TORTS TODAY - course materials & news for Torts, Business Torts, Product Liability, and Remedies students of George Conk at Fordham Law School gconk@law.fordham.edu
Robin Rogers and her nearly full term baby died from a tube mix-up.
As we consider the "new negligence," it may be useful to set the record straight on the thinking of the last century, one that is growing distant more rapidly than the calendar would suggest. This Article undertakes that task by analyzing five idealized theories representing the dominant approaches to tort law in twentieth-century U.S. and Canadian scholarship. The five are labeled: compensation-deterrence theory, enterprise liability theory, economic deterrence theory, social justice theory, and individual justice theory. Specific disputes in modern tort law--for example, whether to hold actors liable for accidental harms under a standard of fault or strict liability--have taken place within the conceptual space created by these theories.
In an ordered society, one purpose of the law, particularly the common law of torts, is to provide a corrective mechanism for injustice. ..See W. Page Keeton et. al., Prosser and Keeton on Torts (5th ed.1984) supra, at 15. Common law claims must keep step with the schemes of those who would unfairly profit at the expense of others. It is our responsibility to ensure that formalistic distinctions and outdated definitions do not thwart justice. Rather, we must mold the common law to the unanticipated injustices that inevitably arise as our society advances through time. Our duty is "[t]o sustain, to repair, to beautify this noble pile" that is the common law. 4 William Blackstone, Commentaries on the Law of England 436 (1765-69).
THE more effectually to accomplish the redress of private injuries, courts of justice are instituted in every civilized society, in order to protect the weak from the insults of the stronger, by expounding and enforcing those laws, by which rights are defined, and wrongs prohibited. This remedy is therefore principally to be sought by application to these courts of justice; that is, by civil suit or action. For which reason our chief employment in this volume will be to consider the redress of private wrongs, by suit or action in courts.
When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts
From this survey of the decisions, there thus emerges a definition of the duty of a manufacturer which enables us to measure this defendant's liability. Beyond all question, the nature of an automobile gives warning of probable danger if its construction is defective. This automobile was designed to go fifty miles an hour. Unless its wheels were sound and strong, injury was almost certain. It was as much a thing of danger as a defective engine for a railroad. The defendant knew the danger. It knew also that the car would be used by persons other than the buyer. This was apparent from its size; there were seats for three persons.
It was apparent also from the fact that the buyer was a dealer in cars, who bought to resell. The maker of this car supplied it for the use of purchasers from the dealer just as plainly as the contractor in Devlin v. Smith supplied the scaffold for use by the servants of the owner. The dealer was indeed the one person of whom it might be said with some approach to certainty that by him the car would not be used. Yet the defendant would have us say that he was the one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a conclusion. Precedents drawn from the days of travel by stage coach do not fit the conditions of travel to-day. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be.A living tradition:
I am not an accomplished lawyer. I find quite as much material for a lecture in those points wherein I have failed, as in those wherein I have been moderately successful. The leading rule for the lawyer, as for the man of every other calling, is diligence.
Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done. When you bring a common-law suit, if you have the facts for doing so, write the declaration at once. If a law point be involved, examine the books, and note the authority you rely on upon the declaration itself, where you are sure to find it when wanted. The same of defenses and pleas. In business not likely to be litigated, -- ordinary collection cases, foreclosures, partitions, and the like, -- make all examinations of titles, and note them, and even draft orders and decrees in advance.
This course has a triple advantage; it avoids omissions and neglect, saves your labor when once done, performs the labor out of court when you have leisure, rather than in court when you have not.
Extemporaneous speaking should be practised and cultivated. It is the lawyer's avenue to the public. However able and faithful he may be in other respects, people are slow to bring him business if he cannot make a speech. And yet there is not a more fatal error to young lawyers than relying too much on speech-making. If any one, upon his rare powers of speaking, shall claim an exemption from the drudgery of the law, his case is a failure in advance.
