Law Commons^™

Tort Arbitrage, Robert J. Rhee

UF Law Faculty Publications

The economic models of bargaining and tort law have not been integrated into a coherent theory that reflects the empirical world. This Article models the interaction of settlement dynamics and the theory of negligence. It shows that tort claims are systematically devalued during settlement relative to the legal standard. Central to this thesis is a proper conception and accounting of cost. Cost is typically viewed as the transaction cost of litigation processing. Cost, however, encompasses more than this. Each dispute has a cost of resolution, defined as the discounting effect of risk on legal valuation. A spread between the parties' …

A Watershed Moment: Reversals Of Tort Theory In The Nineteenth Century, Jed Handelsman Shugerman

Faculty Scholarship

This article offers a new assessment of the stages in the development of fault and strict liability and their justifications in American history. Building from the evidence that a wide majority of state courts adopted Fletcher v. Rylands and strict liability for unnatural or hazardous activities in the late nineteenth century, a watershed moment turns to the surprising reversals in tort ideology in the wake of flooding disasters.

An established view of American tort law is that the fault rule supposedly prevailed over strict liability in the nineteenth century, with some arguing that it was based on instrumental arguments to …

The Growing Influence Of Tort And Property Law On Natural Resources Law: Case Studies Of Coal Bed Methane Development And Geologic Carbon Sequestration, Alexandra B. Klass

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

19 pages.

"Alexandra B. Klass, Associate Professor of Law, University of Minnesota Law School"

Optimal Tax Compliance And Penalties When The Law Is Uncertain, Kyle D. Logue

Articles

This article examines the optimal level of tax compliance and the optimal penalty for noncompliance in circumstances in which the substance of the tax law is uncertain - that is, when the precise application of the Internal Revenue Code to a particular situation is not clear. In such situations, a number of interesting questions arise. This article will consider two of them. First, as a normative matter, how certain should taxpayers be before they rely on a particular interpretation of a substantively uncertain tax rule? If a particular position is not clearly prohibited but neither is it clearly allowed, what …

The Price-Anderson Public Liability Action And Strict Liability, Donald E. Jose, Michael A. Garza

ExpressO

Nuclear Power and nuclear weapons plants seem to be an ultrahazardous activity for which strict liability should apply. However, unusual provisions of the Price-Anderson Act serve to shield nuclear power and nuclear weapons plants and associated activities from strict liability unless the federaq agency regulating the activity determins that a special from of strict liability can be applied.

Who Knew? Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Mark G. Boyko, Ryan G. Vacca

Law Faculty Scholarship

Federal Rule of Evidence 407 prohibits the introduction of subsequent remedial measures for the purposes of demonstrating negligence, culpable conduct, or product defect. But the rule breaks down, in application and purpose, when a defendant undertakes the new safety measure after the plaintiff's injury, but before the defendant had knowledge of the loss. Such a situation is not uncommon. Would-be defendants frequently improve their products and product safety for a variety of reasons. Toxic exposure cases, where exposure often predates diagnosis of the injury by a decade or more, represent a prime example of cases where defendants are likely to …

Duty In Tort Law: An Economic Approach, Keith N. Hylton

Faculty Scholarship

Theories of tort law have focused on the breach and causation components of negligence, saying little if anything about duty. This paper provides a positive economic theory of duty doctrine. The theory that best explains duty doctrines in tort law is the same as the theory that explains strict liability doctrine. The core function of both sets of doctrines is to regulate the frequency or scale of activities that have substantial external effects. Strict liability aims to suppress or tax activities that carry unusually large external costs. Duty doctrines, especially those relieving actors of a duty of care, serve several …

Strict Liability And The Liberal Justice Theory Of Torts, Alan Calnan

ExpressO

Ask a group of tort scholars to explain the relationship between fault and strict liability and the responses are likely to be sharply split. An economist might reply that strict liability—assigned on the basis of efficiency—should be the rule and fault, if it is to apply at all, but a reluctant and occasional exception. A moralist, however, would likely give the opposite opinion—that fault, defined as deontological culpability, should be the rule and strict liability the exception.

Ironically, both economists and moralists often base their views on liberal principles. Economists rely on the political dimension of liberalism, arguing that government …

Americans Abroad: International Educational Programs And Tort Liability, Vincent R. Johnson

Faculty Articles

In recent decades, the number of foreign programs operated by American colleges and universities has greatly expanded. Until recently, there were few reported cases involving claims arising from foreign educational ventures. However, the increase in international study abroad programs has been paralleled by an increase in tort claims. Additionally, because of the tendency of tort cases to be settled, the number of unreported cases, based on harm to students participating in study abroad programs, may be considerably larger than what appears in legal research databases.

Given the high cost of potential litigation, a program provider has no choice but to …

There Are No Bad Dogs, Only Bad Owners: Replacing Strict Liability With A Negligence Standard In Dog Bite Cases, Lynn A. Epstein

Animal Law Review

Should the law treat dogs as vicious animals or loving family companions? This article analyzes common law strict liability as applied to dog bite cases and the shift to modern strict liability statutes, focusing on the defense of provocation. It discusses the inconsistency in the modern law treatment of strict liability in dog bite cases. The article then resolves why negligence is the proper cause of action in dog bite cases. The Author draws comparisons among dog owner liability in dog bite cases, parental liability for a child’s torts, and property owner liability for injuries caused by his property. The …

Public Tort Litigation: Public Benefit Or Public Nuisance?, Richard C. Ausness

Law Faculty Scholarly Articles

One of the latest developments in products liability law is "public tort" litigation. Public tort or government-sponsored lawsuits are actions by federal, state, or local government entities to recover the cost of public services provided to persons who have been injured as the result of a defendant's alleged misconduct. The best known example is the tobacco litigation of the mid-1990s in which more than forty states brought suit against the leading tobacco companies to recoup the cost of providing health care services to indigent smokers. Eventually, the tobacco companies agreed to pay the states more than $200 billion and also …

Manufacturing Defects, David G. Owen

Faculty Publications

No abstract provided.

Reverberations From The Collision Of Tort And Warranty (Products Liability Law Symposium In Memory Of Professor Gary T. Schwartz), James J. White

Articles

In his famous Stanford Law Review article, When Worlds Collide,' Professor Marc Franklin foretold the troubles for American law in the impending collision of the tort of strict liability with the warranty of merchantability.2 We daily suffer the reverberations from that collision as courts struggle with the proper application of strict tort liability and breach of warranty in products liability cases. Lawyers who have not studied Article 2 of the Uniform Commercial Code (U.C.C.) are surprised to learn that virtually every buyer who has a strict tort claim for an injury caused by a defective product also has a potential …

The Fault Of Not Knowing, George P. Fletcher

Faculty Scholarship

Despite the outpouring of interest in tort and criminal theory over the last thirty years, not much progress has been made toward understanding the basic concepts for analyzing liability. Common law theorists of torts and criminal law tend to accept the conventional distinction between objective and subjective standards and the view that objective negligence is not really fault in the way that subjective negligence is. The author's view is that this distinction between objective and subjective standards is misunderstood and that, in fact, so-called objective negligence is a test of fault or culpability in the same way that subjective standards …

Seller Beware: Tort Reform Is Missing In Action; Soproni, Falk, And The Entrenchment Of Strict Products Liability In Washington, Kenneth M. Roessler

Seattle University Law Review

This article evaluates Washington’s products liability laws and their application in ways involving strict liability through the lens of Soproni v. Polygon Apartment Partners. Part I will also closely examine the WPLA, beginning with a discussion of the tort reform context in which it was enacted and the underlying economic reasons for its passage in 1981. This section will discuss how the WPLA ostensibly supplanted Washington common law on product liability, as well as what a careful reading of the statute seems to dictate for litigating product liability claims. The article then examines how the Soproni majority construed the …

The Floodgates Of Strict Liability: Bursting Reservoirs And The Adoption Of Fletcher V. Rylands In The Guided Age, Jed Handelsman Shugerman

Faculty Scholarship

Part I presents an overview of Rylands v. Fletcher and then discusses the phases of the American response: the initial acceptance; the Northeastern rejections in the 1870s, which have been the basis for the erroneous scholarly conclusions; and the overlooked tide of acceptances across the country, beginning in the late 1880s and increasing in the 1890s. Part II places this wave of acceptance in its historical context of changing social forces, although these brief sketches are not the primary emphasis of this Note. First, during a period of rapid urbanization, a small number of courts sought to protect residential areas …

Products Liability: User Misconduct Defenses, David G. Owen

Faculty Publications

No abstract provided.

The Impact Of "Exceptional" Statutes On Civil Litigation In Minnesota, Michael K. Steenson

Faculty Scholarship

This article examines the treatment of “exceptional” statutes--statutes intended to protect a specific class of persons against their own inability to protect themselves--by the Minnesota appellate courts. After an analysis of the origins of the negligence per se doctrine in Minnesota, the article briefly examines the relationship between negligence per se and common law negligence. Then, following a brief historical background discussion of earlier cases involving exceptional statutes, the article focuses on individual cases in which the exceptional statutes are implicated. The goal of the article is to determine whether the law the supreme court developed has been consistently adhered …

You Can Teach An Old Dog New Tricks: The Application Of Common Law In Present-Day Environmental Disputes, Joseph F. Falcone Iii, Daniel Utain

Villanova Environmental Law Journal

No abstract provided.

When Warnings Alone Won’T Do: A Reply To Professor Phillips, Richard C. Ausness

Law Faculty Scholarly Articles

In his paper, Professor Phillips contends that questions about the adequacy of a product's design should be resolved by the use of a risk-utility test and that the existence of an adequate warning should merely be one factor for the jury to take into account. This is essentially the position espoused by the Restatement (Third) of Torts: Products Liability (hereinafter Third Restatement), section 2, comment l. On the other hand, Professor PhiIlips is very critical of subsections 6(c) and 6(d). These provisions establish liability for the sellers of prescription drugs and medical devices. Section 6(c), which is concerned …

O.K. Corral Ii: Policy Issues In Municipal Suits Against Gun Manufacturers, Frank J. Vandall

Villanova Law Review

No abstract provided.

The Restatement Third, Torts: Products Liability: Progress Or A Radical Departure For West Virginia, J. Zachary Zatezalo

West Virginia Law Review

No abstract provided.

Replacing Strict Liability With A Contract-Based Products Liability Regime, Richard C. Ausness

Law Faculty Scholarly Articles

When strict products liability first appeared on the scene some thirty-five years ago, it was heralded as a boon to consumers whose claims to compensation had hitherto been frustrated by the law of sales. Warranty law, it was said, worked fairly well in purely "commercial" transactions, but tort law did a better job in cases where ordinary consumers suffered personal injuries or property damage from defective products. To be sure, defenders of warranty law pointed out that the newly-drafted Uniform Commercial Code (the "Code" or "U.C.C.") was much more consumer friendly than the old Uniform Sales Act. Nevertheless, the proponents …

Products Liability Law Restated, David G. Owen

Faculty Publications

No abstract provided.

Restating The Law: The Dilemmas Of Products Liability, Robert L. Rabin

University of Michigan Journal of Law Reform

Tracing products liability law from its origins to present day developments, Professor Rabin discusses the long-standing presence of interwoven strands of contract and tort ideology, as well as the perennial tensions between strict liability and negligence. These themes are evident both in the distinctly influential California case law and in the two Restatement efforts to systematize the doctrine that has emerged nationally. Rabin identifies the manner in which foundational ideological precepts of consumer expectations and enterprise liability have contributed to a continuously dynamic, if often unsettled, debate over the appropriate regime for resolving product injury claims.

Constructing A Roof Before The Foundation Is Prepared: The Restatement (Third) Of Torts: Products Liability, Section 2(B) Design Defect, Frank J. Vandall

University of Michigan Journal of Law Reform

The Restatement (Third) of Torts: Products Liability section 2(b) is a wish list from manufacturing America. It returns products liability law to something more restrictive than negligence. What is new from the Reporters is that their proposal is written on a clean sheet of paper. Messy and awkward concepts such as precedent, policy, and case accuracy have been brushed aside for the purpose of tort reform. There has been almost no attempt to evaluate strict liability precedent or the policies underlying previous cases and the Restatement (Second) section 402A. Section 2b (the roof) has been drafted with little consideration of …

Product Category Liability: A Critical Analysis, Richard C. Ausness

Law Faculty Scholarly Articles

Professor Wertheimer has proposed that courts be allowed to hold producers strictly liable for product-related injuries, even though their products are not otherwise defective, as long as the overall risks associated with such products outweigh their benefits. However, this would subject the sellers of inherently dangerous products, such as cigarettes, to potentially devastating liability since their products cannot be made less dangerous. There are better ways to control the consumption of hazardous products if society wishes to do so.

Part I of this article discusses the scope and purpose of the defect requirement in section 402A and in the proposed …

Reconceptualizing Strict Liability In Tort: An Overview, Martin A. Kotler

Vanderbilt Law Review

In a series of books and articles, Professor Marshall Shapo has developed the idea of American tort law as a "cultural mirror"--a legal system reflecting cultural norms that serves as the "intellectual and practical foundation for society's response to injuries." The "cultural mirror" metaphor captures both the notion that there is a substantive normative basis for tort law that exists within society and the procedural notion that tort law ensures that those underlying norms are reflected in the resolution of tort disputes.

Although I believe Professor Shapo's description to be fundamentally correct, it is also incomplete, and, as a result, …

Products Liability: Terrorist Bombs And Strict Liability--A Volatile Formula For Fertilizer Makers?, Walter D. Miller

Oklahoma Law Review

No abstract provided.

Restating Strict Liability And Nuisance, Robert E. Keeton

Vanderbilt Law Review

John Wade was a master of the craft of restating the law. The American Law Institute ("ALI") benefitted especially from his distinctive service during development of the Restatement (Second) of Torts. It is fitting that we use, as a vehicle for honoring his service, an inquiry into a segment of tort law that was first considered in the decades just after the Institute was founded and remains, even today, among the most difficult areas of law to restate. This segment of tort law concerns the general theory of strict liability and the extent that it applies to nuisance cases.

To …