Law Commons^™

Tort Reform By Implied Conflict Preemption, Martin A. Kotler

Martin A. Kotler

Shared Sovereign Immunity As An Alternative To Federal Preemption: An Essay On The Attribution Of Responsibility For Harm To Others, Martin A. Kotler

Martin A. Kotler

The Myth Of Individualism And The Appeal Of Tort Reform, Martin A. Kotler

Martin A. Kotler

This Article examines the relationship between the American political culture of individualism and long-standing, well-established tort doctrine. Although much of the doctrine in the abstract is obviously reflective of the prevailing political culture, there remains a certain ambivalence. Thus, when judges and jurors are faced with deciding concrete cases before them, they frequently abandon their professed commitment to mythological notions of self-sufficiency and personal responsibility and find the injured plaintiff to be entitled to compensation.

The modern American tort reform movement’s recognition of this ambivalence underlies the essential strategy for reform. The reformers’ goals are more far reaching than the …

Products Liability And Basic Tort Law, Martin Kotler

Martin A. Kotler

No abstract provided.

Social Norms And Judicial Rulemaking: Commitment To Political Process And The Basis Of Tort Law, Martin A. Kotler

Martin A. Kotler

This Article looks at the respective roles of judges and juries in common law civil litigation and considers the legitimacy of both in light of our essential commitment to majoritarian politics. It concludes that the legitimacy of judicial rulemaking is highly suspect and can be justified when necessary to protect the political process by policing fraud and under a few other narrow sets of circumstances. Jury decision-making, on the other hand, is by far more defensible representing, as it does, a form of direct participatory democracy.

Thus, although the tort reform debate often focuses on the conflict between legislative bodies …

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

Martin A. Kotler

Commonly, strict liability in tort is understood as doctrine that serves to impose liability based on the fact that the defendant caused the plaintiff’s harm, regardless of the culpability of the defendant’s conduct. This Article takes issue with that view and seeks to reconceptualize strict liability as doctrine which, like negligence, assesses the culpability of the defendant’s conduct. Negligence, however, judges the defendant’s conduct by comparing it the norms of behavior of the social group of which the defendant is a member. In contrast, strict liability assesses the defendant’s conduct by comparing it to the norms of behavior of that …

Competing Conceptions Of Autonomy: A Reappraisal Of The Basis Of Tort Law, Martin A. Kotler

Martin A. Kotler

Seeking to identify and describe the essential values underlying tort law, this Article attempts to demonstrate that tort law is a system that simultaneously seeks to promote both efficiency and individual autonomy. It argues, however, that efficiency is a secondary goal of tort law that comes to the fore when it is inexpedient, impossible or unnecessary to promote the primary value of autonomy.

The primacy of autonomy, however, is often obscured by the fact that our conception of autonomy has evolved over the years. Once understood in terms of an individual’s rights in private property, autonomy is now widely perceived …

Motivation And Tort Law: Acting For Economic Gain As A Suspect Motive, Martin A. Kotler

Martin A. Kotler

Traditionally, tort scholars had claimed that the motives underlying a tortfeasor’s decision to act were largely irrelevant. This Article challenges that view by showing the recurring importance of motive. Specifically, whether the actor is perceived to have been motivated by a desire for personal economic gain or, conversely, motivated by altruism correlates closely with the development of tort doctrine imposing liability on the former and immunizing the latter.

The observation that the economically motivated actor has been disfavored historically contradicts much of the descriptive and normative law and economics literature which argued that wealth maximizing behavior was and should be …

Imposing Punitive Damage Liability On The Intoxicated Driver, Martin Kotler

Martin A. Kotler

This Article explores the traditional justification for the imposition of punitive damage liability in the context of drunk driving. Though courts have increasingly found such damages to be available in the appropriate case, neither the deterrence nor punishment rationales can be justified in the absence of widespread public awareness that specific conduct has the potential to result in liability. Criminal sanction, therefore, better serves to accomplish the intended purposes.