TortsProf Blog

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Widener Univ. School of Law

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Saturday, March 22, 2008

What is Wrong with Tort Law? Discuss.

This morning, Walter Olson points his Overlawyered readers to a post and comments on Coyote Blog.  The discussion was initiated because of comments by jurors in the Ritter med mal case that they were torn between sympathy for the family and their belief that the doctors were blameless.  It's worth a look.

--CJR

http://lawprofessors.typepad.com/tortsprof/2008/03/what-is-wrong-w.html

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1) It has a supernatural power as its core doctrine. The element, foreseeability of rare accidents, violates the Establishment Clause.

2) It relies on the gut feelings of twelve strangers off the street as a lie detector. OK. What about the effect of the wisdom of the crowd? No. The lawyer excludes anyone with knowledge. In 1250 AD, the jurors had walked the boundaries of the disputed land at the time of transfer of title. They knew the litigants for years.

3) Most cases are weak. These are economic growth wreckers. They deter business startups. They deter IPO's. They consume massive blocks of time of business leaders.

4) The goals of torts are in failure. All safety enhancements stem from technology progress. No correlation between litigiousness and safety has been shown.

5) Whatever the masking ideology, torts are punishment, revenge, and expressions of animus. As such, discovery in torts violates the Self-Incrimination Clause of the Fifth Amendment. The lawyers on the bench allow it so the profession may plunder productive sectors. If making people whole were the purpose, automatic Medicaid for the injured would suffice.

6) Whatever the advantages of torts, the lawyer profession has selflessly forsworn them. They are the sole group that have maintained a privity obstacle to a legal malpractice claim by the adverse third party. If the filing of a weak is legal malpractice, they are not getting the profession improving benefit of torts. This immunity privilege is unique and self-dealt.

7) Beyond legal malpractice, the tort lawsuit itself is a product, dangerous, and harmful in its ordinary, intended use. It merits product liability, and fulfills all common law requirement for strict liability.

8) The process is corrupt. Paid off experts cancel each other out. The jury is left with likability of the parties as a basis of judgment. So, the trial is a Broadway production and a contest of fairy tales.

9) Judges and lawyers have dealt themselves absolute immunity for their incompetence. Self-help has full moral and intellectual justification. Only force and Army Airborne validate the torts system.

10) The lawyer has implanted bunches of take backsies for his mistakes into the self-written, self-dealing rules. Once money changes hands, res judicata freezes all injustices and false results. So smokers save state Medicaids money, by their early and quick deaths. The entirety of the tobacco settlement should be returned to the tobacco companies, with interest. This return should, by statute, be passed on to the buyers in the form of lower tobacco prices. Silicone implants caused no harm. The fired workers from the bankrupted chemical company should get compensation from the outrageously incompetent court and its owner. If a financial relationship can be shown between the judge and the legal profession, jail all around. Res judicata should end by a Constitutional Amendment, as should all self-dealt immunities of the little caesars on the bench. Vioxx caused no harm. Anti-depressants caused no harm. Anti-psychotics caused no harm. Yet, $billions have fraudulently enriched both sides of the lawyer profession, at the point of a gun, held by the pals of the lawyer on the bench. These results markedly disrupted the good clinical care of millions of people around the world.

11) No one who has passed 1L should sit on a bench, in any legislative seat, or policy position in the Executive. Pass a law, as the felon is excluded now. After 1L, the indoctrination cannot be taken back. Belief in supernatural doctrines. Self-deluded policy benefits of the torts system, really in utter failure. Accepts all self-dealt advantages of the lawyer profession. Blocks out the failure of government, run by the lawyer. Deniers the devastation done by the lawyer, especially to minority populations. Becomes irretrievably biased in favor of all lawyer enrichment schemes. Accepts the discipline of a tyrannical but idiotic hierarchy.

Posted by: Supremacy Claus | Mar 23, 2008 2:51:28 AM

I provided a list as a party. I would enjoy reading a list of problems with torts law from professional torts law academics.

This is not a sarcastic remark. Perhaps, they have no serious complaint with the law of torts as it is today.

Posted by: Supremacy Claus | Mar 24, 2008 3:55:09 AM

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