Law Commons^™

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

All Faculty Scholarship

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

All Faculty Scholarship

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), …

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), …

Beyond Words: An Empirical Study Of Context In Contract Creation, Deborah A. Schmedemann

South Carolina Law Review

No abstract provided.

Mass Toxic Tort Litigation And Class Action Rule Reform In The United States, Jason L. Betts

ExpressO

The paper advances the proposition that mass toxic tort litigation has been the predominant driver of class action rule reform in the Unites States. Through three distinct phases of proposals to reform Rule 23 of the Federal Rules of Civil Procedure, the judicial and academic attitude to the certification of mass toxic torts has influenced the reform debate in radically different ways – initially by providing the catalyst for efforts to reform Rule 23; then as a dampener against significant reforms to Rule 23 in the wake of mass toxic tort “settlement-only” classes; and ultimately as an explanation for the …

A Family Affair: Sharing Information About Genetic Diseases, Lyria K. Bennett Moses

ExpressO

Genetic test results provide information relevant to the future health of the person tested as well as parents, siblings, children and more distant relatives. This Article examines the legal consequences that might follow a decision to share or withhold genetic information. It argues that the obstacles to liability might not be justified in situations where either disclosure of genetic information or silence will cause significant harm.

Legal Protection For Conversational And Communication Privacy In Family, Marriage And Domestic Disputes: An Examination Federal And State Wiretap And Stored Communications Acts And The Common Law Privacy Intrusion Tort, Richard C. Turkington

Working Paper Series

In the article I examine the legality of the not uncommon practice of surreptitiously recording telephone conversations, videotaping activities and accessing e-mail or voicemail communications by parties in domestic disputes. First, I examine the important values that are implicated by such activities. These values include conversation, communication and physical privacy. Conversation (and communication) privacy are valued on both intrinsic and instrumentalist grounds. These values run into countervailing values in domestic conflict cases. These include parental autonomy in child rearing and the best interests of the child. I argue that the pervasiveness of electronic surveillance and the emerging tradition in our …

Real Options In Law: (Possibly, Frivolous) Litigation And Other Applications, Peter H. Huang

ExpressO

This Article advances the thesis that real options are not only ubiquitous in law, but also provide novel insights about legal decision making, doctrines and rules. An introduction provides a brief a primer about financial options, real options, and real options in law. Part I of this Article develops implications of the fact that every lawsuit contains a sequence of real options for the plaintiff to unilaterally abandon that lawsuit. Part II of this Article appraises the limitations of game-theoretic analysis of the abandonment options embedded in litigation and some responses to such limitations. Part III of this Article illustrates …

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.

Pain-And-Suffering Damages In Tort Law: Revisiting The Theoretical Framework And The Empirical Evidence, Ronen Avraham

Law & Economics Working Papers Archive: 2003-2009

Should there be pain-and-suffering damages in tort law? Most legal economists who wrote on the subject that there should not be pain-and-suffering damages in tort law. A minority of scholars thought the decision of whether tort law should provide pain-and-suffering damages is an empirical, or an experimental, question that cannot be armchair-theorized. Yet, all scholars who have done empirical or experimental work to explore the desirability of pain-and-suffering damages reached the conclusion that it is undesirable. In this paper I argue that the majority view cannot serve as a policy-making aid. I side with the minority of scholars who argue …

"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.

Proximate Cause And The American Law Institute: The False Choice Between The "Direct-Consequences" Test And The "Risk Standard", Michael L. Wells

University of Richmond Law Review

No abstract provided.

Returning To The Roots Of The Bramble Bush: The "But For" Test Regains Primacy In Casual Analysis In The American Law Institute's Proposed Restatement (Third) Of Torts, John D. Rue

Fordham Law Review

No abstract provided.

The Supreme Court, The Gun Industry, And The Misguided Revival Of Strict Territorial Limits On The Reach Of State Law, Allen K. Rostron

Faculty Works

While tort lawsuits against gun manufacturers and sellers have captured much attention in recent years, there is an intriguing constitutional issue arising in the cases that has largely escaped notice. The gun companies build a defense from statements in a line of recent Supreme Court opinions indicating that the dormant Commerce Clause forbids application of a state statute to commerce occurring wholly outside the state's borders. The gun companies contend that it would be unconstitutional for them to be held liable under state tort law for the manufacture or sale of a gun that occurred outside the state. Several courts …

Before And After: Temporal Anomalies In Legal Doctrine, Leo Katz

All Faculty Scholarship

Legal doctrine exhibits some striking temporal anomalies, previously not much adverted to. Wrongdoing looked at before it has occurred, and after is has occurred, is apt to look very different. I take up the two key components of wrongdoing seriatim, the harm-portion and the misconduct-portion: the "damage" part and the "liability" part. We tend to look at harm in a harm-agnifying way before it has occurred, and in a harm-inimizing way afterwards. We thus tend to think about negligence and the harm it wreaks in seemingly inconsistent ways. I examine and reject some possible explanations of this. Misconduct too looks …

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, …