Friday, August 17, 2012
This week, Amaris Elliott-Engel, of PA Law Weekly, wrote the first of a series of articles on tort law. Her first piece is on the uncertainty in Pennsylvania products law. Twice in the last 3 years, the U.S. Court of Appeals for the Third Circuit has opined that the Pennsylvania Supreme Court would adopt the Restatement Third (Products Liability). However, the state Supreme Court has not directly addressed the issue, although there has been some provocative dicta and one instance in which the justices announced they had improvidently granted allocatur to consider whether section 2 of R3 should replace 402A of R2. Thus, in general, state courts are applying 402A and federal courts are applying R3, though even among federal courts, some apply 402A. As elsewhere, most plaintiffs' lawyers tend to prefer 402A and most defense lawyers tend to prefer R3.
Thanks to Scott Cooper for the tip.
Wednesday, August 15, 2012
Tuesday, August 14, 2012
Ben Zipursky (Fordham) has posted to SSRN Substantive Standing, Civil Recourse, and Corrective Justice. The abstract provides:
Substantive standing and relational wrongs are the core legal concepts with which civil recourse theory was commenced fourteen years ago. A plaintiff has substantive standing to bring a tort claim if the wrong committed by the tortfeasor was wrongful in the relevant respects in relation to the plaintiff: if the defendant defrauded the plaintiff (for a fraud claim), breached a duty of care owed to the plaintiff (for a negligence claim), trespassed upon her land (for a trespass claim), and so on. After tracing the development of civil recourse theory and its analytical roots in the ideas of substantive standing and relational wrongs, this article turns to: (A) criticizing corrective justice theory and distinguishing civil recourse theory from corrective justice theory; (B) criticizing retributive or vengeance-based theories of tort law and distinguishing civil recourse theory from such theories; (C) explaining the distinctive moral ideas at the core of civil recourse theory. The article develops the view – extant in positive morality and elaborated by reference to work by contemporary moral philosophers -- that a person who has been morally wronged has a moral right to demand an ameliorative response of the wrongdoer, and depicts this idea as the backward-looking mirror image of a moral right to self-defense. In empowering tort victims with a right of action against tortfeasors, the state is giving legal embodiment to this moral principle. It is recognizing, in a victim of a legal wrong, a right to demand ameliorative conduct of the one who legally wronged him or her. The article concludes by observing that there is a familiar moral notion of standing to demand a response to having been wronged that parallels the legal notions of substantive standing pervasive in the law of torts.