24 research outputs found

    Federal Preemption of State Tort Claims

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    This article explores a continuing disagreement among Justices of the United States Supreme Court regarding the proper doctrinal framework for federal preemption jurisprudence. This important difference in views became apparent in the four federal preemption cases that the Supreme Court decided during its 1999-2000 term. The article describes this critical disagreement among the Justices, places it in the larger context of preemption doctrine, and then carefully analyzes a number of possible resolutions. Federal preemption is an area of enormous practical and theoretical importance. It is a subject that has earned a regular place on the Supreme Court\u27s docket for many years now. It is also a constitutional law doctrine that has special importance for tort law. Indeed, the principal case analyzed in this article, Geier v. American Honda Motor Company, addresses the question of whether a products liability claim brought in state court was preempted by certain provisions of The National Traffic and Motor Safety Act of 1966. It is a five-to-four decision featuring a spirited split among members of the Court regarding fundamental aspects of preemption analysis and it remains today an important precedent in the area of federal preemption

    The Curious Case of Tort Liability For A Defective Product That The Defendant Did Not Make, Sell, Or Distribute

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    Rarely does the United States Supreme Court consider and decide an issue of tort law, especially one that does not implicate any aspect of federal constitutional law. The problem of bare-metal equipment is just such an issue, taken up and addressed by the U.S. Supreme Court less than three years ago in the case of Air and Liquid Systems Corp. v. DeVries. Despite the Court’s opinion, the question continues to generate different responses from state courts and fails to enjoy much accord or consensus at the state-law level, where it has the greatest practical impact. The problem presented to the courts by bare-metal equipment is determining under what circumstances the manufacturer or seller of a product that is reasonably safe at the time of sale, and then made unreasonably unsafe by the post-sale addition of defective parts manufactured and supplied by third parties, may be liable to a person injured by that combined equipment. Upon examination, this turns out to be a more difficult and subtle problem than it may first appear. Especially for courts not accustomed to analyzing products liability issues, there can be a temptation to analyze the problem somewhat casually—thereby failing to securely situate it within the specific and quite different doctrinal frameworks in which it can arise. Some federal courts, including the U.S. Supreme Court, have yielded to that temptation. As a result, these courts have not sufficiently appreciated that this issue presents very different conceptual challenges and requires dramatically different consideration and analysis, depending on whether it arises in the context of a negligence claim or in the context of a strict products liability claim. Failure to appreciate the different nature of the problem in the context of these two quite different causes of action has led some courts, including the U.S. Supreme Court, to offer a single, univocal approach to this problem that both oversimplifies and overcomplicates the matter. Specifically in the case of the U.S. Supreme Court, its holding, opposed by a vigorous dissent, produces a set of rules that are at the same time both inconsequential in the negligence context and conceptually incoherent in the context of a strict products liability claim. This article describes and analyzes this fascinating issue, including the recent U.S. Supreme Court decision which squarely addresses it. It proposes an approach to future consideration of the problem by courts that grounds the analysis in the specific doctrinal frameworks within which the issue may arise and explains the very different qualities and challenges that the issue presents in these different doctrinal contexts

    The Dualist Model of Legal Teaching and Scholarship

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    It is not the purpose of this Article to evaluate the accuracy of the claim that teaching and research can be mutually supportive functions. Instead, the following analysis focuses on an aspect of the current situation which has been given much less attention, the costs to both legal scholarship and to law school teaching that result from the predominant dualist model. Identifying and examining some of these costs is important because even if it were established conclusively that legal research and teaching are mutually supportive pursuits, the desirability of the dualist model ultimately depends upon a balancing of the benefits with the corresponding costs of the model. In order to facilitate an understanding of these effects, Part I of this Article examines the costs that the dualist model imposes on law school professors\u27 teaching function. Part II focuses on the costs imposed by the dualist model on legal scholarship. Part III notes the existence of signs of increasing stress in this system. The analysis then turns, in Part IV, to a consideration of some of the reasons why the dualist model has remained so resilient in the face of these recognized costs and increasing signs of dysfunction. The assessment set forth in Part IV suggests that the strength and longevity of the dualist model is due largely to the fact that the model satisfies important bureaucratic needs of law schools that are not satisfied easily in any other way. Part V proposes an alternative, the dedicated- track model, whereby law school faculty members may choose to teach full-time, research and write full-time, or teach and research, and examines the potential costs and benefits of such a model. This Article concludes that once problems involved in the qualitative evaluation of law school teaching are resolved, law schools can consider alternatives to the dualist model in order to remove the limitations currently imposed on teaching and legal scholarship

    The Dualist Model of Legal Teaching and Scholarship

    Get PDF
    It is not the purpose of this Article to evaluate the accuracy of the claim that teaching and research can be mutually supportive functions. Instead, the following analysis focuses on an aspect of the current situation which has been given much less attention, the costs to both legal scholarship and to law school teaching that result from the predominant dualist model. Identifying and examining some of these costs is important because even if it were established conclusively that legal research and teaching are mutually supportive pursuits, the desirability of the dualist model ultimately depends upon a balancing of the benefits with the corresponding costs of the model. In order to facilitate an understanding of these effects, Part I of this Article examines the costs that the dualist model imposes on law school professors\u27 teaching function. Part II focuses on the costs imposed by the dualist model on legal scholarship. Part III notes the existence of signs of increasing stress in this system. The analysis then turns, in Part IV, to a consideration of some of the reasons why the dualist model has remained so resilient in the face of these recognized costs and increasing signs of dysfunction. The assessment set forth in Part IV suggests that the strength and longevity of the dualist model is due largely to the fact that the model satisfies important bureaucratic needs of law schools that are not satisfied easily in any other way. Part V proposes an alternative, the dedicated- track model, whereby law school faculty members may choose to teach full-time, research and write full-time, or teach and research, and examines the potential costs and benefits of such a model. This Article concludes that once problems involved in the qualitative evaluation of law school teaching are resolved, law schools can consider alternatives to the dualist model in order to remove the limitations currently imposed on teaching and legal scholarship

    Federal Preemption of State Tort Claims

    Get PDF
    This article explores a continuing disagreement among Justices of the United States Supreme Court regarding the proper doctrinal framework for federal preemption jurisprudence. This important difference in views became apparent in the four federal preemption cases that the Supreme Court decided during its 1999-2000 term. The article describes this critical disagreement among the Justices, places it in the larger context of preemption doctrine, and then carefully analyzes a number of possible resolutions. Federal preemption is an area of enormous practical and theoretical importance. It is a subject that has earned a regular place on the Supreme Court\u27s docket for many years now. It is also a constitutional law doctrine that has special importance for tort law. Indeed, the principal case analyzed in this article, Geier v. American Honda Motor Company, addresses the question of whether a products liability claim brought in state court was preempted by certain provisions of The National Traffic and Motor Safety Act of 1966. It is a five-to-four decision featuring a spirited split among members of the Court regarding fundamental aspects of preemption analysis and it remains today an important precedent in the area of federal preemption

    Reflections on the Nature of Legal Scholarship in the Post-Realist Era

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    This article presents a tightly organized and closely reasoned analysis of legal scholarship in the current post-realist era. Secure and well-defined within the formalist legal world of the nineteenth century, the practice of legal scholarship has been profoundly affected by the realist revolution of the early twentieth century and the instrumentalist view of law that now prevails in the twenty-first century. In response, legal scholars have been forced to dramatically alter the focus, the materials and the basic methods of their study. The practice of legal scholarship is currently occupied in a prolonged struggle to adapt to these changes and to again find for itself a coherent and meaningful place in both the legal and the university communities. Legal scholarship that describes, but that does not attempt to explain, existing legal doctrine can continue to operate under instrumentalism much as it did before, but it can be expected to, and in fact it has, experienced a significant decrease in the prestige that it enjoys. Descriptive legal scholarship that attempts to explain the current substance of legal doctrine from a dominantly realist perspective, or that offers explanations for the substance of legal rules that are overly cynical, even if factually true, faces the problem of being viewed as offering little of practical value to judges and to the practicing bar. This has led to the enormous popularity among legal scholars of a kind of second-order descriptive scholarship that attempts to depict existing doctrinal law as the expression of an underlying, even if wholly unarticulated, set of social goals or principles. This article discusses the qualities and various characteristics of this approach within an instrumentalist paradigm. The article also considers the nature of normative legal analysis in the current post-realist environment. The role of normative analysis in a formalist world is described, as are attempts to retain the attractive features of that traditional role in the current period by the adoption of quasi-formalist approaches to normative work. The article also identifies the most fundamental challenge posed to normative legal scholarship by the widespread adoption of an instrumentalist view of law, the need to move beyond the materials typically available in a law library and to analyze the likely practical consequences of different versions of legal doctrine to the relevant regulated community. Current strong trends towards interdisciplinary and empirical legal scholarship are understood as logical responses to this challenge, though each are shown to face significant obstacles as they seek to flourish at professional schools of law operating within a modern university setting

    The International Legal Environment for Serious Political Reporting has Fundamentally Changed: Understanding the Revolutionary New Era of English Defamation Law

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    On October 11, 2006, Britain\u27s highest court, the House of Lords, issued a blockbuster ruling that completely changed the landscape of libel law and press freedoms in the United Kingdom. The Times of London described the case, Jameel v. Wall Street Journal, as, a judgment that lawyers predict will usher in a new era of journalism. Given England\u27s reputation as an attractive jurisdiction for defamation plaintiffs and a frequent destination for libel tourism, this case is likely to alter the environment for serious political journalism throughout Europe and North America. This article carefully describes the case, including its key holdings and the important changes that it makes to traditional British libel law. It then goes on to analyze the doctrine of qualified privilege that emerges from the decision and to compare it to the constitutional protections from defamation liability that have been developed in the United States beginning with the U.S. Supreme Court case of New York Times v. Sullivan in 1964. The critical role that the fourth estate rationale plays in both approaches is discussed. Important differences in both the doctrinal definition of protected speech and the mechanism of protection employed in England and the United States are recognized and evaluated. Fundamental trade-offs inherent in the crafting of special protection from defamation liability for highly-valued speech are identified and applied to the approaches adopted in the United States and in Jameel. Finally, the article offers some suggestions on the likely future development of the qualified privilege doctrine in Great Britain

    Innocent Threats, Concealed Consent and the Necessary Presence of Strict Liability in Traditional Fault-Based Tort Law

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    This article identifies and carefully analyzes the use in tort law of what is termed unilateral and bilateral legal analysis. Unilateral, or one-party, analysis involves the design of legal doctrine that is focused on the characteristics or status of a single legal person. It is traditionally associated with criminal law, where the doctrinal attention is tightly focused on the criminal defendant. Inquiry may be made regarding the nature and degree of harm suffered by the victim, or whether the victim agreed to the harm producing act, but these considerations are generally relevant only to the degree that they shed light on the culpability of the criminal defendant. Tort law employs this classic one-party analysis when it determines whether the intent element is satisfied for any of the intentional torts, and when it examines whether or not the defendant in a negligence action has breached the duty of care.As useful as it is in some critical areas of tort law, unilateral analysis fails to generate doctrine that handles properly other important tort law issues. One such area is the privilege of consent. Another is the privilege of self-defense. Both of these tort law problems require for their satisfactory resolution the deployment of classic bilateral, or two-party, analysis of the sort that is traditionally associated with contract law.After fully exploring the necessary blending of unilateral and bilateral analysis, the article goes on to identify a second kind of bilateral analysis that is present in tort law. This type of two-party analysis must deal with situations in which the normally harmonious goals of compensation and deterrence come into conflict. The nature of this problem and its resolution is illustrated across a number of recurring factual situations in torts, including the problem of subjective consent in the absence of objective consent and the problem of reasonable self-defense in response to an innocently generated threat.In the final section of the article, the conflict between compensation and deterrence is shown to shape a bilateral analysis that does not always withhold liability but that instead sometimes results in liability being imposed on a defendant who has not acted in an undesirable, antisocial manner. This element of strict liability is shown to exist within the very heart of what is thought to be traditional, fault-based intentional tort law

    Innocent Threats, Concealed Consent, and the Necessary Presence of Strict Liability in Traditional Fault-Based Tort Law

    Get PDF
    This article identifies and carefully analyzes the use in tort law of what is termed unilateral and bilateral legal analysis. Unilateral, or one-party, analysis involves the design of legal doctrine that is focused on the characteristics or status of a single legal person. It is traditionally associated with criminal law, where the doctrinal attention is tightly focused on the criminal defendant. Inquiry may be made regarding the nature and degree of harm suffered by the victim, or whether the victim agreed to the harm producing act, but these considerations are generally relevant only to the degree that they shed light on the culpability of the criminal defendant. Tort law employs this classic one-party analysis when it determines whether the intent element is satisfied for any of the intentional torts, and when it examines whether or not the defendant in a negligence action has breached the duty of care. As useful as it is in some critical areas of tort law, unilateral analysis fails to generate doctrine that handles properly other important tort law issues. One such area is the privilege of consent. Another is the privilege of self-defense. Both of these tort law problems require for their satisfactory resolution the deployment of classic bilateral, or two-party, analysis of the sort that is traditionally associated with contract law. After fully exploring the necessary blending of unilateral and bilateral analysis, the article goes on to identify a second kind of bilateral analysis that is present in tort law. This type of two-party analysis must deal with situations in which the normally harmonious goals of compensation and deterrence come into conflict. The nature of this problem and its resolution is illustrated across a number of recurring factual situations in torts, including the problem of subjective consent in the absence of objective consent and the problem of reasonable self-defense in response to an innocently generated threat. In the final section of the article, the conflict between compensation and deterrence is shown to shape a bilateral analysis that does not always withhold liability but that instead sometimes results in liability being imposed on a defendant who has not acted in an undesirable, antisocial manner. This element of strict liability is shown to exist within the very heart of what is thought to be traditional, fault-based intentional tort law

    The Curious Case of Tort Liability for a Defective Product That the Defendant Did Not Make, Sell, or Distribute

    Get PDF
    Rarely does the United States Supreme Court consider and decide an issue of tort law, especially one that does not implicate any aspect of federal constitutional law. The problem of bare-metal equipment is just such an issue, taken up and addressed by the U.S. Supreme Court less than three years ago in the case of Air and Liquid Systems Corp. v. DeVries. Despite the Court’s opinion, the question continues to generate different responses from state courts and fails to enjoy much accord or consensus at the state-law level, where it has the greatest practical impact. The problem presented to the courts by bare-metal equipment is determining under what circumstances the manufacturer or seller of a product that is reasonably safe at the time of sale, and then made unreasonably unsafe by the post-sale addition of defective parts manufactured and supplied by third parties, may be liable to a person injured by that combined equipment. Upon examination, this turns out to be a more difficult and subtle problem than it may first appear. Especially for courts not accustomed to analyzing products liability issues, there can be a temptation to analyze the problem somewhat casually—thereby failing to securely situate it within the specific and quite different doctrinal frameworks in which it can arise. Some federal courts, including the U.S. Supreme Court, have yielded to that temptation. As a result, these courts have not sufficiently appreciated that this issue presents very different conceptual challenges and requires dramatically different consideration and analysis, depending on whether it arises in the context of a negligence claim or in the context of a strict products liability claim. Failure to appreciate the different nature of the problem in the context of these two quite different causes of action has led some courts, including the U.S. Supreme Court, to offer a single, univocal approach to this problem that both oversimplifies and overcomplicates the matter. Specifically in the case of the U.S. Supreme Court, its holding, opposed by a vigorous dissent, produces a set of rules that are at the same time both inconsequential in the negligence context and conceptually incoherent in the context of a strict products liability claim. This article describes and analyzes this fascinating issue, including the recent U.S. Supreme Court decision which squarely addresses it. It proposes an approach to future consideration of the problem by courts that grounds the analysis in the specific doctrinal frameworks within which the issue may arise and explains the very different qualities and challenges that the issue presents in these different doctrinal contexts
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