Torts- Calhoun- Fall 2004- Lyman

Torts- Calhoun- Fall 2004- Lyman - 1466 FOCUS ON WHAT YOU...

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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
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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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