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Innocent Threats, Concealed Consent, And The Necessary Presence Of Strict Liability In Traditional Fault-Based Tort Law , Marin Roger Scordato
Innocent Threats, Concealed Consent, And The Necessary Presence Of Strict Liability In Traditional Fault-Based Tort Law , Marin Roger Scordato
Pepperdine Law Review
This article identifies and carefully analyzes the use in tort law of what is termed unilateral and bilateral legal analysis. Unilateral, or one-party, analysis involves the design of legal doctrine that is focused on the characteristics or status of a single legal person. It is traditionally associated with criminal law, where the doctrinal attention is tightly focused on the criminal defendant. Inquiry may be made regarding the nature and degree of harm suffered by the victim, or whether the victim agreed to the harm producing act, but these considerations are generally relevant only to the degree that they shed light …
The Distorted Reality Of Civil Recourse Theory , Alan Calnan
The Distorted Reality Of Civil Recourse Theory , Alan Calnan
Cleveland State Law Review
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 …