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Unformatted text preview: 1466 - FOCUS ON WHAT YOU DO KNOW Summary judgment – assumes everything non-asking party says to be true 3 types of torts- Intentional - ∆ acts to do something against a protected interest o Is the interest protected? o Is there justification?- Negligent - ∆ breaches reasonable standard of care o Reasonable person takes precautions to avoid harm to others o Is a duty to act owed to ∏? Was duty breached? o Causation and comparative conduct- Strict Negligence – obligation regardless of intent or fault Torts and Common Law- “It is the merit of the common law that it decides the case first and determines the principle afterwards.” – O. W. Holmes- Naming and framing o What is at stake to the parties? Real world terms o Frame it in legal terms.- Does tort law need statutory reform? o How might we challenge rules?- Judges role and policy perspective o Abide by a law that produces a just result in a particular case. o Results that are consistent with analogous cases? What makes it analogous? o Results that produce good societal effects, when generalized o Results that are compatible with or reflect the proper role of CT in society. What is of value? Redress for plaintiff or prevention of act? • How much deterrence do you need? o Reasons to define policy issues narrowly Prevent overloading of court – Instrumentalist costs Avoid trivial and frivolous claims Avoid overdeterrence - instrumentalist • Restriction on free speech o Reasons to define policy issues broadly Ensure predictability Deterrence Provide remedy to injured - noninstrumentalist- Why use reasonableness standard? o Deterrent against imprudence – Dr. should make sure patient consents o What about unreasonable people? Children, mental disability- Issues of law v. issues of fact o Law – decided by judges o Fact – decided by jury – immune to appeal Instrumentalism and Noninstrumentalism- Instrumentalism o Rules as a means to achieve a social goal Don’t want to overreach • Impacts on future society o Rules as means to an end o Prevention of future suits, reductions of transaction costs Worried about over-deterrence from excessive punishments 1 o Law and Economics - Efficient use of resources Choices include cost • Correct choices maximize social wealth • Tort law reallocates resources when wrong choice is made o Encourages right choices Proper distribution of costs – product liability 3 types of cost • Injury • Costs after injury • Transactional costs- Noninstrumentalism o Punishing wrongdoers o Focus on facts and parties o Issues of fairness Punishment related to degree of wrongdoing o Issues of non-monetary harm Intentional Torts A. Intent or recklessness a. Intent – desire or knowledge to a substantial certainty i. Lawful?...
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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.
- Fall '05
- The Land