Law Commons^™

Legal Pluralism In Tort Law Theory: Balancing Instrumental Theories And Corrective Justice, Benjamin Shmueli

University of Michigan Journal of Law Reform

Unified-monistic theories of tort law focus on a single goal, usually corrective justice, distributive justice, or optimal deterrence. Unlike these approaches, mixedpluralistic theories attempt to balance between various goals of tort law by integrating several of the considerations underlying these different goals. These theories of legal pluralism reflect ideological diversity, in this case between different theories of the same legal system. This Article discusses the challenge of legal pluralism to settle the possible collision between different goals of tort law within the framework of tort law theory. Starting from a position of support for the mixed-pluralistic thesis, this Article first …

Playing Doctor: Corporate Medical Practice And Medical Malpractice, E. Haavi Morreim

University of Michigan Journal of Law Reform

Although health plans once existed mainly to ensure that patients could pay for care, in recent years managed care organizations (MCOs) have attempted to limit expenditures by exercising significant influence over the kinds and levels of care provided. Some commentators argue that such influence constitutes the practice of medicine, and should subject MCOs to the same medical malpractice torts traditionally brought against physicians. Others hold that MCOs engage only in contract interpretation, and do not literally practice medicine.

This Article begins by arguing that traditional common law doctrines governing corporate practice of medicine do not precisely apply to the current …

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.

Regulatory Standards And Products Liability: Striking The Right Balance Between The Two, Teresa Moran Schwartz

University of Michigan Journal of Law Reform

Common law courts have a long tradition of borrowing legislative and regulatory standards to define standards of care under the tort system. Treating such standards as setting minimum levels of care and safety under tort law, the courts uniformly have ruled that violations of standards constitute negligence per se, while compliance is merely evidence of negligence. Although critics of the tort system have urged legislatures and courts to adopt rules giving greater weight to regulatory compliance in products liability cases, the drafters of the Restatement (Third) of Torts: Products Liability have declined to do so. They have adopted instead an …

Comparative Negligence Under The Code: Protecting Negligent Banks Against Negligent Customers, Julianna J. Zekan

University of Michigan Journal of Law Reform

This Article will examine modern banking practices with respect to processing checks and the effect of technology on liability for forged or altered checks. Part I describes the magnetic ink character-recognition system. Part II discusses check truncation. Part III recounts the evolution of contract and tort theories of liability from traditional to modern bank practices. Part IV analyzes the new comparative negligence provisions. Part V investigates the standards of ordinary care. Part VI evaluates the respective duties of the banks and their customers in light of the provisions that reflect the banking industry's transformation from the Paper Age to the …

Developing A Victims' Suit For Injuries Caused By A Compulsorily Released Prisoner, Leonard M. Niehoff

University of Michigan Journal of Law Reform

This Note advocates the development of a tort remedy for victims injured by a compulsorily released prisoner. This remedy would be based on existing tort theory permitting suits against third parties whose negligence causes or facilitates a criminal act. The victim would bring suit against both the state and third parties who aided in the criminal release determination . To support his claim, the victim would allege: (1) that state officials negligently selected the offending inmate for early release; and (2) that the state negligently maintained the unconstitutional prison conditions which precipitated the release.

Part I of this Note discusses …

A Uniform Comparative Fault Act--What Should It Prove?, John W. Wade

University of Michigan Journal of Law Reform

The Committee has determined to treat the resultant delay as serendipitous and to use it for the purpose of improving the Act and presenting it in the best shape possible. To this end, as the Chairman of the Special Committee, I have prepared this presentation for publication. The presentation is intended to serve two purposes: (1) to provide for the legal profession information as to the present status of the Act, and the provisions it now carries, and (2) to solicit criticisms and suggestions for improvement from interested persons.

I am therefore presenting here the Uniform Comparative Fault Act in …

Workmen's Compensation: Toward A Stricter Liability For Enterprise, John A. Payne Jr.

University of Michigan Journal of Law Reform

This article considers the situation in which an employee injured by a defective product in the course of his employment can proceed both against his employer insured by a workmen's compensation program and against a manufacturer of the employer's equipment who is strictly liable under a claim of products liability. The focus is not on the manufacturer as employer but on the manufacturer as supplier of defective equipment which causes injury. This is the best situation for analyzing the problems arising from the present system for distributing losses because, where the negligence of the employer has been an independent cause …