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RonMazorFirstPaper 14 - 06 Apr 2010 - Main.EbenMoglen
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| | | An injury creates a grievance. Under negligence, we are occasionally leaving injured parties to suffer--grievance unsatisfied--while the perpetrator of the injury is excused for having taken insufficient precautions. This is not right.
Ultimately, tort is about harm. As such, strict liability is the proper way to assess tort--what matters is the result, not the thought process.
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>
> | This essay is confused
where it could be clear, and clear where it should be more aware of
complexity. The idea of strict liability as the primitive standard
from which "modern" negligence systems diverge is ahistorical, no
matter what your timescale is. For the history of the common law, it
is largely but not entirely myth. In every locale, the proposition
depends in part on absence of evidence about administration. Some
formal source tells us that an injury of a certain type (running
someone over with a horse-drawn vehicle, for example) must be paid
for at a certain rate. But unless we know everything about the
details of administration, we do not know at what stage of the
process it may be possible for a defendant to say "But the horse was
frightened by lightning and bolted," or what will happen if he does.
As Toby Milsom pointed out a generation ago, the medieval English law
of accident is entirely obscure to us because we have only records of
pleading in Westminster Hall, not the substance of what trial
evidence was like, how juries were charged, and what they decided.
Beyond the blank pleading of the general issue and eventual "postea"
recording an equally blank jury verdict, we can have no idea whether
"unavoidable accident" was a defense, or how it fared under different
factual circumstances. Not to mention the different classes of
injury characteristic of human-powered and steam-powered
societies....
The littlest Coasean in the house can show without breaking a sweat
that the only difference between strict liability and negligence
regimes is transactions costs. Hence
Guido Calabresi's wonderfully original argument in _The Cost of
Accidents_ (a book that people used to read when I was young,
apparently under the impression that Guido's idea hadn't been had a
hundred years earlier by Holmes) that the optimal tort system is
strict liability appropriately imposed on the party who could avoid
the accident at lowest cost. You have reinvented Guido's idea
without the subtleties. But we do not live in a system without
friction, and so the real point, as Coase himself (not so little as
his admirers) articulated in his Nobel Prize address, is to make an
exhaustive study of the transactions costs. So far as your essay's
argument goes—with all the overworked nonsense about children's
legs destroyed by batted balls reduced, as it should be, to the
necessary minimum—strict liability is just a
litigation-intensive substitute for universal health insurance, which
does much more and wastes much less. Dealing with harm directly,
rather than treating it as the fault of a faultless party with a
nearby pocket, makes more sense.
And then, of course, the whole point of the exercise is to assume
away causation, which in a strict liability system becomes the black
hole. When several parties, including the plaintiff, have all
contributed to an injurious outcome, all the social ready reckoning
that used to be involved in determination of relative fault shifts
the permanent floating crap game over to determination of causation
and resumes play. Some slight experience with the confusions
inherent in causation doctrine should have convinced you that all the
phenomena you object to in disputes about negligence can be
reformulated there, and will be once it's the only game in town.
You could then, no doubt, offer a dashingly irresponsible essay,
suggesting that we impose damages liability on those who were not at
fault and did not cause the harm, just because. As my distinguished
colleague Victor Goldberg might say, "Find a guy who at least looks
like the tort-feasor, and shoot him." This too, it turns out, is a
very efficient system.
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RonMazorFirstPaper 13 - 28 Feb 2010 - Main.RonMazor
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| | | The Middle Ages Had It Right | |
<
< | Medieval law gets a short shrift. Too often, it is reduced to some primitive, bloody, superstitious, and inherently unjust monstrosity--a dark age of ordeals and inquisitions. Having majored in medieval history, such simplistic reductions are tiresome. Monty Python isn't an accurate secondary source, and law professors should know better. Especially those who teach tort. | >
> | Medieval law gets a short shrift. Too often, it is reduced to some primitive, bloody, superstitious, and inherently unjust monstrosity--a dark age of ordeals and inquisitions. Such simplistic reductions are tiresome. Monty Python isn't an accurate secondary source, and law professors should know better. Especially those who teach tort. | | | | |
<
< | If they were more familiar with medieval tort, they'd know it captures law at an essential level. It reflects a time when people did not rely exclusively on courts to resolve their grievances. If a court couldn't give a satisfactory resolution, the dispute would be settled in a private manner. Private settlements were not pretty. As such, medieval law possessed great awareness of the limits of its own power, and of the intense need to lay out a law that people would choose to follow. As a basic prerequisite, medieval tort could not leave harms unsatisfied. Its operating principle: strict liability. | >
> | If they were more familiar with medieval tort, they'd know it captures law at an essential level. It reflects a time when people didn't rely exclusively on courts to resolve their grievances. If a court couldn't give a satisfactory resolution, the dispute would be settled in a private manner. Private settlements were not pretty. As such, medieval law possessed great awareness of the limits of its own power, and of the intense need to lay out a law that people would choose to follow. As a basic prerequisite, medieval tort could not leave harms unsatisfied. Its operating principle: strict liability. | | | | |
<
< | Ancient societies simply couldn't have people running around doing injury and getting away with it, even if the harm was unforeseeable. Courts and the law were ignored frequently enough, even when they came to good conclusions. It would have been institutional suicide for a court of law to deny recovery to those injured by the actions of others. Not allowing for recovery for non-negligent accidents wouldn't stop people from taking revenge, but it would erode the relevance of the court. If the court couldn't engage with people's basic sensibilities, it would be ignored. And the sense that a party who does injury should be liable is at least as old as the Code of Hammurabi. | >
> | Ancient societies couldn't have people running around doing injury and getting away with it, even if the harm was unforeseeable. Courts and the law were ignored frequently enough, even when they came to good conclusions. It would have been institutional suicide for a court of law to deny recovery to those injured by the actions of others. Not allowing recovery for non-negligent accidents wouldn't stop people from taking revenge on their injurers, but it would erode the relevance of the court. If the court couldn't engage with people's basic sensibilities, it would be ignored. And the sense that a party who does injury should be liable is at least as old as the Code of Hammurabi. | | | Yet, strict liability is a word barely uttered in the legal academy. If the behavior isn't abnormally dangerous, the notion that people should be liable regardless of their intent doesn't meet a welcome audience. Almost not harming someone becomes the same as doing no harm, so long as you try really hard. Hold people liable for damages, even if they made a reasonable effort to avoid them? | | | Damage Without Compensation is a Bad Way to Conduct Tort Law | |
<
< | Somehow, in the smoke and fire of industrialization, American jurisprudence lost sight of an ancient truth. Tort is not about blame, but harm. It is about making injured people whole, as best as the law can approximate. It shouldn't matter that, by all accounts, you built a really safe and professional backyard batting cage. If you hit a ball and cripple Little Timmy from across the street, it shouldn't be that Little Timmy has to pay out of pocket for a lifetime of corrective surgery and physical therapy. Yet, that's how negligence works. | >
> | Somehow, in the smoke and fire of industrialization, American jurisprudence lost sight of an ancient truth. Tort is not about blame, but harm. It is about making injured people whole, as best as the law can approximate. It shouldn't matter that, by all accounts, you built a really safe and professional backyard batting cage. If you hit a ball and cripple Little Timmy from across the street, Little Timmy shouldn't have to pay out of pocket for a lifetime of corrective surgery and physical therapy. Yet, that's how negligence works. | | | Theoretically, your almost-effective batting cage excuses you from liability. Because you tried to make it safe, and took a "reasonable" level of precaution, Little Timmy is not able to recover from you. That you can do harm and not be negligent seems to demand a redefinition of negligence. But as it stands, Little Timmy has to swallow the cost of his injury so you can enjoy your "right" to practice your swing. He pays a leg, and you get to enjoy your freedom to participate in semi-dangerous behavior with impunity. In essence, our society has decided it's better to shift costs to the random injured individual than to stifle free enterprise with the occasional award of monetary damages. | |
<
< | It should not be a controversial proposition that the law should compensate a person who, through no fault of his own, is injured by the acts of another. It is a travesty that "reasonableness" and negligence subvert this fundamental standard. | >
> | It shouldn't be a controversial proposition that the law should compensate a person who, through no fault of his own, is injured by the acts of another. It is a travesty that "reasonableness" and negligence subvert this fundamental standard. | | | | |
<
< | In the past, if a court failed to do justice, people had private means to rectify the problem. What changed from the Middle Ages to the present day is the monopoly of force and the centralized power of law. In modern civilization, private people no longer retain much power. They have entrusted the force of society to the courts. | >
> | In the past, if a court failed to do justice, people had private means to rectify the problem. What changed from the Middle Ages to the present day is the monopoly of force and the centralized power of law. In modern civilization, private people no longer retain agency. They have entrusted the force of society to the courts. | | | | |
<
< | Yet, courts are fallible, and they bind themselves to their mistakes. Bad precedent, once accepted, can create perpetual injustice. The result? A century of negligence and the "reasonableness" standard, even though tying compensation for damage to the reasonable conduct of the damager leaves the equally reasonable victim drifting in the wind. | >
> | Yet, courts are fallible, and they bind themselves to their mistakes. Bad precedent, once accepted, creates perpetual injustice. And since private action is no longer tolerated, a lack of legal recourse is a deprivation of all recourse. The result? Over a century of uniformly bad jurisprudence, where tying compensation for damage to the reasonable conduct of the damager leaves the equally reasonable victim drifting in the wind. | | | Strict Liability Would Work in the Real World | |
<
< | If the U.S. ran on a strict liability system, life wouldn't change much. Baseball stadiums might have more enclosed roofs. Hockey games might be shielded by higher glass. Insurance would be more extensive and widespread. But strict liability wouldn't be a paradigm shift. Free enterprise would continue to exist. It'd just be safer at the margins. | >
> | If the U.S. ran on a strict liability system, life wouldn't change much. More baseball stadiums might have enclosed roofs. Hockey games might be shielded by higher glass. Insurance would be more extensive and widespread. But strict liability wouldn't be a paradigm shift. Free enterprise would continue to exist. It'd just be safer at the margins. | | | I have heard the argument that strict liability would create an unacceptable incentive for companies to flout the law more often and simply pay damages. I think this is a stupid argument, for two reasons. |
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RonMazorFirstPaper 12 - 26 Feb 2010 - Main.RonMazor
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| | | Yes. | |
<
< | Why Reasonableness And Negligence Have No Place In Tort | >
> | Damage Without Compensation is a Bad Way to Conduct Tort Law | | | Somehow, in the smoke and fire of industrialization, American jurisprudence lost sight of an ancient truth. Tort is not about blame, but harm. It is about making injured people whole, as best as the law can approximate. It shouldn't matter that, by all accounts, you built a really safe and professional backyard batting cage. If you hit a ball and cripple Little Timmy from across the street, it shouldn't be that Little Timmy has to pay out of pocket for a lifetime of corrective surgery and physical therapy. Yet, that's how negligence works.
Theoretically, your almost-effective batting cage excuses you from liability. Because you tried to make it safe, and took a "reasonable" level of precaution, Little Timmy is not able to recover from you. That you can do harm and not be negligent seems to demand a redefinition of negligence. But as it stands, Little Timmy has to swallow the cost of his injury so you can enjoy your "right" to practice your swing. He pays a leg, and you get to enjoy your freedom to participate in semi-dangerous behavior with impunity. In essence, our society has decided it's better to shift costs to the random injured individual than to stifle free enterprise with the occasional award of monetary damages. | |
<
< | Damage without compensation is a bad way to conduct tort law | | | It should not be a controversial proposition that the law should compensate a person who, through no fault of his own, is injured by the acts of another. It is a travesty that "reasonableness" and negligence subvert this fundamental standard.
In the past, if a court failed to do justice, people had private means to rectify the problem. What changed from the Middle Ages to the present day is the monopoly of force and the centralized power of law. In modern civilization, private people no longer retain much power. They have entrusted the force of society to the courts. | |
<
< | Yet, courts are fallible, and they bind themselves to their mistakes. Bad precedent, once accepted, can create perpetual injustice. The result? A century of negligence, even though tying compensation for damage to the reasonable conduct of the damager leaves the equally reasonable damaged party drifting in the wind. | >
> | Yet, courts are fallible, and they bind themselves to their mistakes. Bad precedent, once accepted, can create perpetual injustice. The result? A century of negligence and the "reasonableness" standard, even though tying compensation for damage to the reasonable conduct of the damager leaves the equally reasonable victim drifting in the wind. | | | Strict Liability Would Work in the Real World |
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RonMazorFirstPaper 11 - 25 Feb 2010 - Main.RonMazor
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<
< | Still a work in progress. Comments welcome. | >
> | Comments welcome. | | | Strict Liability Should Govern Tort | | | The Middle Ages Had It Right | |
<
< | Medieval law gets a short shrift. Too often, it is reduced to some primitive, bloody, superstitious, and inherently unjust monstrosity--a dark age of ordeals and inquisitions. Having majored in medieval history, such simplistic reductions are tiresome. Monty Python is not an accurate secondary source, and law professors should know better. Especially those who teach tort. | >
> | Medieval law gets a short shrift. Too often, it is reduced to some primitive, bloody, superstitious, and inherently unjust monstrosity--a dark age of ordeals and inquisitions. Having majored in medieval history, such simplistic reductions are tiresome. Monty Python isn't an accurate secondary source, and law professors should know better. Especially those who teach tort. | | | | |
<
< | If they were more familiar with medieval law, they'd know it captures law at an essential level. It reflects a time when people did not rely exclusively on courts to resolve their grievances. If a court couldn't give a satisfactory resolution, the dispute would be settled in a private manner. Private settlements were not pretty. As such, medieval law possessed great awareness of the limits of its own power, and of the intense need to lay out a law that people would choose to follow. As a basic prerequisite, medieval tort could not leave harms unsatisfied. Its operating principle: strict liability. | >
> | If they were more familiar with medieval tort, they'd know it captures law at an essential level. It reflects a time when people did not rely exclusively on courts to resolve their grievances. If a court couldn't give a satisfactory resolution, the dispute would be settled in a private manner. Private settlements were not pretty. As such, medieval law possessed great awareness of the limits of its own power, and of the intense need to lay out a law that people would choose to follow. As a basic prerequisite, medieval tort could not leave harms unsatisfied. Its operating principle: strict liability. | | | | |
<
< | If Tort professors knew more legal history, they'd also know that medieval law did not appear in a vacuum. For much of Europe, medieval tort was based on Roman law, preserved with surprising fidelity by the Byzantines and the Barbarians who inherited Rome's shattered empire. The strict liability of Salic and Visigoth law, not too mention the Corpus Iuris Civilis, came from decidedly ancient sources. And in fact, many ancient legal systems shared a basic notion that when it came to private harm, intent did not excuse injury. So long as causation could be proved, recompense was required. Jewish law? Strict liability. Code of Hammurabi? Strict liability. | >
> | Ancient societies simply couldn't have people running around doing injury and getting away with it, even if the harm was unforeseeable. Courts and the law were ignored frequently enough, even when they came to good conclusions. It would have been institutional suicide for a court of law to deny recovery to those injured by the actions of others. Not allowing for recovery for non-negligent accidents wouldn't stop people from taking revenge, but it would erode the relevance of the court. If the court couldn't engage with people's basic sensibilities, it would be ignored. And the sense that a party who does injury should be liable is at least as old as the Code of Hammurabi. | | | | |
<
< | Ancient societies simply couldn't have people running around doing harm and getting away with it, even if the harm was unforeseeable.
Yet, despite its rich and distinguished history, strict liability is a word barely uttered in the legal academy. If the behavior isn't abnormally dangerous, the notion that people should be liable regardless of their intent doesn't meet a welcome audience. In 1951, across the pond, Bolton v. Stone got it wrong. Now, in 2010, most of my peers agree "reasonable" people aren't responsible for the consequences of their actions. A good effort can get you off with nary a pecuniary wrist-slap, even if you give a pedestrian a concussion because you didn't buy a tall enough fence for your ballpark. Almost not harming someone becomes the same as doing no harm, so long as you try really hard. Hold people liable for damages, even if they made a reasonable effort to avoid them? | >
> | Yet, strict liability is a word barely uttered in the legal academy. If the behavior isn't abnormally dangerous, the notion that people should be liable regardless of their intent doesn't meet a welcome audience. Almost not harming someone becomes the same as doing no harm, so long as you try really hard. Hold people liable for damages, even if they made a reasonable effort to avoid them? | | | Yes.
Why Reasonableness And Negligence Have No Place In Tort | |
<
< | Somehow, in the smoke and fire of industrialization, American jurisprudence lost sight of an ancient truth. Tort is not about blame, but harm. It is about making injured people whole, as best as the law can approximate. It should not matter if, by all accounts, you built a really safe and professional backyard shooting range. If you fire your gun, and you maim Little Timmy from across the street, it shouldn't be that Little Timmy has to pay out of pocket for a lifetime of corrective surgery, physical therapy, and prosthetic appendages. Yet, that's how negligence works. | >
> | Somehow, in the smoke and fire of industrialization, American jurisprudence lost sight of an ancient truth. Tort is not about blame, but harm. It is about making injured people whole, as best as the law can approximate. It shouldn't matter that, by all accounts, you built a really safe and professional backyard batting cage. If you hit a ball and cripple Little Timmy from across the street, it shouldn't be that Little Timmy has to pay out of pocket for a lifetime of corrective surgery and physical therapy. Yet, that's how negligence works. | | | | |
<
< | Theoretically, your almost-effective shooting range excuses you from liability. Because you tried to make it safe, and took a "reasonable" level of precaution, Little Timmy is not able to recover from you. That you can do harm and not be negligent seems to demand a redefinition of negligence. But as it stands, Little Timmy has to swallow the cost of his injury so you can enjoy your "right" to build a shooting range. He pays a leg, and you get to enjoy your freedom to participate in semi-dangerous behavior with impunity. In essence, our society has decided it's better to shift costs to the random injured individual than to stifle free enterprise with the occasional award of monetary damages. | >
> | Theoretically, your almost-effective batting cage excuses you from liability. Because you tried to make it safe, and took a "reasonable" level of precaution, Little Timmy is not able to recover from you. That you can do harm and not be negligent seems to demand a redefinition of negligence. But as it stands, Little Timmy has to swallow the cost of his injury so you can enjoy your "right" to practice your swing. He pays a leg, and you get to enjoy your freedom to participate in semi-dangerous behavior with impunity. In essence, our society has decided it's better to shift costs to the random injured individual than to stifle free enterprise with the occasional award of monetary damages. | | | Damage without compensation is a bad way to conduct tort law
It should not be a controversial proposition that the law should compensate a person who, through no fault of his own, is injured by the acts of another. It is a travesty that "reasonableness" and negligence subvert this fundamental standard. | |
<
< | What has changed between the Middle Ages and the present day is the monopoly of force and the centralized power of law. In the past, if a court failed to do justice, people had private means to rectify the problem. In modern civilization, the people no longer retain that power. They have entrusted the force of society to the courts, and they hope that the courts will use that power well. As a flawed and human system, the court often does not use its power well. Basing compensation for damage on the "unreproachable" conduct of the damager leaves the equally unreproachable damaged drifting in the wind. | >
> | In the past, if a court failed to do justice, people had private means to rectify the problem. What changed from the Middle Ages to the present day is the monopoly of force and the centralized power of law. In modern civilization, private people no longer retain much power. They have entrusted the force of society to the courts.
Yet, courts are fallible, and they bind themselves to their mistakes. Bad precedent, once accepted, can create perpetual injustice. The result? A century of negligence, even though tying compensation for damage to the reasonable conduct of the damager leaves the equally reasonable damaged party drifting in the wind. | | | Strict Liability Would Work in the Real World | |
<
< | If the U.S. ran on a strict liability system, life wouldn't change much. Baseball stadiums might have more enclosed roofs. Hockey games might be shielded by higher glass. Insurance would be a lot more extensive and widespread. But strict liability wouldn't be a paradigm shift. Free enterprise would continue to exist. It'd just be safer at the margins. | >
> | If the U.S. ran on a strict liability system, life wouldn't change much. Baseball stadiums might have more enclosed roofs. Hockey games might be shielded by higher glass. Insurance would be more extensive and widespread. But strict liability wouldn't be a paradigm shift. Free enterprise would continue to exist. It'd just be safer at the margins. | | | I have heard the argument that strict liability would create an unacceptable incentive for companies to flout the law more often and simply pay damages. I think this is a stupid argument, for two reasons. |
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RonMazorFirstPaper 10 - 25 Feb 2010 - Main.RonMazor
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| | | It should not be a controversial proposition that the law should compensate a person who, through no fault of his own, is injured by the acts of another. It is a travesty that "reasonableness" and negligence subvert this fundamental standard. | |
>
> | What has changed between the Middle Ages and the present day is the monopoly of force and the centralized power of law. In the past, if a court failed to do justice, people had private means to rectify the problem. In modern civilization, the people no longer retain that power. They have entrusted the force of society to the courts, and they hope that the courts will use that power well. As a flawed and human system, the court often does not use its power well. Basing compensation for damage on the "unreproachable" conduct of the damager leaves the equally unreproachable damaged drifting in the wind. | | | Strict Liability Would Work in the Real World
If the U.S. ran on a strict liability system, life wouldn't change much. Baseball stadiums might have more enclosed roofs. Hockey games might be shielded by higher glass. Insurance would be a lot more extensive and widespread. But strict liability wouldn't be a paradigm shift. Free enterprise would continue to exist. It'd just be safer at the margins. |
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RonMazorFirstPaper 9 - 21 Feb 2010 - Main.RonMazor
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| | | Damage without compensation is a bad way to conduct tort law | |
<
< | It should not be a controversial proposition that the law should compensate a person who, through no fault of her own, is injured by the acts of another. It is a travesty that "reasonableness" and negligence subvert this fundamental standard. | >
> | It should not be a controversial proposition that the law should compensate a person who, through no fault of his own, is injured by the acts of another. It is a travesty that "reasonableness" and negligence subvert this fundamental standard. | | | Strict Liability Would Work in the Real World |
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RonMazorFirstPaper 8 - 20 Feb 2010 - Main.RonMazor
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| | | The Middle Ages Had It Right | |
<
< | Medieval law gets a short shrift. Too often, it is reduced to some primitive, bloody, superstitious, and inherently unjust monstrosity--a dark age of ordeals and inquisitions. Having majored in medieval history, with a particular focus on medieval legal history, such simplistic reductions are tiresome. Monty Python is not an accurate secondary source, and law professors should know better. Especially those who teach tort. | >
> | Medieval law gets a short shrift. Too often, it is reduced to some primitive, bloody, superstitious, and inherently unjust monstrosity--a dark age of ordeals and inquisitions. Having majored in medieval history, such simplistic reductions are tiresome. Monty Python is not an accurate secondary source, and law professors should know better. Especially those who teach tort. | | | If they were more familiar with medieval law, they'd know it captures law at an essential level. It reflects a time when people did not rely exclusively on courts to resolve their grievances. If a court couldn't give a satisfactory resolution, the dispute would be settled in a private manner. Private settlements were not pretty. As such, medieval law possessed great awareness of the limits of its own power, and of the intense need to lay out a law that people would choose to follow. As a basic prerequisite, medieval tort could not leave harms unsatisfied. Its operating principle: strict liability. | | | Somehow, in the smoke and fire of industrialization, American jurisprudence lost sight of an ancient truth. Tort is not about blame, but harm. It is about making injured people whole, as best as the law can approximate. It should not matter if, by all accounts, you built a really safe and professional backyard shooting range. If you fire your gun, and you maim Little Timmy from across the street, it shouldn't be that Little Timmy has to pay out of pocket for a lifetime of corrective surgery, physical therapy, and prosthetic appendages. Yet, that's how negligence works. | |
<
< | Theoretically, your almost-effective shooting range excuses you from liability. Because you tried to make it safe, and took a "reasonable" level of precaution, Little Timmy is not able to recover from you. That you can shoot Little Timmy and not be negligent seems to demand a redefinition of negligence. But as it stands, he has to swallow the cost of his injury so you can enjoy your "right" to build a shooting range. He pays a leg, and you get to enjoy your freedom to participate in semi-dangerous behavior with impunity. In essence, our society has decided it's better to shift costs to the random injured individual than to stifle free enterprise with the occasional award of monetary damages. | >
> | Theoretically, your almost-effective shooting range excuses you from liability. Because you tried to make it safe, and took a "reasonable" level of precaution, Little Timmy is not able to recover from you. That you can do harm and not be negligent seems to demand a redefinition of negligence. But as it stands, Little Timmy has to swallow the cost of his injury so you can enjoy your "right" to build a shooting range. He pays a leg, and you get to enjoy your freedom to participate in semi-dangerous behavior with impunity. In essence, our society has decided it's better to shift costs to the random injured individual than to stifle free enterprise with the occasional award of monetary damages. | | | Damage without compensation is a bad way to conduct tort law | | | When legal damages are less than the cost of precautions, companies behave negligently. This isn't a new phenomenon. Example: Eben's story of the Goodyear tire rims. | |
<
< | The only real difference is that under strict liability, companies will always be liable for the injuries they cause, and those that get injured will have full recourse under the law for any damage they endure. | >
> | The only real difference is that under strict liability, companies will always be liable for the injuries they cause, and those that get injured will have full recourse under the law for any damage they suffer. | | | Conclusion |
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RonMazorFirstPaper 7 - 20 Feb 2010 - Main.RonMazor
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| | | Strict Liability Would Work in the Real World | |
<
< | If the U.S. ran on a strict liability system, life wouldn't change much. Baseball stadiums might have more enclosed roofs. Hockey games might be shielded by higher glass. Insurance would be a lot more extensive and widespread. But strict liability wouldn't be a paradigm shift. Free enterprise would continue to exist. It'd just be safer. | >
> | If the U.S. ran on a strict liability system, life wouldn't change much. Baseball stadiums might have more enclosed roofs. Hockey games might be shielded by higher glass. Insurance would be a lot more extensive and widespread. But strict liability wouldn't be a paradigm shift. Free enterprise would continue to exist. It'd just be safer at the margins. | | | I have heard the argument that strict liability would create an unacceptable incentive for companies to flout the law more often and simply pay damages. I think this is a stupid argument, for two reasons. | | | When legal damages are less than the cost of precautions, companies behave negligently. This isn't a new phenomenon. Example: Eben's story of the Goodyear tire rims. | |
<
< | The only real difference is that under strict liability, companies will always pay for the injuries they cause, and those that get injured will have full recourse under the law for any damage they endure. | >
> | The only real difference is that under strict liability, companies will always be liable for the injuries they cause, and those that get injured will have full recourse under the law for any damage they endure. | | | Conclusion | |
<
< | An injury creates a grievance. Without compensation, we are leaving injured parties to suffer while the perpetrator of the injury is excused for having taken insufficient precautions. | >
> | An injury creates a grievance. Under negligence, we are occasionally leaving injured parties to suffer--grievance unsatisfied--while the perpetrator of the injury is excused for having taken insufficient precautions. This is not right. | | | Ultimately, tort is about harm. As such, strict liability is the proper way to assess tort--what matters is the result, not the thought process. |
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RonMazorFirstPaper 6 - 20 Feb 2010 - Main.RonMazor
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< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | >
> | | | | Still a work in progress. Comments welcome. | |
<
< | Tort Is About Harm | >
> | Strict Liability Should Govern Tort | | | -- By RonMazor - 19 Feb 2010
The Middle Ages Had It Right | |
<
< | Medieval law gets a short shrift. Too often, it is reduced to some primitive, bloody, superstitious, and inherently unjust monstrosity--a dark age of ordeals and inquisitions. Having majored in medieval history, with a particular focus on medieval legal history, such simplistic reductions make me cringe. Monty Python is not an accurate secondary source, and law professors should know better. Especially those who teach tort. | >
> | Medieval law gets a short shrift. Too often, it is reduced to some primitive, bloody, superstitious, and inherently unjust monstrosity--a dark age of ordeals and inquisitions. Having majored in medieval history, with a particular focus on medieval legal history, such simplistic reductions are tiresome. Monty Python is not an accurate secondary source, and law professors should know better. Especially those who teach tort. | | | | |
<
< | If they were more familiar with medieval law, they'd know it captures law at its most basic. It reflects a time when people did not rely exclusively on courts to resolve their grievances. If a court couldn't give a satisfactory resolution, the dispute would be settled in a private manner. Private settlements were not pretty. As such, medieval law possessed great awareness of the limits of its own power, and of the intense need to lay out a law that people would choose to follow. As a basic prerequisite, medieval tort could not leave harms unsatisfied. Its operating principle: strict liability. | >
> | If they were more familiar with medieval law, they'd know it captures law at an essential level. It reflects a time when people did not rely exclusively on courts to resolve their grievances. If a court couldn't give a satisfactory resolution, the dispute would be settled in a private manner. Private settlements were not pretty. As such, medieval law possessed great awareness of the limits of its own power, and of the intense need to lay out a law that people would choose to follow. As a basic prerequisite, medieval tort could not leave harms unsatisfied. Its operating principle: strict liability. | | | | |
<
< | If Tort professors knew more legal history, they'd also know that medieval law did not appear in a vacuum. For much of Europe, medieval tort was based on Roman law, preserved with surprising fidelity by the Byzantines and the Barbarians who inherited Rome's shattered empire. The strict liability of Salic and Visigoth law, not too mention the Corpus Iuris Civilis, came from decidedly ancient sources. And in fact, many ancient law sources shared a basic notion that, when it comes to private harm, intent did not excuse injury. So long as causation could be proved, recompense was required. Jewish law? Strict liability. Code of Hammurabi? Strict liability. | >
> | If Tort professors knew more legal history, they'd also know that medieval law did not appear in a vacuum. For much of Europe, medieval tort was based on Roman law, preserved with surprising fidelity by the Byzantines and the Barbarians who inherited Rome's shattered empire. The strict liability of Salic and Visigoth law, not too mention the Corpus Iuris Civilis, came from decidedly ancient sources. And in fact, many ancient legal systems shared a basic notion that when it came to private harm, intent did not excuse injury. So long as causation could be proved, recompense was required. Jewish law? Strict liability. Code of Hammurabi? Strict liability. | | | Ancient societies simply couldn't have people running around doing harm and getting away with it, even if the harm was unforeseeable. | |
<
< | Yet, despite its rich and distinguished history, strict liability is a word barely uttered in the legal academy. If the behavior isn't abnormally dangerous, the notion that people should be punished regardless of their intent doesn't meet a welcome audience. In 1951, across the pond, Bolton v. Stone got it wrong. Now, in 2010, most of my peers agree "reasonable" people aren't responsible for the consequences of their actions. A good effort can get you off with nary a pecuniary wrist-slap, even if you give a pedestrian a concussion because you didn't buy a tall enough fence for your ballpark. Almost not harming someone becomes the same as doing no harm, so long as you try really hard. Hold people liable for damages, even if they made a reasonable effort to avoid them? | >
> | Yet, despite its rich and distinguished history, strict liability is a word barely uttered in the legal academy. If the behavior isn't abnormally dangerous, the notion that people should be liable regardless of their intent doesn't meet a welcome audience. In 1951, across the pond, Bolton v. Stone got it wrong. Now, in 2010, most of my peers agree "reasonable" people aren't responsible for the consequences of their actions. A good effort can get you off with nary a pecuniary wrist-slap, even if you give a pedestrian a concussion because you didn't buy a tall enough fence for your ballpark. Almost not harming someone becomes the same as doing no harm, so long as you try really hard. Hold people liable for damages, even if they made a reasonable effort to avoid them? | | | Yes.
Why Reasonableness And Negligence Have No Place In Tort | |
<
< | Somehow, in the smoke and fire of industrialization, American jurisprudence lost sight of an ancient truth. Tort is not about blame, but harm. It is about making injured people whole, as best as the law can approximate. It should not matter if, by all accounts, you built a really solid backyard shooting range. If you fire your gun, and you maim Little Timmy from across the street, it shouldn't be that Little Timmy has to pay out of pocket for a lifetime of corrective surgery, physical therapy, and prosthetic appendages. Yet, that's how negligence works. | >
> | Somehow, in the smoke and fire of industrialization, American jurisprudence lost sight of an ancient truth. Tort is not about blame, but harm. It is about making injured people whole, as best as the law can approximate. It should not matter if, by all accounts, you built a really safe and professional backyard shooting range. If you fire your gun, and you maim Little Timmy from across the street, it shouldn't be that Little Timmy has to pay out of pocket for a lifetime of corrective surgery, physical therapy, and prosthetic appendages. Yet, that's how negligence works. | | | Theoretically, your almost-effective shooting range excuses you from liability. Because you tried to make it safe, and took a "reasonable" level of precaution, Little Timmy is not able to recover from you.That you can shoot Little Timmy and not be negligent seems to demand a redefinition of negligence. But as it stands, he has to swallow the cost of his injury so you can enjoy your "right" to build a shooting range. He pays a leg, and you get to enjoy your freedom to participate in semi-dangerous behavior with impunity. In essence, our society has decided it's better to shift costs to the random injured individual than to stifle free enterprise with the occasional award of monetary damages.
Damage without compensation is a bad way to conduct tort law | |
<
< | It should not be a controversial proposition that the law should compensate a person who, through no fault of his own, is injured by the acts of another. It is a travesty that "reasonableness" and negligence subvert this fundamental standard. | >
> | It should not be a controversial proposition that the law should compensate a person who, through no fault of her own, is injured by the acts of another. It is a travesty that "reasonableness" and negligence subvert this fundamental standard. | | | | |
<
< | Strict Liability Will Work in the Real World | >
> | Strict Liability Would Work in the Real World | | | | |
<
< | If the U.S. ran on a strict liability system, life wouldn't change much. Baseball stadiums might have more enclosed roofs. Hockey games might be shielded by higher glass. Insurance would be a lot more extensive and widespread. But strict liability wouldn't be a paradigm shift. Free enterprise will continue to exist. It will just be safer. | >
> | If the U.S. ran on a strict liability system, life wouldn't change much. Baseball stadiums might have more enclosed roofs. Hockey games might be shielded by higher glass. Insurance would be a lot more extensive and widespread. But strict liability wouldn't be a paradigm shift. Free enterprise would continue to exist. It'd just be safer. | | | | |
<
< | I have heard the argument that strict liability would create incentive for companies to flout the law more often, and simply pay damages. I think this is a stupid argument, for two reasons. | >
> | I have heard the argument that strict liability would create an unacceptable incentive for companies to flout the law more often and simply pay damages. I think this is a stupid argument, for two reasons. | | | | |
<
< | Increased demand for safety will likely make the cost of precautions cheaper than the cost of litigation. | >
> | Increased demand for safety will likely make the cost of precautions cheaper than the cost of litigation | | | If capitalism is good at anything, it's exploiting opportunity. Manufacturers will be fighting tooth and nail to design and sell cheap and effective safety measures.
Companies already flout the law | |
<
< | When legal damages are less than the cost of precautions, companies behave negligently. This is not a new phenomenon. Example: Eben's story of the Goodyear tire rims. | >
> | When legal damages are less than the cost of precautions, companies behave negligently. This isn't a new phenomenon. Example: Eben's story of the Goodyear tire rims. | | | The only real difference is that under strict liability, companies will always pay for the injuries they cause, and those that get injured will have full recourse under the law for any damage they endure.
Conclusion | |
<
< | An injury creates a grievance. Without compensation, we are leaving injured parties to suffer while the perpetrator of the injury is excused for having taken insufficient precautions. Every time negligence excuses a harm, the law perpetrates injustice. | >
> | An injury creates a grievance. Without compensation, we are leaving injured parties to suffer while the perpetrator of the injury is excused for having taken insufficient precautions. | | | | |
<
< | Strict liability is the proper way to assess tort, because tort is about harm. | >
> | Ultimately, tort is about harm. As such, strict liability is the proper way to assess tort--what matters is the result, not the thought process. |
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RonMazorFirstPaper 5 - 20 Feb 2010 - Main.RonMazor
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| META TOPICPARENT | name="FirstPaper" |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | The Middle Ages Had It Right | |
<
< | Medieval law gets a short shrift. Too often, it is reduced to some primitive, bloody, superstitious, and inherently unjust monstrosity--a dark age of ordeals and inquisitions. Having majored in Medieval History, with a particular focus on Medieval Legal History, such simplistic reductions make me cringe. Monty Python is not an accurate secondary source, and law professors should know better. Especially those who teach tort. | >
> | Medieval law gets a short shrift. Too often, it is reduced to some primitive, bloody, superstitious, and inherently unjust monstrosity--a dark age of ordeals and inquisitions. Having majored in medieval history, with a particular focus on medieval legal history, such simplistic reductions make me cringe. Monty Python is not an accurate secondary source, and law professors should know better. Especially those who teach tort. | | | | |
<
< | If they were more familiar with Medieval law, they would know it captures law at its most basic. It reflects a time when people did not rely exclusively on courts to resolve their grievances. If a court couldn't give a satisfactory resolution, the dispute would be settled in a private, often violent manner. The result was a body of law that possessed great awareness of the limits of its own power, and of the intense need to lay out a law that people would choose to follow. As a basic prerequisite, Medieval tort could not leave harms unsatisfied. Its operating principle: strict liability. | >
> | If they were more familiar with medieval law, they'd know it captures law at its most basic. It reflects a time when people did not rely exclusively on courts to resolve their grievances. If a court couldn't give a satisfactory resolution, the dispute would be settled in a private manner. Private settlements were not pretty. As such, medieval law possessed great awareness of the limits of its own power, and of the intense need to lay out a law that people would choose to follow. As a basic prerequisite, medieval tort could not leave harms unsatisfied. Its operating principle: strict liability. | | | | |
<
< | If Tort professors knew more legal history, they would also know that Medieval law did not appear in a vacuum. For much of Europe, Medieval tort was based on Roman law, preserved with surprising fidelity by the Byzantines and the Barbarians who inherited Rome's shattered empire. The strict liability of Salic and Visigoth law, not too mention the Corpus Iuris Civilis, came from decidedly ancient sources. And in fact, many ancient law sources share a basic notion that, when it comes to private harm, intent will not excuse injury. So long as causation can be proved, recompense is required. Jewish law? Strict liability. Code of Hammurabi? Strict liability. The reason? Ancient societies simply couldn't have people running around doing harm and getting away with it, even if the harm was unforeseeable. | >
> | If Tort professors knew more legal history, they'd also know that medieval law did not appear in a vacuum. For much of Europe, medieval tort was based on Roman law, preserved with surprising fidelity by the Byzantines and the Barbarians who inherited Rome's shattered empire. The strict liability of Salic and Visigoth law, not too mention the Corpus Iuris Civilis, came from decidedly ancient sources. And in fact, many ancient law sources shared a basic notion that, when it comes to private harm, intent did not excuse injury. So long as causation could be proved, recompense was required. Jewish law? Strict liability. Code of Hammurabi? Strict liability. | | | | |
<
< | Yet, despite its rich and distinguished history, strict liability is usually a dirty word in the legal academy. If the behavior is not abnormally dangerous, the notion that people should be punished, regardless of their intent, does not meet a welcome audience. Fifty years ago, across the pond, Bolton v. Stone gets it wrong, and now all of my peers in 2010 agree "reasonable" people aren't responsible for the consequences of their actions. A good effort can get you off with nary a pecuniary wrist-slap, even if you give a pedestrian a concussion because you didn't buy a tall enough fence for your ballpark. Almost not harming someone becomes the same as doing no harm, so long as you try really hard. Hold people liable for damages, even if they made a reasonable effort to avoid them? | >
> | Ancient societies simply couldn't have people running around doing harm and getting away with it, even if the harm was unforeseeable.
Yet, despite its rich and distinguished history, strict liability is a word barely uttered in the legal academy. If the behavior isn't abnormally dangerous, the notion that people should be punished regardless of their intent doesn't meet a welcome audience. In 1951, across the pond, Bolton v. Stone got it wrong. Now, in 2010, most of my peers agree "reasonable" people aren't responsible for the consequences of their actions. A good effort can get you off with nary a pecuniary wrist-slap, even if you give a pedestrian a concussion because you didn't buy a tall enough fence for your ballpark. Almost not harming someone becomes the same as doing no harm, so long as you try really hard. Hold people liable for damages, even if they made a reasonable effort to avoid them? | | | Yes.
Why Reasonableness And Negligence Have No Place In Tort | |
<
< | Somehow, in the smoke and fire of industrialization, American jurisprudence lost sight of an ancient truth. Tort is not about blame, but harm. It is about making injured people whole, as best as the law can approximate. It should not matter if, by all accounts, you built a really solid backyard shooting range. If you fire your gun, and you maim Little Timmy from across the street, it should not be that Little Timmy has to pay out of pocket for a lifetime of corrective surgery, physical therapy, and prosthetic appendages. But this is how negligence works. | >
> | Somehow, in the smoke and fire of industrialization, American jurisprudence lost sight of an ancient truth. Tort is not about blame, but harm. It is about making injured people whole, as best as the law can approximate. It should not matter if, by all accounts, you built a really solid backyard shooting range. If you fire your gun, and you maim Little Timmy from across the street, it shouldn't be that Little Timmy has to pay out of pocket for a lifetime of corrective surgery, physical therapy, and prosthetic appendages. Yet, that's how negligence works. | | | | |
<
< | Theoretically, your almost-effective shooting range excuses you from liability. Because you tried to make it safe, and "reasonable" people would agree that it would usually be safe, Little Timmy is not be able to recover from you. He has to swallow the cost of his injury so you can enjoy your "right" to build a shooting range. He pays a leg, and you get to enjoy your freedom to participate in semi-dangerous behavior with impunity. In essence, our society has decided it is better shift the costs to the random injured individual than to stifle free enterprise with the occasional award of monetary damages. | >
> | Theoretically, your almost-effective shooting range excuses you from liability. Because you tried to make it safe, and took a "reasonable" level of precaution, Little Timmy is not able to recover from you.That you can shoot Little Timmy and not be negligent seems to demand a redefinition of negligence. But as it stands, he has to swallow the cost of his injury so you can enjoy your "right" to build a shooting range. He pays a leg, and you get to enjoy your freedom to participate in semi-dangerous behavior with impunity. In essence, our society has decided it's better to shift costs to the random injured individual than to stifle free enterprise with the occasional award of monetary damages. | | | Damage without compensation is a bad way to conduct tort law | | | Strict Liability Will Work in the Real World | |
<
< | If the U.S. ran on a strict liability system, life wouldn't change much. Baseball stadiums might have more enclosed roofs. Hockey games might be shielded by higher glass. Insurance would be a lot more extensive and widespread. But strict liability would not be a paradigm shift. A legal system based on strict liability will create economic incentive to invent cheap and effective ways to prevent harm. Free enterprise will continue to exist. It will just be safer. | >
> | If the U.S. ran on a strict liability system, life wouldn't change much. Baseball stadiums might have more enclosed roofs. Hockey games might be shielded by higher glass. Insurance would be a lot more extensive and widespread. But strict liability wouldn't be a paradigm shift. Free enterprise will continue to exist. It will just be safer. | | | | |
<
< | I have heard the argument that strict liability would create incentive for companies to flout the law more often, and simply pay damages. I think it is a stupid argument, for two reasons. | >
> | I have heard the argument that strict liability would create incentive for companies to flout the law more often, and simply pay damages. I think this is a stupid argument, for two reasons. | | | | |
<
< | Increased demand for safety will likely make the cost of precautions cheaper than the cost and risk of litigation. | >
> | Increased demand for safety will likely make the cost of precautions cheaper than the cost of litigation. | | | | |
<
< | If capitalism is good at anything, it is exploiting opportunity. Manufacturers will be fighting tooth and nail to design and sell cheap and effective safety measures. | >
> | If capitalism is good at anything, it's exploiting opportunity. Manufacturers will be fighting tooth and nail to design and sell cheap and effective safety measures. | | |
Companies already flout the law | |
<
< | When legal damages are less than the cost of precautions, companies behave negligently. This is not a new phenomenon. Example: Eben's story of the Goodyear tire rims. The only real difference is that under strict liability, companies will always pay for the injuries they cause. Likewise, those that get injured will have full recourse under the law for any damage they endure, rather than being barred from recovery in situations where the perpetrator acted "reasonably." | >
> | When legal damages are less than the cost of precautions, companies behave negligently. This is not a new phenomenon. Example: Eben's story of the Goodyear tire rims. | | | | |
>
> | The only real difference is that under strict liability, companies will always pay for the injuries they cause, and those that get injured will have full recourse under the law for any damage they endure. | | | | |
<
< | You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line: | >
> | Conclusion | | | | |
<
< | # * Set ALLOWTOPICVIEW = TWikiAdminGroup, RonMazor | >
> | An injury creates a grievance. Without compensation, we are leaving injured parties to suffer while the perpetrator of the injury is excused for having taken insufficient precautions. Every time negligence excuses a harm, the law perpetrates injustice. | | | | |
<
< | Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list | >
> | Strict liability is the proper way to assess tort, because tort is about harm. |
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RonMazorFirstPaper 4 - 20 Feb 2010 - Main.RonMazor
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| META TOPICPARENT | name="FirstPaper" |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | If they were more familiar with Medieval law, they would know it captures law at its most basic. It reflects a time when people did not rely exclusively on courts to resolve their grievances. If a court couldn't give a satisfactory resolution, the dispute would be settled in a private, often violent manner. The result was a body of law that possessed great awareness of the limits of its own power, and of the intense need to lay out a law that people would choose to follow. As a basic prerequisite, Medieval tort could not leave harms unsatisfied. Its operating principle: strict liability. | |
<
< | If Tort professors knew more legal history, they would also know that Medieval law did not appear in a vacuum. For much of Europe, Medieval tort was based on Roman law, preserved with surprising fidelity by the Byzantines and the Barbarians who inherited Rome's shattered empire. The strict liability of Salic and Visigoth law, not too mention the Corpus Iuris Civilis, came from decidedly ancient sources. And in fact, many ancient law sources share a basic notion that, when it comes to private harm, intent will not excuse injury. So long as causation can be proved, recompense is required. Jewish law? Strict Liability. Code of Hammurabi? Strict liability. The reason? Ancient societies simply couldn't have people running around doing harm and getting away with it, even if the harm was unforeseeable. | >
> | If Tort professors knew more legal history, they would also know that Medieval law did not appear in a vacuum. For much of Europe, Medieval tort was based on Roman law, preserved with surprising fidelity by the Byzantines and the Barbarians who inherited Rome's shattered empire. The strict liability of Salic and Visigoth law, not too mention the Corpus Iuris Civilis, came from decidedly ancient sources. And in fact, many ancient law sources share a basic notion that, when it comes to private harm, intent will not excuse injury. So long as causation can be proved, recompense is required. Jewish law? Strict liability. Code of Hammurabi? Strict liability. The reason? Ancient societies simply couldn't have people running around doing harm and getting away with it, even if the harm was unforeseeable. | | | | |
<
< | Yet, despite its rich and distinguished history, strict liability is usually a dirty word in the legal academy. If the behavior is not abnormally dangerous, the notion that people should be punished, regardless of their intent, does not meet a welcome audience. Fifty years ago, across the pond, Bolton v. Stone gets it wrong, and now all of my peers in 2010 agree people aren't responsibly for the consequences of their actions. A good effort can get you off with nary a pecuniary wrist-slap, even if you give a pedestrian a concussion because you didn't buy a tall enough fence for your ballpark. Almost not harming someone becomes the same as doing no harm, so long as you try really hard. Hold people liable for damages, even if they made a reasonable effort to avoid them? | >
> | Yet, despite its rich and distinguished history, strict liability is usually a dirty word in the legal academy. If the behavior is not abnormally dangerous, the notion that people should be punished, regardless of their intent, does not meet a welcome audience. Fifty years ago, across the pond, Bolton v. Stone gets it wrong, and now all of my peers in 2010 agree "reasonable" people aren't responsible for the consequences of their actions. A good effort can get you off with nary a pecuniary wrist-slap, even if you give a pedestrian a concussion because you didn't buy a tall enough fence for your ballpark. Almost not harming someone becomes the same as doing no harm, so long as you try really hard. Hold people liable for damages, even if they made a reasonable effort to avoid them? | | | Yes. | | | Theoretically, your almost-effective shooting range excuses you from liability. Because you tried to make it safe, and "reasonable" people would agree that it would usually be safe, Little Timmy is not be able to recover from you. He has to swallow the cost of his injury so you can enjoy your "right" to build a shooting range. He pays a leg, and you get to enjoy your freedom to participate in semi-dangerous behavior with impunity. In essence, our society has decided it is better shift the costs to the random injured individual than to stifle free enterprise with the occasional award of monetary damages.
Damage without compensation is a bad way to conduct tort law | |
<
< | At its most elemental level, law is meant to provide means of redress for grievances, so as to avoid people taking private revenge. An injury creates a cause for revenge. By not compensating it, we are leaving injured parties to suffer. Every time negligence excuses a harm, the law perpetrates injustice. | | | | |
<
< | Ironically, such a barbarity is only possible in civilized society. Some time ago in the mythic past, the law and the private citizen struck a bargain. The private citizen would cease his vendettas and vigilantism, ceding "police powers" and law enforcement to a centralized authority, and in return, the law would make sure that the private citizens' traditional grievances would not go unpunished. Few grievances are more traditional than getting injured, and the law, since ancient times, has resolved such disputes through compensation. The private citizen trusts the law to protect his person. For the law to create a loophole based on reasonable effort is to leave the private citizen hanging in the wind, with no way of mitigating an unexpected, and certainly unmerited, calamity. | >
> | It should not be a controversial proposition that the law should compensate a person who, through no fault of his own, is injured by the acts of another. It is a travesty that "reasonableness" and negligence subvert this fundamental standard. | | | | |
<
< | It should not be a controversial proposition that the law should compensate a person who, through no fault of his own, is injured by the acts of another. It is a travesty that the "reasonableness" test subverts this fundamental standard. | >
> | Strict Liability Will Work in the Real World | | | | |
>
> | If the U.S. ran on a strict liability system, life wouldn't change much. Baseball stadiums might have more enclosed roofs. Hockey games might be shielded by higher glass. Insurance would be a lot more extensive and widespread. But strict liability would not be a paradigm shift. A legal system based on strict liability will create economic incentive to invent cheap and effective ways to prevent harm. Free enterprise will continue to exist. It will just be safer. | | | | |
<
< | Why Strict Liability Will Work Out Fine in the Real World | >
> | I have heard the argument that strict liability would create incentive for companies to flout the law more often, and simply pay damages. I think it is a stupid argument, for two reasons. | | | | |
<
< | Fear: Won't strict liability lead to situations where people don't bother to take precautions and just pay damage, because its cheaper? | >
> | Increased demand for safety will likely make the cost of precautions cheaper than the cost and risk of litigation. | | | | |
<
< | Answer 1: No/Not necessarily.
A legal system based on strict liability will create economic incentive to invent cheap ways to prevent harm. | >
> | If capitalism is good at anything, it is exploiting opportunity. Manufacturers will be fighting tooth and nail to design and sell cheap and effective safety measures.
Companies already flout the law
When legal damages are less than the cost of precautions, companies behave negligently. This is not a new phenomenon. Example: Eben's story of the Goodyear tire rims. The only real difference is that under strict liability, companies will always pay for the injuries they cause. Likewise, those that get injured will have full recourse under the law for any damage they endure, rather than being barred from recovery in situations where the perpetrator acted "reasonably." | | | | |
<
< | Answer 2: It doesn't matter.
Companies already do this under negligence/current tort. They make dangerous things, and accept the danger of a lawsuit as an occasionally and controllable cost. Example of the semi-trailer rims. The only difference is that now, instead of allowing companies to not be held liable when they do damage while acting reasonably, they will always pay for the injuries they cause. | | | | |
<
< |
| | | You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line: |
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RonMazorFirstPaper 3 - 20 Feb 2010 - Main.RonMazor
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| META TOPICPARENT | name="FirstPaper" |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | Theoretically, your almost-effective shooting range excuses you from liability. Because you tried to make it safe, and "reasonable" people would agree that it would usually be safe, Little Timmy is not be able to recover from you. He has to swallow the cost of his injury so you can enjoy your "right" to build a shooting range. He pays a leg, and you get to enjoy your freedom to participate in semi-dangerous behavior with impunity. In essence, our society has decided it is better shift the costs to the random injured individual than to stifle free enterprise with the occasional award of monetary damages.
Damage without compensation is a bad way to conduct tort law | |
<
< | At its most elemental level, law is meant to provide means of redress for grievances, so as to avoid people taking private revenge. An injury creates a cause for revenge. By not compensating it, we are leaving injured parties to suffer while the perpetrator of the injury is excused for having taken a reasonable, but not sufficient, level of precautions. Every time negligence excuses a harm, the law perpetrates injustice. | >
> | At its most elemental level, law is meant to provide means of redress for grievances, so as to avoid people taking private revenge. An injury creates a cause for revenge. By not compensating it, we are leaving injured parties to suffer. Every time negligence excuses a harm, the law perpetrates injustice. | | | Ironically, such a barbarity is only possible in civilized society. Some time ago in the mythic past, the law and the private citizen struck a bargain. The private citizen would cease his vendettas and vigilantism, ceding "police powers" and law enforcement to a centralized authority, and in return, the law would make sure that the private citizens' traditional grievances would not go unpunished. Few grievances are more traditional than getting injured, and the law, since ancient times, has resolved such disputes through compensation. The private citizen trusts the law to protect his person. For the law to create a loophole based on reasonable effort is to leave the private citizen hanging in the wind, with no way of mitigating an unexpected, and certainly unmerited, calamity. |
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RonMazorFirstPaper 2 - 20 Feb 2010 - Main.RonMazor
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| META TOPICPARENT | name="FirstPaper" |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | |
>
> | Still a work in progress. Comments welcome. | | | Tort Is About Harm
-- By RonMazor - 19 Feb 2010 | |
<
< | A Medievalist in American Court
Medieval law gets a short shrift. Too often, Medieval law is reduced to some primitive, bloody, superstitious, and inherently unjust monstrosity--a dark age of ordeals and inquisitions. Law professors should know better. Especially those who teach tort. | >
> | The Middle Ages Had It Right | | | | |
<
< | If they were more familiar with Medieval law, they would know that it captures law at its most basic. It reflects a time when people did not rely exclusively on courts to resolve their grievances. If a court couldn't give a satisfactory resolution, the dispute would be settled in a private, often violent manner. The result was a body of law that possessed great awareness of the limits of its own power, and of the intense need to lay out a law that people would choose to follow. As a basic prerequisite, Medieval tort could not leave grievances/harms uncompensated/unsatisfied. Its operating (legal) doctrine/principle: strict liability. | >
> | Medieval law gets a short shrift. Too often, it is reduced to some primitive, bloody, superstitious, and inherently unjust monstrosity--a dark age of ordeals and inquisitions. Having majored in Medieval History, with a particular focus on Medieval Legal History, such simplistic reductions make me cringe. Monty Python is not an accurate secondary source, and law professors should know better. Especially those who teach tort. | | | | |
<
< | If Tort professors knew more legal history, they would understand that Medieval law did not appear in a vacuum. | >
> | If they were more familiar with Medieval law, they would know it captures law at its most basic. It reflects a time when people did not rely exclusively on courts to resolve their grievances. If a court couldn't give a satisfactory resolution, the dispute would be settled in a private, often violent manner. The result was a body of law that possessed great awareness of the limits of its own power, and of the intense need to lay out a law that people would choose to follow. As a basic prerequisite, Medieval tort could not leave harms unsatisfied. Its operating principle: strict liability. | | | | |
<
< | And so, when one looks at Medieval tort, one finds a law At its essence, it reveals the lines people tend to draw regarding that a lot of it is based on Roman law, preserved equally by the Byzantines and the Barbarians. Salic law, "at least we don't do things like they did in the Middle Ages," | >
> | If Tort professors knew more legal history, they would also know that Medieval law did not appear in a vacuum. For much of Europe, Medieval tort was based on Roman law, preserved with surprising fidelity by the Byzantines and the Barbarians who inherited Rome's shattered empire. The strict liability of Salic and Visigoth law, not too mention the Corpus Iuris Civilis, came from decidedly ancient sources. And in fact, many ancient law sources share a basic notion that, when it comes to private harm, intent will not excuse injury. So long as causation can be proved, recompense is required. Jewish law? Strict Liability. Code of Hammurabi? Strict liability. The reason? Ancient societies simply couldn't have people running around doing harm and getting away with it, even if the harm was unforeseeable. | | | | |
<
< | American tort law is wrong. Simply wrong. Somehow, in the smoke and fire of industrialization, American jurisprudence lost sight of an ancient truth: Tort is about harm. Not blameworthiness, or moral culpability, or reasonable precautions. Not prudence, or recklessness, or luck. The only consideration that should be considered is whether or not you caused harm to another person. | >
> | Yet, despite its rich and distinguished history, strict liability is usually a dirty word in the legal academy. If the behavior is not abnormally dangerous, the notion that people should be punished, regardless of their intent, does not meet a welcome audience. Fifty years ago, across the pond, Bolton v. Stone gets it wrong, and now all of my peers in 2010 agree people aren't responsibly for the consequences of their actions. A good effort can get you off with nary a pecuniary wrist-slap, even if you give a pedestrian a concussion because you didn't buy a tall enough fence for your ballpark. Almost not harming someone becomes the same as doing no harm, so long as you try really hard. Hold people liable for damages, even if they made a reasonable effort to avoid them? | | | | |
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< | A (Very) Short History of Tort Law | >
> | Yes. | | | | |
>
> | Why Reasonableness And Negligence Have No Place In Tort | | | | |
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< | Subsub 1 | >
> | Somehow, in the smoke and fire of industrialization, American jurisprudence lost sight of an ancient truth. Tort is not about blame, but harm. It is about making injured people whole, as best as the law can approximate. It should not matter if, by all accounts, you built a really solid backyard shooting range. If you fire your gun, and you maim Little Timmy from across the street, it should not be that Little Timmy has to pay out of pocket for a lifetime of corrective surgery, physical therapy, and prosthetic appendages. But this is how negligence works. | | | | |
<
< | Subsection B | >
> | Theoretically, your almost-effective shooting range excuses you from liability. Because you tried to make it safe, and "reasonable" people would agree that it would usually be safe, Little Timmy is not be able to recover from you. He has to swallow the cost of his injury so you can enjoy your "right" to build a shooting range. He pays a leg, and you get to enjoy your freedom to participate in semi-dangerous behavior with impunity. In essence, our society has decided it is better shift the costs to the random injured individual than to stifle free enterprise with the occasional award of monetary damages. | | | | |
>
> | Damage without compensation is a bad way to conduct tort law
At its most elemental level, law is meant to provide means of redress for grievances, so as to avoid people taking private revenge. An injury creates a cause for revenge. By not compensating it, we are leaving injured parties to suffer while the perpetrator of the injury is excused for having taken a reasonable, but not sufficient, level of precautions. Every time negligence excuses a harm, the law perpetrates injustice. | | | | |
<
< | Subsub 1 | >
> | Ironically, such a barbarity is only possible in civilized society. Some time ago in the mythic past, the law and the private citizen struck a bargain. The private citizen would cease his vendettas and vigilantism, ceding "police powers" and law enforcement to a centralized authority, and in return, the law would make sure that the private citizens' traditional grievances would not go unpunished. Few grievances are more traditional than getting injured, and the law, since ancient times, has resolved such disputes through compensation. The private citizen trusts the law to protect his person. For the law to create a loophole based on reasonable effort is to leave the private citizen hanging in the wind, with no way of mitigating an unexpected, and certainly unmerited, calamity. | | | | |
>
> | It should not be a controversial proposition that the law should compensate a person who, through no fault of his own, is injured by the acts of another. It is a travesty that the "reasonableness" test subverts this fundamental standard. | | | | |
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< | Subsub 2 | | | | |
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> | Why Strict Liability Will Work Out Fine in the Real World | | | | |
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> | Fear: Won't strict liability lead to situations where people don't bother to take precautions and just pay damage, because its cheaper? | | | | |
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< | Section II | >
> | Answer 1: No/Not necessarily.
A legal system based on strict liability will create economic incentive to invent cheap ways to prevent harm. | | | | |
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< | Subsection A | | | | |
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< | Subsection B | >
> | Answer 2: It doesn't matter.
Companies already do this under negligence/current tort. They make dangerous things, and accept the danger of a lawsuit as an occasionally and controllable cost. Example of the semi-trailer rims. The only difference is that now, instead of allowing companies to not be held liable when they do damage while acting reasonably, they will always pay for the injuries they cause. | | |
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RonMazorFirstPaper 1 - 20 Feb 2010 - Main.RonMazor
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Tort Is About Harm
-- By RonMazor - 19 Feb 2010
A Medievalist in American Court
Medieval law gets a short shrift. Too often, Medieval law is reduced to some primitive, bloody, superstitious, and inherently unjust monstrosity--a dark age of ordeals and inquisitions. Law professors should know better. Especially those who teach tort.
If they were more familiar with Medieval law, they would know that it captures law at its most basic. It reflects a time when people did not rely exclusively on courts to resolve their grievances. If a court couldn't give a satisfactory resolution, the dispute would be settled in a private, often violent manner. The result was a body of law that possessed great awareness of the limits of its own power, and of the intense need to lay out a law that people would choose to follow. As a basic prerequisite, Medieval tort could not leave grievances/harms uncompensated/unsatisfied. Its operating (legal) doctrine/principle: strict liability.
If Tort professors knew more legal history, they would understand that Medieval law did not appear in a vacuum.
And so, when one looks at Medieval tort, one finds a law At its essence, it reveals the lines people tend to draw regarding that a lot of it is based on Roman law, preserved equally by the Byzantines and the Barbarians. Salic law, "at least we don't do things like they did in the Middle Ages,"
American tort law is wrong. Simply wrong. Somehow, in the smoke and fire of industrialization, American jurisprudence lost sight of an ancient truth: Tort is about harm. Not blameworthiness, or moral culpability, or reasonable precautions. Not prudence, or recklessness, or luck. The only consideration that should be considered is whether or not you caused harm to another person.
A (Very) Short History of Tort Law
Subsub 1
Subsection B
Subsub 1
Subsub 2
Section II
Subsection A
Subsection B
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| Revision 15 | r15 - 13 Jan 2012 - 23:14:25 - IanSullivan |
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