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Full-Text Articles in Law
The Prosser Letters: 1917-1948, Christopher Robinette
The Prosser Letters: 1917-1948, Christopher Robinette
Christopher J Robinette
William Prosser was one of the most accomplished and influential scholars of the twentieth century. He molded the development of tort doctrine, especially in the areas of products liability, privacy, and the intentional infliction of emotional distress. In spite of his numerous achievements, there is no full-length biography of Prosser. A major reason no one has written such a volume is the lack of Prosser’s papers. Based on information from a Berkeley Law librarian, it appears Prosser destroyed most of his papers in 1963. Recently, however, prominent academics have both written shorter biographical pieces on Prosser and called for further …
Party Autonomy In Tort Theory And Reform, Christopher Robinette
Party Autonomy In Tort Theory And Reform, Christopher Robinette
Christopher J Robinette
Tort theory has been dominated by a debate between scholars who view tort law as rooted in individualized justice and scholars who argue tort law is an instrument of social policy. This dialogue has distracted scholars from the more important issue of how to properly separate cases worthy of individualized justice treatment from those better suited to routinized resolution. Tort law already contains both types. One potentially fruitful method of separation is to empower the parties themselves to make the decision. They could do so by voluntarily trading liability for the elimination or substantial reduction in non-economic damages. Such an …
The Optimal Resolution Of Intra-Policy Um/Uim Stacking, Christopher Robinette, Jessica Smeriglio
The Optimal Resolution Of Intra-Policy Um/Uim Stacking, Christopher Robinette, Jessica Smeriglio
Christopher J Robinette
This article presents the uncertainty and inefficiency across the jurisdictions in intra-policy UM/UIM stacking in personal line automobile insurance policies and recommends a specific solution. Part II provides a brief description of UM/UIM coverage and stacking in general, and Part III delves into the complex issues surrounding UM/UIM stacking today, breaking down the factors and arguments specific to intra-policy and inter-policy stacking. Part IV discusses five general approaches states have taken towards stacking, including three different case examples specific to intra-policy stacking. Part V includes our recommendations for handling intra-policy stacking, followed by the conclusion in Part VI.
Apportioning Liability In Maryland Tort Cases: Time To End Contributory Negligence And Joint And Several Liability, Christopher Robinette
Apportioning Liability In Maryland Tort Cases: Time To End Contributory Negligence And Joint And Several Liability, Christopher Robinette
Christopher J Robinette
The Article presents a comprehensive proposal for assigning liability in tort cases according to the parties’ respective degrees of fault. The authors criticize the Court of Appeals of Maryland’s recent decision in Coleman v. Soccer Association of Columbia declining to abrogate contributory negligence, particularly the court’s notion that it should not act because of the legislature’s repeated failure to do so. The Article provides a comprehensive analysis of the advantages and disadvantages of comparative fault, including its effect on administrative costs, claims frequency, claims severity, insurance premiums, and economic performance. The authors propose the legislative enactment of comparative fault and …
Introduction, Part Ii, Perspectives In Mass Tort Litigation Symposium, Christopher J. Robinette
Introduction, Part Ii, Perspectives In Mass Tort Litigation Symposium, Christopher J. Robinette
Christopher J Robinette
Mass tort litigation, the civil justice system's response to a large number of claims deriving from a product or event, is one of the most dynamic, contested, and financially significant areas of tort law. Prominent examples include asbestos litigation, pharmaceutical litigation, the BP oil spill, and the suit by September 11th first responders. Using a system originally designed for individuals to resolve the claims of groups creates many challenges on both a theoretical and practical level.
General Principles And Introductory Matters In Motor Vehicle Insurance Law, Christopher Robinette
General Principles And Introductory Matters In Motor Vehicle Insurance Law, Christopher Robinette
Christopher J Robinette
Chapter 61 provides an overview of automobile insurance law in the United States, including many matters that will be covered in greater detail in subsequent chapters. The goal in this chapter is to orient the reader to the major components of, and issues concerning, automobile insurance.
Two Roads Diverge For Civil Recourse Theory, Christopher Robinette
Two Roads Diverge For Civil Recourse Theory, Christopher Robinette
Christopher J Robinette
John Goldberg and Ben Zipursky’s civil recourse theory purports to be descriptive and unitary. It cannot be both. According to this theory, as a positive matter, tort law is unified by wrongs and is not designed to be used as an instrument for purposes such as compensation and deterrence. In this article, I argue that civil recourse theory does not offer a complete description of twenty first century tort law. Tort law is not just about civil recourse; at least part of tort law’s purpose is instrumental. The extent of routinization in tort law, particularly in automobile accident claims, demonstrates …
Introduction, Perspectives On Mass Tort Litigation Symposium, Christopher J. Robinette
Introduction, Perspectives On Mass Tort Litigation Symposium, Christopher J. Robinette
Christopher J Robinette
This symposium approaches mass tort litigation from a variety of perspectives. First, a group of nationally renowned legal academics describes and discusses the theories underlying mass tort litigation. Then a panel of practitioners introduces several emerging issues in the practice of mass torts. Next, Pennsylvania-specific civil justice issues, including joint and several liability and venue, are debated. These reforms affect not only mass tort, but more traditional tort litigation as well. One of the original mass tort issues—asbestos—created the widespread problem of bankrupt defendants, and resolving the problem is the subject of the fourth panel. Finally, traditional rules of ethics …
Why Civil Recourse Theory Is Incomplete, Christopher Robinette
Why Civil Recourse Theory Is Incomplete, Christopher Robinette
Christopher J Robinette
The latest prominent theory of torts is the rich “civil recourse” theory of Professors John C. P. Goldberg and Benjamin C. Zipursky. Pursuant to civil recourse, tort is a law of wrongs. Specifically, tort law’s purpose is “providing victims with an avenue of civil recourse against those who have wrongfully injured them.” As such, Goldberg & Zipursky, with certain de minimis exceptions, deny that tort’s purpose is to serve as an instrument to achieve social and public policy goals.
Although I agree with Goldberg & Zipursky that wrongs are an essential component of tort law, their exclusion of instrumentalist concerns, …
The Prosser Notebook: Classroom As Biography And Intellectual History, Christopher Robinette
The Prosser Notebook: Classroom As Biography And Intellectual History, Christopher Robinette
Christopher J Robinette
When a former student offered to let me see his grandfather's Torts notebook, I was intrigued. The 70-year-old black notebook has developed a patina, but is in remarkably good condition. The sides have a lightly textured surface. The spine, not damaged by cracks, has several small gold stripes running across it. The notebook belonged to a first-year law student named Leroy S. Merrifield during the 1938-39 academic year at the University of Minnesota Law School. Merrifield used it to record notes during his Torts class. His professor was William Prosser.
Because Prosser's papers likely have been destroyed, Merrifield's notebook offers …
Tort Law's Flaws, Jeffrey O'Connell, Christopher Robinette
Tort Law's Flaws, Jeffrey O'Connell, Christopher Robinette
Christopher J Robinette
This succinct paperback on tort reform lays bare one of the most important recent movements in the civil justice field. It begins with a brief overview of central themes and issues and then presents a series of original essays and comments by preeminent scholars, lawyers, and leaders in Tort Reform. The essays are followed by fictional narratives written from the standpoint of plaintiffs, defendants, and policymakers; a simulation; and a selection of carefully edited articles, government documents, interest group position papers, and cases. Comments, notes, and questions are interspersed throughout the text.
The Synergy Of Early Offers And Medical Explanations/Apologies, Christopher J. Robinette
The Synergy Of Early Offers And Medical Explanations/Apologies, Christopher J. Robinette
Christopher J Robinette
Medical malpractice law has been subjected to strong criticism by both medical and legal commentators. It has been challenged as inefficient, inaccurate, and even counterproductive. Although many reforms have been proposed, most tend to benefit one group - either physicians or patients - to the exclusion of the other.
A Recipe For Balanced Tort Reform: Early Offers With Swift Settlements, Christopher Robinette, Jeffrey O’Connell
A Recipe For Balanced Tort Reform: Early Offers With Swift Settlements, Christopher Robinette, Jeffrey O’Connell
Christopher J Robinette
This book begins with detailed and evocative accounts of the workings of several actual personal injury cases with all their turbulence and tribulations. It then closely analyzes the (one-sided) tort reforms, both proposed and enacted, that leave too much of the present dysfunctional system intact, while even further undermining it. The authors provide a detailed account of a proposed reform: a device for encouraging defendants’ “Early Offers” of claimants’ economic losses designed to benefit both sides as well as society generally. This system, while greatly lessening the daunting uncertainty and delay plaguing personal injury claims today, would also make far …
Peace: A Public Purpose For Punitive Damages?, Symposium: Punitive Damages, Due Process, And Deterrence: The Debate After Philip Morris V. Williams, Christopher J. Robinette
Peace: A Public Purpose For Punitive Damages?, Symposium: Punitive Damages, Due Process, And Deterrence: The Debate After Philip Morris V. Williams, Christopher J. Robinette
Christopher J Robinette
There is widespread agreement that tort (and criminal) law developed historically as an alternative to violence. Given that pedigree, it is not surprising that preserving the peace would be pursued as a goal of punitive damages, as is claimed in several cases and law review articles. The precise relationship between peace and punitive damages is left relatively vague. However, a recent article by Professor Anthony Sebok can be used to fill in the details.
Professor Sebok constructs a private-law theory of punitive damages that emphasizes two features. First, punitive damages are awarded for violations of only a certain kind of …
Introduction, Crimtorts Symposium, Christopher J. Robinette
Introduction, Crimtorts Symposium, Christopher J. Robinette
Christopher J Robinette
Crimtorts is a word coined by Professors Thomas Koenig and Michael Rustad to describe the middle ground between criminal and tort law. Crimtorts is not a new body of law or even a new cause of action. Rather, crimtorts is an explicit recognition that criminal law principles of punishment and deterrence have been assimilated into tort law. The extent of the assimilation and its effects on the tort system are issues that merit robust consideration.
The Crimtorts symposium, held at the Widener University School of Law on February 25, 2008, took up this challenge. The participants were Professors Martha Chamallas, …
Torts Rationales, Pluralism, And Isaiah Berlin, Christopher J. Robinette
Torts Rationales, Pluralism, And Isaiah Berlin, Christopher J. Robinette
Christopher J Robinette
Most modern torts scholars adopt a monistic view of torts, arguing that the tort system can be justified or explained by reference to a single rationale. In contrast, few torts pluralists, scholars believing the tort system is based on multiple rationales, have put forward a general theory or framework for tort law.
A pluralistic view of the tort system poses significant questions about the relationship among the rationales. Do the rationales work together as a seamless whole? Do the rationales conflict? If they conflict, how does one choose among them? Does the entire system devolve into adjudicative relativism, whereby a …
Can There Be A Unified Theory Of Torts? A Pluralist Suggestion From History And Doctrine, Christopher J. Robinette
Can There Be A Unified Theory Of Torts? A Pluralist Suggestion From History And Doctrine, Christopher J. Robinette
Christopher J Robinette
In this article, I discuss the tendency of tort theorists to attempt to unify all of tort law. In other words, many scholars have sought to explain torts by the use of a single idea. Originally, scholars attempted a unity of doctrine, such as Holmes' focus on negligence. In the last several decades, scholars have sought to unify torts by rationale. In particular, modern scholars tend to view torts either as a means of deterring injuries or of achieving corrective justice.
I argue that both history and doctrine suggest that the attempt to unify all of torts is futile. From …
Contributory Or Comparative: Which Is The Optimal Negligence Rule?, Christopher J. Robinette, Paul G. Sherland
Contributory Or Comparative: Which Is The Optimal Negligence Rule?, Christopher J. Robinette, Paul G. Sherland
Christopher J Robinette
Almost immediately after negligence emerged as a distinct tort in the early nineteenth century, the defense of contributory negligence began to develop in conjunction with it. The contributory negligence rule is that when a plaintiff's negligence contributes to the occurrence of an accident, the plaintiff cannot recover damages from a defendant who negligently injures him. Thus, even a slightly negligent plaintiff could not recover from a negligent defendant if the plaintiff's negligence proximately caused his own injury. The contributory negligence rule originated in the English case of Butterfield v. Forrester and was eventually adopted by all fifty states and the …
The Role Of Compensation In Personal Injury Tort Law: A Response To The Opposite Concerns Of Gary Schwartz And Patrick Atiyah, Christopher J. Robinette
The Role Of Compensation In Personal Injury Tort Law: A Response To The Opposite Concerns Of Gary Schwartz And Patrick Atiyah, Christopher J. Robinette
Christopher J Robinette
A failure to focus on the practical operation of tort law--especially as it intersects with insurance--is a feature of too much contemporary tort scholarship. It was in mid-century that Fleming James of Yale hauled tort law from its isolation into a recognition that it is not only undergirded but dominated by insurance, with its concomitant concern for paying accident victims and spreading losses. Even appellate courts in the old pre-James days recoiled from mentioning insurance, mirroring trial judges who shielded jurors from such sullied considerations. But despite James's breakthrough, thoughtful jurisprudes like Ernest Weinrib and Stephen Perry, along with younger …