Monday, April 21, 2008

Ten Half-Truths About Tort Law

John Goldberg (Vanderbilt) takes on what he sees as ten items of conventional wisdom about tort law that don't stand up to close scrutiny in this SSRN posting (to be published in Valparaiso Law Review).  The ten:

I.  Tort is a Miscellaneous Category.
II.  Tort Law is 150 Years Old, Give or Take.
III.  Tort Law is Accident Law.
IV.  The Life of Tort Law Has Been Experience, Not Logic.
V.  Tort Theories are Either Unified or Pluralist.
VI.  Tort Damages Aim to Make the Plaintiff Whole.
VII.  Tort Liability Exists on a Spectrum from Strict Liability to Intent.
VIII. Settlement and Insurance Have Rendered Tort Law Obsolete.
IX.  Tort Law is Common Law.
X.  Torts is a Class, Not a Subject.

It's an interesting and entertaining read.  What half-truths would you add?

--BC

http://lawprofessors.typepad.com/tortsprof/2008/04/ten-half-truths.html

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Comments

I. The money comes from the tortfeasor.

II. Torts result in safer environment.

III. Torts makes others see to our safety.

IV. Torts increases trust in providers.

V. Torts does not punish, either the tortfeasor, or the innocent defendant.

VI. Government, lawyers, and judges are too good to be subject to torts. Hans obeys the Eleventh Amendment.

VII. The contingency fee increases access to the Court.

VIII. The majority of cases have validity under current law.

VIII, The weak case, constituting the majority of cases, is not legal malpractice.

IX. Torts do not deter all economic activity, keeping growth at 3% not 9%, the real pace of properly lawyered economies.

X. Torts is not an unauthorized form of incompetent, stealthy, bad faith industrial policy, and Commie tyranny, transferring massive resources from the productive to the parasitic, to empower little Caesars on the bench, with total immunity for their incompetence.

Posted by: Supremacy Claus | Apr 21, 2008 1:39:22 PM

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