On Dissent, Violence, and the Intellectual

If I have properly assessed the meaning of Dean Forrester\u27s comments, he stated that: (1) America is now in the midst of an attempted revolution, an attempt to create a new society by force and violence; (2) war, race relations, poverty, environment, and the other festers in our society, while great problems, are not the real causes of the discontent; (3) the attempted revolution is the product of a generation of university teaching and writing which has created the intellectual atmosphere and the state of mind that sustain the conflict. I respectfully dissent while recognizing at the same time the soundness of his proposition that all men and women of good will who are engaged in the opinion-making professions should stress the affirmative along with the negative in the day-to-day appraisals of our society and that we should endeavor personally to maintain and to strengthen the good things which we have accomplished while giving our very best efforts to correcting the negative conditions

Products Liability--Some Observations About Allocation of Risks

Virtually all of the activities of mankind involve the use of some product. Consequently, nearly all losses in the nature of physical damage to persons or things, and a great deal of the economic losses flowing from inferior or unfit products, are factually caused by characteristics or conditions of products, or at least occur during the use of products. Therefore, when fault, in the sense in which fault has been used in the Anglo-American law of torts (a usage which frequently results in the imposition of liability without personal fault), is abandoned as a basis for shifting or allocating losses, some rules and principles must be substituted in its place in order to delimit liability; otherwise, the result would be a revolutionary scheme, involving the imposition of all losses on the makers of products as a class rather than upon the ultimate purchasers as a class. It has been suggested that something similar to this may indeed occur. Even now, if it must be shown that the harm resulted from a defective condition of a product, some courts have assumed the existence of a defective condition from (1) the unexplained occurrence of an accident in the course of an allegedly careful use of the product, and (2) the often unreliable testimony of an injured user that he was careful in the handling and use of the product. This practice lends support to the proposition that, realistically, the maker of the product is a risk distributor for all losses other than those attributable to certain known causes. This problem will be discussed in more detail below, since the attitude of the courts concerning questions of proof and sufficiency of evidence is as important as are the substantive rules for defining the risks to be borne

Products Liability-Drugs and Cosmetics

Much has been written by judges and scholars about abrogation of both the requirement of privity for recovery on warranty theories and the prerequisite of a finding of negligence for recovery on a tort theory against manufacturers and other sellers of all kinds of products.\u27 As a consequence of this abrogation, the courts in some states have completed the change-over from a fault to a strict liability theory of recovery for harm resulting from unintended and latent dangerous conditions of products. Moreover, removal of initial restrictions limiting strict liability to users and consumers is proceeding apace, and the logical extension of strict liability to bystanders has already been accomplished in several jurisdictions. Confusion and uncertainty remain, however, as to what actual impact these assaults on fault have had with reference to the legal remedies for physical harm caused by inherent risks attendant upon the use of products, such as drugs and cosmetics, that are constructed as they were intended to be

Doctrinal Problems of Fraud Law

The editorial staff of the Cleveland-Marshall Law Review is to be commended for making and carrying out the decision to publish this symposium issue on Fraud and Misrepresentation. The legal rules and principles related to the general question as to when an alleged misrepresentation will serve as a basis for any kind of relief in favor of the prejudiced party to a bargaining transaction are being constantly adjusted to meet new marketing practices and the ingenuity of mankind either to avoid unfavorable transactions or to induce favorable ones. It can be said without fear of contradiction that both case law and legislation during this century evidence an ever-widening recognition of the idea that the reasonable expectations of those entering into bargaining transactions should not be frustrated through deceptive practices and even innocent and non-negligent misrepresentations