In Product Liability Actions: Defining The Scope Of Buckman And Sprietsma, Jean M. Eggen

Jean M. Eggen

No abstract provided.