Foreword: David Fischer, The Fox(a)

It is my great pleasure to pen a few words in honor of my friend and fellow laborer in the torts vineyard, Professor David Fischer. Professor Fischer has been an intellectual force in the modem development of tort law. He has made us think hard about the implications of tort rules. He is in the intellectual tradition of a splitter, and not a lumper, in his scholarship., Most of scholarship in modem tort law falls into the lumper camp. It is scholarship that looks at tort rules as encapsulating wider models that serve certain instrumental ends, or as part of a non-consequential system of norms; for example, law and economics has taken tort rules to reflect a system of rules that serve efficiency. Others view the rules as part of a system of private law that instantiates corrective justice. Contrary rules are diminished and common themes emphasized. Even when discussing discrete aspects of tort law, most modem scholars are lumpers in applying broad theoretical frameworks to fit those aspects. The most talked of aspect has been the duty concept in negligence. While the debate can be traced to the Palsgraf case, it has been given new life by the scholarship of Keating, Goldberg and Zipursky. The issue that separates these scholars derives from their views about the function of tort liability. David Fischer is a splitter. He takes present or evolving doctrines and puts them under a powerful analytical microscope for examination. In so doing, he reveals differences, internal flaws, paradoxes and problems, and revels in the complexity. David Fischer, although not without strong views about the theoretical groundings of tort law, proposes no meta-theories. Instead, he does the hard work on the inside that, in the end, uncovers the problems and dilemmas for courts as they go about their business of ascribing responsibility for wrongful acts. He is the fox of tort law

The Common Law As Cricket

Cricket and baseball are the summer national pastimes of England and America. They both involve players, one of whom propels a hard leather ball toward another with the intent of getting that other out. The hitter tries to avoid getting out and attempts to hit the ball as far as possible. Umpires preside. Despite all these and other common factors, the games are different. Baseball is brash and dusty, and umpires endure frequent abuse; cricket is restrained and village greenish, and umpires rarely suffer abuse. Both games draw from history and culture.Where transplanted the games assume a different guise. In the West Indies a Caribbean passion possesses cricket. In Central America a Latin bravado inspires baseball.Much the same can be said of the common law. To the American,cricket and English law seem confined and stodgy. Baseball and American law to the Englishman seem overwrought and brazen. A book to bridge our knowledge gap in sports has not been written. Fortunately,however, Professors Patrick S. Atiyah and Robert S. Summers have written a book that should cure us of our legal ignorance and do much to lead us to a deeper understanding of the common law. The common law is our heritage but the way it is employed differs in each country. English courts would not dare, as their American cousins have, judicially to create strict liability for defective products or to replace the defense of contributory negligence with comparative fault. These tasks are legislative. The role of the courts and their relationship with other lawmaking organs differ distinctly. This difference is a product of history, political philosophy, and culture.Professors Atiyah and Summers in Form and Substance in Anglo-American Law masterfully describe the differences in English and American law. But this work is no blind taxonomy of differences; their description is designed to validate a theory of the law. In this book comparative law informs legal theory. It is a significant contribution to modern jurisprudence

The Republican Model and Punitive Damages

Fueled by complaints of outlandish punitive damage awards and a United States Supreme Court intent on bringing constitutional order to this corner of torts damages, a considerable literation has emerged. Commentators have examined the bases for the award of punitive damages and have applied empirical analysis to probe the legitimacy of popular criticism and the extent to which punitive damages fulfill the goals assigned to them. In this essay, I propose that punitive damages should be conceptualized in light of a republican theory of tort law with the jury as its central institution. This is ironic, since influential commentators and the courts have viewed the jury as a hindrance to a rational body of law. My recommendation is that the jury needs to be strengthened in providing it with the vitality to perform its republican role

Remedies, Neutral Rules and Free Speech

In general, plaintiffs’ ability to obtain substantial damages against media defendants is directly proportional to their ability to obtain so called “publication damages.”...In future cases, the courts may be forced to deal more straightforwardly with the First Amendment issues. In Sanders, the court avoided those issues because they were not raised. As a result, the court left open the possibility that, even in an intrusion case a media defendant might be allowed to show that the invasion of privacy was “justified by the legitimate motive of gathering the news.”...Moreover, the very existence of the litigation undoubtedly has a negative impact on the press’ willingness to report on matters of public interest. Litigation is costly and few media organizations want to become embroiled in extensive and continuing litigation. As a result, cases like Food Lion, Cohen and Sanders have the potential to limit press usage of overly aggressive forms of undercover reporting

Introduction: Fourth Remedies Discussion Forum

Introduction to the articles in this section...Three of the articles provide an overview on the subject...The next two articles suggest the desirability of a historical approach to tort reform...A couple of articles focus on the problem of statutory damage and appeal bond caps...A couple of articles question the efficacy and legitimacy of prior tort reforms, both legislative and judicial...The last article in this section, Professor Michael Kelly’s What Makes the Collateral Source Rule Different?, analyzes Paul H. Rubin and Joanna M. Sheperd’s working paper on a “correlation between tort reforms and the rate of fatal accidents in the states which adopted these tort reforms.” The final two articles deal with issues relating to defamation and privacy