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Tort Outline 1

Tort Outline 1 - Torts Outline Fall 2007 Jesse Huang...

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Torts Outline Fall 2007 – Jesse Huang History and Purpose of Tort Law Tort law o State law o No federal common law of torts o But there is federal tort statutes Restatement of Tort Law o Synthesis of all the states law o Old fashioned approach to learning/understanding law o Of less value? Too general and oversimplified? Torts Remedies: o Civil wrongs o Monetary damages instead of injunctions, etc. o Some torts are better served by injunction (nuisance) Specific v General Deterrence o Specific person versus general public deterred from wrong Problem of tort law o Remedy not necessarily restore the victim as if they were fresh Deterrence and tort o General deterrence: Organization's actions are changed as a result (i.e. hospital) o Tort law, damages mostly not specific relief Information asymmetry - Torts and Contracts o Implied warrantee - Product is merchantable, baseline obligation/"unconscienibility" Product liability prior to 1963 largely contract, now mostly tort Monetary compensation for nonpecuniary loss, except for: o Special damages: Medical damages, loss wages Functional goals: o Compensation o Deterrence, general and specific Who gets sued? o Medical: areas of practice with sickest patients, practice where expectation is good (obgyn) Punitive damages o Mental state instruction Not only negligence, but intent/reckless disregard/etc o Not easy to come by, except product liability cases o Creates a bridge between the savings companies originally estimated and damages suffered Ex:McDonalds Hot Coffee Cases More efficient to pay tort damages than to make changes to equipment, but that calculation was mistaken Corrective justice v economic efficiency approach Class action lawsuits 1
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Torts Outline Fall 2007 – Jesse Huang o Difficult to bring in PI because individual people's injuries are all different (too many variables to consider) o Instead P's attorneys look for a good plaintiff: someone with high earning trajectory (opposite for D) Accelerate good cases for D (no stall tactics), slow down bad cases for D o Different jurisdiction have different inclinations Most PL cases don't go to trial (only about 2 percent do) Asbestos cases solution: stall tactics, awaiting federal bailout, when bailout didn't come, the industry then goes bankrupt, claims worth pennies on the dollar Administrative cases for tort case is very high o Tort lawyers extract a high cost from compensation o Is this an efficient Getting legal aid in tort: o Contingency fee system - 30-40% fee o P's attorney fronts cost if case is lost o Settlement is part of contingency Nusiance law suits: When administrative costs exceed settlement, then it is more prudent to settle Changes to tort law o Breach of promise to marry and seduction were torts in 19th cen. o
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Tort Outline 1 - Torts Outline Fall 2007 Jesse Huang...

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