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Thursday, April 2, 2009

Duty in the Third Restatement

The Wake Forest Symposium on the Third Restatement opened today with a panel on "Duty in the Third Restatement."   Jonathan Cardi (Kentucky), Mark Geistfeld (NYU), and Victor Schwartz (Shook Hardy) presented.  The panel was moderated by Margaret Taylor (Wake Forest). 

Cardi presented "A Pluralistic Analysis of the Therapist/Physician Duty to Warn Third Parties" (pdf). 

In his talk, Cardi focused on two main points.  First, he argued that the R3's "no position" on any duty by non-mental health physicians to warn foreseeable third parties was inaccurate as a descriptive matter.  Cardi found "surprising unanimity" in decisions upholding a physician duty to warn, both as to patients and as to third parties.  That said, Cardi agreed that, as a normative matter, the R3's "no position" on physician duty to warn was correct.  Cardi concluded that neither instrumentalist theory nor corrective justice theory alone described this area of the law well.    

Noting that the murder in Tarasoff took place two months after the threat was made to the therapist, Aaron Twerski(Brooklyn) questioned the causal link in the therapist cases, and asked Cardi whether causation should figure into the duty analysis.  Cardi agreed that courts have weighed causation as part of their duty analysis in both the therapist cases and physician cases, but argued it should not be included as part of duty. 

Also in the Q&A, John C.P. Goldberg (Harvard) noted that the overlap between corrective justice "reasons" and efficiency "reasons" for imposing duty, which Cardi acknowledged. 

Geistfeld discussed "Social Value as a Policy-Based Limitation of the Ordinary Duty to Exercise Reasonable Care" (pdf). 

In his talk, Geistfeld questioned the R3's apparent siding with efficiency proponents.  Geistfeld urged the consideration of social values, which are not dependent on efficiency theory.  He suggested consideration of such values as equality or autonomy and illustrated his point with the social host cases.   Geistfeld further focused on the problem of legal uncertainty, and pointed out that no other element in a negligence claim gets to the interest of legal certainty.    Geistfeld also noted that an institutional question flows from these points:  the role of the judge vs. jury as decision maker. 

In the Q&A period, Twerski pointed out that in Hamilton v. Beretta, part of the problem was process oriented:  the court struggled with whether it was the proper agency to reorganize the gun industry.  Geistfeld agreed, and stated that it was not inconsistent with a social norms analysis to recognize the role of other decision makers.  

Also during the Q&A, Ariel Porat(Tel Aviv/Chicago) noted that he was "suspicious" about using legal uncertainty as a reason not to impose a duty.   He argued that uncertainty would gradually disappear after 10 years of development.   Keith Hylton (BU), however, noted that, among other functions, duty doctrine crystallizes what would otherwise occur under proximate cause, and this was beneficial because consideration under duty created legal certainty.    

Schwartz presented "Can Government Impose a New Tort Duty to Prevent External Risks?  The 'No Fault' Theory Behind Today's High Stakes Government Recoupment Suits" (pdf).

In an entertaining talk, Schwartz discussed what he called "government externalization theory," the idea that a manufacturer or service provider whose product creates a risk to society should not be able to externalize that risk.  Schwartz characterized this anti-externalization theory as the "driving force" behind various legal engines used in recent years such as public nuisance suits, parens patriae suits, and consumer protection act suits.  Schwartz argued that this anti-externalization theory goes beyond the scope of the R3's concept of duty as well as the boundaries of tort law.   

Following the presentations, Dan Dobbs (Arizona), Justice Andrew Hurwitz (AZ Supreme Court), and Larry Stewart (Stewart Tilghman) gave their comments. 

Justice Hurwitz commented that the R3 forces judges to justify their no duty decisions.  He further noted that judges are acting in a legislative capacity when finding no duty. Hurwitz further commented that R3 creates a presumption in favor of duty, and therefore the burden falls on the party arguing "no duty" to provide the court with information on the risk/benefit (both moral matters and economic matters) of creating a duty.  

In a point that would be echoed throughout the day, Stewart noted that the R3 does not address the lack of a mechanism to evaluate the various factors proposed by the presenters.  In other words, Stewart asked, how are courts supposed to weigh the competing values (economic favors and corrective justice factors)?  Echoing the ranking question, Jane Stapleton (Texas) noted during the Q&A that other jurisdictions have a high density of appellate case law in this area, but have failed to develop a "holy grail" ordering of the long list of factors.  

Dobbs likewise found it proper, as a normative matter, that judges should consider both instrumental and corrective justice factors, but asked which specific things should be considered, and once identified, how should these factors be weighed?   Dobbs was troubled that a pluralist approach, as Cardi advocated, would be an amorphous list. 

You can listen to this panel or download for later enjoyment here.

- SBS

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