Torts Fall 2020 Attack Outline.docx - Torts Fall 2020 Attack Outline Doriane Coleman BACKGROUND I Fault Continuum Less Mental Fault-|-More Mental Fault

Torts Fall 2020 Attack Outline.docx - Torts Fall 2020...

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Torts Fall 2020 Attack Outline Doriane Coleman BACKGROUND I. Fault Continuum Less Mental Fault------------------------------------|-----------------------------------------More Mental Fault Strict Liability------------------------Negligence-------------Recklessness------------------ Intentional Torts Abnormally Dangerous Activities with absolute fault unreasonable mistake/accident/ careless and unreasonable behavior No way of knowing ------could not have known -----------should have known---------did know------------------------desired it --------------------------planned it II. Practical and Theoretical Rationales 1 st Principles of Tort Law o Compensation of Victims Chief reason for tort law. Acts as a measure of compensation when only someone’s own resources, charity,, and government help exists otherwise o Deterrence of crimes/wrongs Ex ante behavior regulation – you can take risks outside of reasonable behavior, but you have to consider the cost of doing so o Stopping Self-Help Damages awarded in torts: o Compensatory Damages Compensate for losses, most common o Nominal / Dignitary Symbolic recognition of a wrong where there might not be an injury to compensate for o Punitive Damages To punish III. From Strict Liability to Liability Based on Mental Fault Evolution of US Tort Law o 2 Major Moves: Common law Hybrid System Strict Liability Mental Fault System 1
A. Increasing Role of Legislatures Moved from being a body of law that was almost exclusively judge- made in case law to a body of law that is a hybrid of case law and legislative law o Statutes of incorporation – incorporate the generalities of English Common Law into Statutes of the US legal system o See increasing role of tort reform and legislatures increasingly abrogating the common law B.From Strict Liability to Liability Based on Mental Fault Moved from a focus on strict liability (mental fault not important) to a system based on mental rather than causal fault (now focus on negligence and intentional torts) o Strict Liability – don’t care about the mental motivation of the actor – only care that they acted in a way to cause injury o Every tort used to be a trespass with a 3 step PF (Act, Causation, Injury) Law came to prefer liability based on mental fault than causality C. The Tort System’s Ability to Deal with Large, Systemic Problems The tort system is not good at dealing with large cases and systemic problems Cases involving a lot of plaintiffs, defendants that are “too big too fail,” sensitive issues, etc. are awkwardly dealt with see rise of alternative compensation systems o Funds o Multi-District Litigation o Aggregate Litigation Schemes IV. Threshold Issues Affecting the Viability of Claims 3 main threshold issues that determine if a case will be brought o Collectability o Vicarious Liability o Immunities A. The Contingency Fee and Collectability Contingency Fee – lawyer will only be paid if the plaintiff wins and the fee is a percentage of the recovery o Leads lawyers to consider the likelihood of success - a case is only collectible if the plaintiff can make out all of the prima facie Also consider the damages and whether the compensation for those losses are collectible 2

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