Law Commons^™

I argue that a concept of law that assigns primacy to the regulative role fulfilled by legal systems is best suited for explaining law’s discrete practice areas.  This regulative point of view facilitates the development of a concept of law capable of cohering with theories of discrete legal areas.  This posted paper revises the originally published Cumberland Law Review version.

This article addresses the subtle yet turbulent “duty wars” currently raging with respect to the conceptual nature of duty in tort law. The scholars have thus far divided principally into three camps, and the courts have increasingly been taking their cue from this scholarship and altering their previously settled notions of the duty element. The main dispute has been over the role of foreseeability in the duty analysis. This article critiques the principal approaches taken in the literature, demonstrating, for example, why the vision of duty articulated in the new Restatement (Third) of Torts and represented by one of the …

Three interrelated paradigm shifts are currently at play within products liability law. The first results from the tort reform movement’s heated efforts at dramatically restricting compensatory rights and options. The second arises from the countervailing effort to preserve products accountability by relinquishing no-fault strict-liability theories. The article’s resulting treatment of negligence introduces the third paradigm shift, by which the elements of accident law are restated more accurately. This shift from the traditional negligence formula will hone the reader’s ability to analyze tort law agendas, and the new analysis is here applied in critiquing three major initiatives in the tort reform …

This article tackles a products liability issue that is currently raging in litigations nationwide, especially in the asbestos context. Although tort reform attempts to preclude the seller's liability for dangerous post-sale components under the no-duty-to-rescue doctrine, that effort is misguided, and ignores legal doctrine and marketplace realities. Fairness and efficiency policy factors also warrant the imposition of failure-to-warn liability upon product sellers who implicitly or explicitly endorse (via foreseeability in a financially advantageous context, or actual inclusion of the later-replaced dangerous parts) ultrahazardous post-sale component parts.

Traditional approaches to specific causation are not feasible in toxic tort litigations. This article explores in depth the middle path between such unworkable, traditional approaches and institutionally improbable proposals that causation simply be abolished when toxic products are at issue. The middle way relies on the new judicial acceptance of certain forms of statistical proof. Epidemiological findings, especially when conjoined with case-specific differential diagnosis testimony, support causal inferences and should be attainable in a wide variety of toxic tort cases.