Some Reflections on the Process of Tort Reform

In this Article, Professor Rabin discusses reflections on law reform and the tort system that arose out of his involvement with the ABA Action Commission to Improve the Tort Liability System. Specifically, he examines the historical antecedents to the present tort reform movement and discusses the goals that tort reform might be taken to serve, the data on system performance, and the strategies for addressing some of the perceived malfunctions

The Duty Concept in Negligence Law: A Comment

As critics John Goldberg and Benjamin Zipursky see it, the draft version of the Restatement (Third) of Torts: General Principles (Discussion Draft) ( Discussion Draft ) that is the occasion for this Symposium has relegated the duty issue in negligence law to a relatively minor, nay-saying role. More particularly, duty is not directly mentioned by the Reporter in Section 3, which provides that [a]n actor is subject to liability for negligent conduct that is a legal cause of physical harm.\u27 And in Section 6, when the Reporter does get around to addressing the subject of duty, it is in arguably backhanded, no-duty terms: Even if the defendant\u27s negligent conduct is the legal cause of the plaintiffs harm, the plaintiff is not liable for that harm if the court determines that the defendant owes no duty to the plaintiff. Findings of no duty are unusual, and are based on judicial recognition of special problems of principle or policy that justify the with- holding of liability. So reads the black-letter. To Goldberg and Zipursky, this treatment radically understates the key role that duty plays as a determinative element in many negligence cases. In Goldberg and Zipursky\u27s view, duty is a doctrinal tool for providing affirmative content to the range of accidental harm scenarios in which causally- related unreasonable conduct leads to liability. By contrast, as they view Section 6, duty serves simply as a limiting device that sometimes kicks in to defeat liability in cases of unreasonable conduct that causes accidental harm