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The Hand Formula In The Draft "Restatement (Third) Of Torts": Encompassing Fairness As Well As Efficiency Values, Kenneth W. Simons

Vanderbilt Law Review

The definition of negligence in the draft Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft") employs a version of the Learned Hand formula. According to the chief Reporter, Professor Gary Schwartz, who is responsible for this draft, the Hand formula can accommodate both economic and fairness accounts of negligence law.

Is he correct? I will argue that he is, and that the Hand formula, suitably defined and explained, is indeed an appropriate general criterion for negligence. At the same time, however, the current Discussion Draft is deficient in some respects. It does not adequately allay the fears of …

The Passing Of Palsgraf?, Ernest J. Weinrib

Vanderbilt Law Review

According to a well-known story, Cardozo's Palsgraf opinion' was born in his attendance at the discussion of the Restatement (First) of Torts. If the formulations now proposed for the Restatement (Third) of Torts (proposed "Restatement") stand, the Palsgraf case--indeed the whole notion of duty as a viable element of negli- gence analysis-- will effectively be dead. The proposed Restatement suggests that "duty is a non-issue" confined to unusual cases where "special problems of principle or policy... justify the withholding of liability." Duty has then merely a negative significance. It refers not to an element necessary to establish the defendant's liability, …

Purpose, Belief, And Recklessness: Pruning The "Restatement" (Third)'S Definition Of Intent, Anthony J. Sebok

Vanderbilt Law Review

The concept of intent has always been at the root of some of tort law's most basic categories. The primitive action for trespass, for example, assumed that, at the very least, the trespasser intended to perform the act that resulted in the touching about which the plaintiff complains; a man thrown into another's close is not a trespasser. After the development of the modern categories of tort law, trespass helped form the foundation of the category of intentional torts. Sometimes, though, the very fact that a great deal of effort is required to do something is evidence of controversy or …

The Trouble With Negligence, Kenneth S. Abraham

Vanderbilt Law Review

The concept of negligence dominates tort law. Most tort cases are about negligence. Much tort law scholarship over the past several decades has been about the meaning of negligence. The new draft Restatement (Third) of Torts: General Principles ("Discussion Draft") devotes the vast majority of its first volume to negligence. And the idea of negligence as a liability standard is highly attractive to both the courts and commentators.

All the attention that negligence receives is not surprising, given the unattractiveness of the alternatives. Imposing liability only when the injurer intended harm seems unduly limited, in that it absolves injurers of …

The Restatement Of Torts And The Courts, Jack B. Weinstein

Vanderbilt Law Review

Primarily through tort law the courts compensate those injured by others. Secondary aspects of our work such as deterrence or forcing tortfeasors to pay the full social costs of their activities are minor and collateral. For jurors focusing on compensation, tort law has only two operative elements: damage and cause. It is the law professor and the judge, through decisions on motions and instructions, who are the main Restatement consumers. Emphasizing mass torts, I will make three points relevant to those considering the health of tort law.

First: Tort law in its least inhibitory principle is useful be- cause of …

The Restatement (Third) And The Place Of Duty In Negligence Law, John C.P. Goldberg, Benjamin C. Zipursky

Vanderbilt Law Review

A prima facie case of negligence has four elements: duty, breach, causation, and injury. In plain English, a person suing for negligence alleges that the defendant owed her a duty of reasonable care and injured her by breaching that duty. Every state adheres to the four-element account,' with perhaps two exceptions. That ac- count was prominent in the various editions of Prosser's treatise, and is likewise prominent in Professor Dobbs' successor treatise. Leading casebooks also feature the four-element formula.

Given the widespread adoption of the four-element test, one would have expected to encounter it somewhere in the two drafts of …

The Theory Of Tort Doctrine And The Restatement (Third) Of Torts, Keith N. Hylton

Vanderbilt Law Review

Though at times a source of controversy, the American Law Institute performs an enormous public service through its Restatement projects. One of the initial hurdles any such project confronts is whether it should aim to clarify and illuminate the law, or to push the law in a certain direction. I think the Restatement project is most productive when it aims to clarify and illuminate rather than guide or control the development of legal doctrine. Efforts to guide and control risk producing questionable interpretations of the aw, undermining the value of the Restatement in the long run. Fortunately, the Restatement of …

Duty Rules, David Owen

Vanderbilt Law Review

Few principles are more fundamentally important to modern society than duty. As obligation to oneself and others-to one's family, friends, neighbors, business associates, clients, customers, community, nation, and God-duty is the thread that binds humans to the world, to the communities in which they live. Duty constrains and channels human behavior in a socially responsible way before the fact, and it provides a basis for judging the propriety of behavior thereafter. Duty flows from millennia of social customs, philosophy, and religion. And duty is the overarching concept of the law.

Duty is central to the law of torts. Negligence law …

Cost-Benefit Analysis And The Negligence Standard, Stephen R. Perry

Vanderbilt Law Review

In his commentary on the proposed Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft"), Stephen Gilles does an excellent job of analyzing the role of cost- benefit analysis in the characterization of reasonable care in previous restatements, and also of tracing the relationship between that characterization and contemporaneous scholarly work. This is a necessary prelude to any attempt to reformulate the content of the negligence standard in a Restatement (Third), and I think that Gilles' work will prove to be exceptionally helpful in that regard. Given the limited space I have available for my own comments, however, I …

Intent And Recklessness In Torts: The Practical Craft Of Restating Law, James A. Henderson, Jr., Aaron D. Twerski

Vanderbilt Law Review

However one frames the concepts of intent and recklessness in a Restatement, they must be kept generic, stable, and endogenous. By "generic" we mean that the concepts should not be tied to any single tort, or family of torts. For example, one frequently encounters philosophical treatments of tort that automatically link intent with the causing of tangible harms, such as personal injury and property damage. Apparently, intent and harm are coupled in this manner in order to contrast intentional infliction of harm with negligently harmful conduct. But to inextricably link intent with tangible harm in a Restatement of Torts would …

Restatement (Third) Of Torts: General Principles And The Prescription Of Masculine Order, Anita Bernstein

Vanderbilt Law Review

Until April 1999, when it published a draft called Restatement (Third) of Torts: General Principles ("General Principles"), the American Law Institute ("ALI") had never purported to declare the "general principles" of anything.' This lack of precedent meant a blank slate: Reporters can carry out a general-principles mandate in varying ways. One contributor to this Conference, David Owen, has spoken elsewhere of "paths taken and untaken in the Restatement (Third)" to describe choices about products liability rules. Professor Owen has perceived these divergences as wide and profound. In the General Principles, which strive to speak about all of Torts rather than …

A Pragmatic Approach To Improving Tort Law, Catharine P. Wells

Vanderbilt Law Review

In 1923, a group of lawyers, judges, and teachers met to consider the desirability of forming the American Law Institute ("ALP) and of undertaking its ongoing project of restating the law. They began their deliberations with the recognition that the legal system had serious failings' and that the public was generally dissatisfied and skeptical about the justice it dispensed. The central difficulty with the system of justice, they thought, was the fact that legal outcomes were so uncertain. Uncertainty, they argued, made the legal system cumbersome, expensive and inaccessible; it denied justice to litigants and discouraged legitimate activities. The reasons …

On Determining Negligence: Hand Formula Balancing, The Reasonable Person Standard, And The Jury, Stephen G. Gilles

Vanderbilt Law Review

trial practice ensure that the operational meaning of negligence is largely determined by juries in particular cases, rather than by the doctrines stated in appellate decisions (and restated in Restatements of Torts). Even if these practices are misguided, it is clear that no Restatement could repudiate them without drastically departing from the American Law Institute's ("ALI") traditional position that Restatements are predominantly positive and only incrementally normative.

On the other hand, the conception of negligence articulated in the Restatement (First) of Torts ("Restatement (First)")--which was carried over virtually unchanged into the Restatement (Second) of Torts ("Restatement (Second)"), and hence has …

Once More Into The Bramble Bush: Duty, Causal Contribution, And The Extent Of Legal Responsibility, Richard W. Wright

Vanderbilt Law Review

Few issues in tort law are more in need of clarification than those encompassed by the concepts of legal cause and duty, which are not only the subject of "opaque, confused and contradictory" treatments in the American Law Institute's Restatement of the Law of Torts,' relied upon by many American courts, but also the subject of even more opaque and confused treatment in many foreign jurisdictions. The focus of this conference is on tort law in the United States, and my assigned task is to comment on the issues encompassed by the concept of legal cause, especially as they are …

The Theory Of Enterprise Liability And Common Law Strict Liability, Gregory C. Keating

Vanderbilt Law Review

The fundamental claim that the Restatement (Third) of Torts: General Principles makes about strict liability is striking and bold. The Restatement (Third) claims that there are only special instances of strict liability. Negligence is a general legal principle, but strict liability is a set of particular doctrines. Curiously, however, the Restatement (Third) also takes the position that strict liability is a unified form of liability; it characterizes strict liability as liability for the characteristic risks of an activity.' So the Restatement (Third)'s claim that strict liability is a set of special cases seems to be a claim that strict liability …

Non-Utilitarian Negligence Norms And The Reasonable Person Standard, Steven Hetcher

Vanderbilt Law Review

Informal social norms play a crucial, albeit largely unheralded, role in negligence law. The reasonable person standard is an empty vessel that jurors fill with community norms. Jurors do this rather than performing cost-benefit analysis. The proposed Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft") misses both of these points. It dramatically overstates the role of utilitarian, cost-benefit analysis in the reasonable person standard, and it dramatically understates the role of non-utilitarian negligence norms in this standard. This Article will explore these twin failings of the Discussion Draft.

The negligence cause of action makes up the lion's share …

Scientific Uncertainty And Causation In Tort Law, Mark Geistfeld

Vanderbilt Law Review

Tort cases involving scientific uncertainty frequently present courts with a difficult causation issue. In the paradigmatic case, the available scientific evidence indicates that a substance might be hazardous, but does not establish that the substance is hazardous.' When presented with such evidence, courts must decide whether the plaintiff has adequately proven that her injury was tortiously caused by the substance.

This causal issue potentially arises whenever we do not fully understand how a substance interacts with the body and produces an adverse health outcome. We do not, for example, adequately understand the etiology of cancer.2 To assess whether a substance …

The Duty Concept In Negligence Law: A Comment, Robert L. Rabin

Vanderbilt Law Review

As critics John Goldberg and Benjamin Zipursky see it, the draft version of the Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft") that is the occasion for this Symposium has relegated the duty issue in negligence law to a relatively minor, nay-saying role. More particularly, duty is not directly mentioned by the Reporter in Section 3, which provides that "[a]n actor is subject to liability for negligent conduct that is a legal cause of physical harm.' And in Section 6, when the Reporter does get around to addressing the subject of duty, it is in arguably backhanded, no-duty …

Legal Cause: Cause-In-Fact And The Scope Of Liability For Consequences, Jane Stapleton

Vanderbilt Law Review

The project to restate the law of torts offers a number of opportunities.' One is law reform, as the last two Restatements concerning products liability illustrate. Another is to reflect on doctrinal history, both in the case law and in the academy. Yet an- other, and the one I focus on, is the opportunity to clarify legal concepts, if necessary by reformulation and restructuring, in order to assist courts to manage new challenges that have emerged since the last Restatement. Few areas in the law of tort are in more need of this re-evaluation than the area covered by the …

Interpretive Construction, Systemic Consistency, And Criterial Norms In Tort Law, Jody David Armour

Vanderbilt Law Review

These brief remarks focus on the concepts of intent and recklessness in tort and how a Restatement should approach them. They center on three jurisprudential issues that are raised in any discussion of the basic building block concepts of a body of law, namely, the role of interpretive construction in the application of such concepts, the value of systemic consistency between such concepts and similar ones in other bodies of law, and, finally, the need to determine which concepts are criterial and which are merely evidential. They reflect my commentaries as a member of the panel on intent at the …

Removing Emotional Harm From The Core Of Tort Law, Martha Chamallas

Vanderbilt Law Review

My commentary is directed to one important feature of the new Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft")-the decision to remove liability for emotional harm from the core of tort law. As a Torts professor, I am very attracted to the Discussion Draft because to a large extent it tracks the way I structure and teach torts to first year students. It reflects what Professors Jack Balkin and Sanford Levinson describe as the pedagogical canon in torts, by highlighting those topics and subtopics that most professors emphasize in their scaled- down Torts course and including the material …

Restating Duty, Breach, And Proximate Cause In Negligence Law: Descriptive Theory And The Rule Of Law, Patrick J. Kelley

Vanderbilt Law Review

The American Law Institute ("ALI") set out to restate the general common law in the United States in order to promote clarity and certainty in the common law, which were threatened by "the ever increasing volume of the decisions of the [different state] courts, establishing new rules or precedents, and the numerous in- stances in which the decisions are irreconcilable." Clarity and certainty in the common law across the United States, of course, re- quires uniformity. Naturally enough, then, the Institute recognized that a Restatement would promote clarity and certainty in the law only insofar as "the legal profession accepts …

The Unexpected Persistence Of Negligence, 1980-2000, G. Edward White

Vanderbilt Law Review

In Tort Law in America: An Intellectual History, I made the general argument that the development of tort law in the nineteenth and twentieth centuries had been more influenced by ideas than previous scholars had suggested.' In making that argument I employed the terms "ideas" and "influence" at multiple levels of generality. The argument would perhaps have been better under- stood if I had more clearly particularized the specificity and generality of my claims about ideas as causal agents.

At the most specific level, I employed the term "ideas" to refer to particular doctrinal and policy proposals for tort law …

Accidental Torts, Thomas C. Grey

Vanderbilt Law Review

One way to understand tort law is as a functional response to the social problem of accidental personal injury. That puts the negligence action at the center, and emphasizes the doctrinal choice between negligence and strict liability, while downplaying the intentional torts and the torts that do not involve physical injury. It also foregrounds the policy choice between tort and other means of dealing with accidents. This functional treatment is not uncontroversial today, but it is certainly orthodox.

Here I propose to bring back into view some neglected aspects of the intellectual origins of the accident-centered approach to tort law. …

Introduction: The Third Restatement Of Torts: General Principles And The John W. Wade Conference, John C.P. Goldberg

Vanderbilt Law Review

The American Law Institute ("ALT") is in the midst of constructing the Restatement (Third) of Torts. Two parts of the project have already been completed and published as, respectively, the Restatement (Third): Products Liability and the Restatement (Third): Apportionment of Liability. The next component, a Restatement of the "General Principles" of tort, is underway. The goal for this facet of the overall project is to provide a coherent and usable account of fundamental tort concepts including intent, negligence, duty, actual and proximate cause, abnormally dangerous activity, and the like.

Policing The Police: Clarifying The Test For Holding The Government Liable Under 42 U.S.C. § 1983 And The State-Created Danger Theory, Jeremy D. Kernodle

Vanderbilt Law Review

On October 20, 1980, as Barbara Piotrowski left a donut shop, a man hired by her ex-boyfriend to kill her shot her four times in the chest. Within twenty-four hours, the Houston Police Department ("HPD") arrested the gunman and his driver and obtained heir confessions. Piotrowski's millionaire ex-boyfriend moved to England and was never arrested nor brought to trial.

Fifteen years later, Piotrowski sued the City of Houston under 42 U.S.C. § 1983 for depriving her of her constitutional right to life and liberty and equal protection. She based her lawsuit primarily on information that a month before the shooting, …