Friday, August 20, 2010
Ellen Bublick (Arizona) has posted to SSRN The Tort-Proof Plaintiff: The Drunk in the Automobile, Crashworthiness Claims, and the Restatement (Third) of Torts. The abstract provides:
This article, for the Brooklyn Law School Symposium on the 10th Anniversary of the Restatement (Third) of Torts: Products Liability, looks at the difficult challenge courts face when they review crashworthiness claims that arise in conjunction with drunk driving. These claims highlight the difficulty of preserving structural accountability in tort law after the shift toward apportionment of liability that includes intentional, reckless and strict liability torts as well as negligence. The article suggests that certain court-created causal-apportionment doctrines help to preserve structural accountability. It also urges a more systematic confrontation of structural accountability questions in comparative responsibility systems like those recommended by the Restatement of Torts.
Thursday, August 19, 2010
This study out of Michigan is the latest supporting the apology and early offer of compensation approach. Bloomberg Businessweek has the story. I've written in support of a version of this plan. (Northwestern Law Review)
Wednesday, August 18, 2010
SC Adopts Risk-Utility As Sole Test in Design Defect Cases, Also on Post-Distribution Evidence and Punitive Damages
In an opinion filed on Monday, the South Carolina Supreme Court adopted the risk-utility test for design defect cases, rejecting use of a consumer expectations test. Under the risk-utility test, the court held that the plaintiff was required to present evidence of a reasonable alternative design that would have prevented the product from being unreasonably dangerous.
The court further held that "the use of post-distribution evidence to evaluate a product's design through the lens of hindsight is improper."
And finally, as to punitive damages, the court considered what financial evidence is proper in assessing punitive damages. Recognizing that the U.S. Supreme Court has not spoken on this issue, the court adopted a cautious approach, holding that only the defendant's net worth could be introduced. Applying this standard, the court found that evidence concerning the salaries and compensation of the defendant's officers was improper.
Thanks to William Gaskill for the case alert.
Tuesday, August 17, 2010
I have posted to SSRN Why Civil Recourse Theory Is Incomplete. The abstract provides:
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, such as deterrence, loss spreading, and administrative efficiency, is overly broad.
Using tort reform as a perspective by which to examine torts, I chronicle the growth of instrumentalism in tort law. All of the major tort reforms over the last century were based in instrumentalism. Moreover, when the reforms are viewed chronologically, a pattern develops: In each successive reform, instrumentalism made increasing inroads into tort.
Thus, as a positive account of tort law, civil recourse is incomplete. Tort law, as a positive matter, is about wrongs, but not exclusively wrongs. It is pluralist, including elements of instrumentalism as well.
Although I am ultimately critical, the process of writing the article only deepened my respect for John & Ben.
Comments are welcome: firstname.lastname@example.org.
Monday, August 16, 2010
It's "back to school" week here at Charleston. As we all gear up for another school year, I thought I'd pose a question: Are you trying anything different this year?
A couple of my colleagues are experimenting with lap-top free zones in their 1L classes. I decided not to join the experiment mainly because we require students to purchase lap tops and it seemed inconsistent for me to then say "but not in my class." I am, however, giving a graded mid-term for the first time in Professional Responsibility. (I give my 1Ls an ungraded mid-term).
So, back to the question, are you trying anything different in your classes this year?