Vangilder Torts Outline F06- Calhoun

Vangilder Torts Outline F06- Calhoun - TORTS OUTLINE Prof....

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TORTS OUTLINE VanGilder 1 Prof. Calhoun Taking Calhoun’s Exams STEP 1: Scan all problems and ID major topics, then zoom in STEP 2: Read problem once, take notes in margins STEP 3: Rewrite Q as first sentence STEP 4: List the elements STEP 5: Briefly dismiss elements not of significance STEP 6: There is no right answer—present ALL sides STEP 7: Justify all arguments with POLICY STEP 8: Finish with a recommendation or prediction Focus on parties in Q Answer the question, including ALL multiple parts, and using the facts from the Q Discuss the rule itself and policy pros/cons Miscellaneous A. Objectives of tort law 1. Common law compensation for victims’ injuries a. Alternatives: workman’s compensation, statutes, government organizations, private insurance, no fault regimes 2. What’s at stake for MY CLIENT is on the side of PUBLIC POLICY 3. Instrumentalist: frames justifications for tort law in terms of aggregate interests and maximizing societal usefulness a. End goal: tort law should assign costs to the right party to send a message and provide an incentive to behave properly—looks at long term consequences in society b. Calabresi’s goal is to reduce three costs (p. 848) 1) Primary: reduce the number and severity of accidents (forbid acts or make dangerous activities expensive and thereby less attractive) 2) Secondary: costs of adjusting to an injury—specific deterrence (against a P or D) 3) Transactional: costs of the judicial system—general deterrence (within the aggregate) c. Posner: torts “involve a coerced transfer of wealth to the defendant in a setting of low transaction costs” 4. Non-Instrumentalist: focuses on morality, fairness, punish wrongdoer, and justice for the parties involved—broad social impacts are for the legislature B. Terms 1. Knowledge: firsthand (feel rain drops) 2. Reason to know: secondhand (see raincoat) 3. Should have known: foreseeability/reasonable persons standard (watched forecast) a. Common sense based on contextual factors b. Circumstantial evidence suggests an obvious conclusion C. Interpretations of case law 1. Narrow (RULES): highly differentiated standards prevent overloading of a court docket, avoid frivolous claims, and avoid over-deterrence a. Often used in motions to dismiss 2. Broad (STANDARDS): highly aggregated and generalized rules provide predictability, deterrence, and fair compensation for damage a. Questions and arguments of standard are too open ended and general not to go to a jury NON-FRIVOLOUS CLAIMS: Battery IIED Negligence (specific to action) NIED Strict liability for mfg defect Strict liability for design defect Strict liability for marketing defect (failure to warn)
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TORTS OUTLINE VanGilder 2 Prof. Calhoun D. PERSONAL RESPONSIBILITY —Our current Tort system strives to appropriately assign personal responsibility so as to achieve fairness, justice, economic efficiency, and social goals. The fact that our tort system waivers between strict rules and standards demonstrates the varying opinions on personal
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This note was uploaded on 02/12/2008 for the course LAW 5425 taught by Professor Schlag during the Fall '05 term at Colorado.

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Vangilder Torts Outline F06- Calhoun - TORTS OUTLINE Prof....

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