Some Implications of the Constitutional Privilege To Defame

In this issue of the Vanderbilt Law Review we honor an extraordinary scholar, teacher, and Dean. It is a happy circumstance that the editors have offered us this opportunity at a time when we can confidently predict that Dean Wade will continue to serve us with great distinction in years ahead. The present article concerns some pending problems in the law of defamation that have already attracted Dean Wade\u27s active interest. This seems a particularly fitting subject for inclusion in a symposium celebrating not only his distinguished past service but also a commencement incident to his release from decanal responsibility

Warning Defect: Origins, Policies, and Directions

On a spectrum from the polar extreme of generality to the opposite pole of specificity, What should warnings say? is near the extreme in its degree of generality. A question phrased this way invites a correspondingly generic response. Such a response is not very useful to the trial judge and lawyers who regularly must fashion clear explanations on the law of warning defect for layperson juries. As used here, this question is not intended as a signal inviting just any kind of response that might be acceptable under the mores of casual conversation. It is a more serious request for a very direct and substantive response. For clarification, consider these two further variations upon it: What does the law say warnings should say? What legal consequences follow if warnings do not say what the law says they should say? These questions are illustrative of the issues raised in the legal consideration of warnings and their sufficiency. The aim of this Article is to provide legal professionals with guidance on how to frame these issues

Comment

Part of the price we pay for a system wisely dedicated to even-handed justice under law is that courts often fail to identify those exceptional cases in which the highest aims of the system are served rather than threatened by a judicial break with precedent. Thus it happens that in the long, slow story of law reform, a recent case in the Illinois courts raised hopes for a rare and distinctive breakthrough. In Maki v. Frelk, responding to an invitation from the state\u27s supreme court to reexamine the well entrenched rule that contributory negligence of an injured person is a complete bar to recovery for harm negligently caused by another, the appellate court for the second district proposed to abrogate the traditional rule and establish instead a rule apportioning damages.\u27 On appeal, however, by a five-to-two decision, the Supreme Court of Illinois adhered to the old rule and suggested that if change is to come, it must come from the legislature. But since today\u27s dissenting opinion may be tomorrow\u27s judgment, Maki v. Frelk deserves to be rated not merely as an opportunity lost, but also as a step forward toward more enlightened rules on the legal effect of contributory fault. It is a small step, perhaps, but significant nonetheless