Comparative Torts

Code vs. judge-made common law
"Without doubt . . . the judges do not make law, but only apply it. But in that function the courts play, and have played since the promulgation of the 'code civil' a considerable role. (a) They have given to the law precision . . . (b) they have filled the gaps . . . (c) they have adapted the texts of the code to modern needs . . . (d) they have preceded and prepared the way for legislative development."
Codification and Judge-Made Law: A Problem ofCoexistence 
Leslie George Scarman, Law Commission of England (1967)

China:Tort Law (2009)
A New Tort Code Emerges in China (Conk, Fordham Int'l L.J. 2007)
Chinese Journal of Comparative Law (Oxford)
Stanford - China Guiding Cases Project- Supreme Peoples Court

Comparative Torts Syllabus First rough draft December 19, 2014

George Conk

Each student will be designated as an 'expert' for some country other than the United States for the course of the semester, responsible for reading all materials posted on the resource pages and otherwise familiarizing yourself with your country’s law on the topics for each week, coming to class prepared to contribute to the discussion. You may cooperate with other “compatriots”.

Please come to the first class with at least two countries in mind for which you might like to be a designated expert.  One must be your native country!
Please come to each  class prepared to describe how the foreign country for which you are a designated expert deals with the topic assigned for that class.  I expect you will also be prepared to contribute to the discussion regarding your native country.

[1]  Tort law in the overall legal system.
 Tort law's goals. Tort & contract law.   Tort & criminal law. Tort and insurance.
3rd Restatement of Torts (excerpts); 3rd Restatement - Liability Insurance (excerpts)
China - Tort Law (2009); Contract Law; Fleming - Tort law (Commonwealth); Mo Zhang - China Torts Law (introduction)

[2] Litigation
Burden of proof - preponderance, circumstantial evidence (res ipsa loquitur), clear and convincing evidence
data and procedures. USA tort litigation data. China tort litigation data
Questions of Law and fact (judge vs. jury)
Litigation process. Gathering evidence - inquisitorial vs. adversary.
FRCvP - discovery and exchange of information

U.S- 3rd Restatement of Torts (excerpts)

Swiss Code art. 53; Thai Brazil Criminal-Civil.  Norway

[3] Remedies.
U.S. (3rd Restatement -compensatory, punitive, injunctive - nuisance, trademark and IP infringement) ; China Tort Law (excerpts)
Germany vs. US. Brazil damages. Polish Civil Code art. 440. United States punitive. Europe punitive.

[4] Liability rules: sources of law, doctrinal structure, interests protected.
USA - elements of tort of negligence. The structure of a tort claim.
Tort liability systems. French tort code; French core. German tort code. German core. Brazil core. China - Tort Law (2009); China - Environmental Protection Law (2014).  Poland tort code. Swedish tort law.

[5] Tortious conduct.
Negligent, Reckless and Intentional conduct Intent: significance, meaning.
China, U.S., German BGB §§ 823, 826 to 829.
Contributory and comparative negligence [NY CPLR 14.11, 14.12;  Uniform Comparative Fault Act; China Tort Law]

[6] Negligence: factors and weighting.
Hand formula. 3rd Restatement; China Tort Law Sweden. Nonfeasance: Duty to aid/rescue.  United States. Europe. China.

[7]  Product liability.
United States (§402A - 2d Restatement; Product Liability Restatement§§ 1, 2, 3, 4,5,6, 7;Escola v. Coca Cola (CA); Barker v. Lull Engineering (CA); Wyeth v. Levine (U.S.)
European Product Liability Directive; France art. 1386. China Product Quality Law.   China Tort Liability Law ch. 5.; Shanghai Product Quality Law; Germany

[8] Strict liability: neighbors. Common law.
Rylands v. Fletcher (England)
Ventron v. Dept.. of Environmental Protection (NJ)
Shugerman - Rylands in the U.S.(Yale L.J.)

[9]  Strict liability
for dangerous activities: animals, automobiles, buildings, oil spills, etc.
 Common law. Restatement Torts 3rd, French Code arts. 1384-1386. German Code sections 833-838. Poland code arts. 431-437. China Code chs VI, VIII-XI, China Environmental and Maritime Environmental Protection Laws; China Road Traffic Safety Law arts 17, 74-76.

Oil Pollution Act (U.S.); Maritime Environmental Protection Law (China); Interpretation regarding maritime oil spills - Supreme People’s court - P.R.C. (2010)
A.vs. National Blood Authority (England)

[10]  Factual causation.
Nature of causation; Proof and uncertainty.
But for, substantial factor, concurrent causes
Competent Evidence -Daubert v. Merrell Dow Pharmaceuticals; Cooper v. Kumho Tire; 3rd Restatement §28, comment C

[11]  "Legal" causation (scope of liability).
 Common law.  Foreseeable risk limitation.  Civil law.
3rd Restatement; Polemis; Palsgraf v. LIRR; Wagon Mound; China Tort Law; XiYang Yang (cartoon plot imitation case)
Wagon Mound

[12] Liability for acts of others
Allocation of liability among multiple responsible causes. Defenses.  Joint liability. Vicarious liability (respondeat superior, seller’s vicarious liability for product defect-related injury).  Independent contractors.  Guardians.
Employer liability (UK); Independent contractors; Workers compensation bar and liens against third party tortfeasors); `Hostile environment’ claims by employees

[13] Punitive damages
Philip Morris USA; NJ Punitive Damages Act; China - consumer protection law
Vincent Johnson - Punitive Damages in China (Johnson - Oxford Journal of Chinese Comparative Law)

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