Vanderbilt Law Review

Vanderbilt Law Review is a magazine focusing on Law

Articles from Vol. 54, No. 3, April

Accidental Torts
One way to understand tort law is as a functional response to the social problem of accidental personal injury. That puts the negligence action at the center, and emphasizes the doctrinal choice between negligence and strict liability, while downplaying...
A Pragmatic Approach to Improving Tort Law
I. INTRODUCTION In 1923, a group of lawyers, judges, and teachers met to consider the desirability of forming the American Law Institute ("ALI") and of undertaking its ongoing project of restating the law. They began their deliberations with the recognition...
Cost-Benefit Analysis and the Negligence Standard
In his commentary on the proposed Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft"),1 Stephen Gilles does an excellent job of analyzing the role of costbenefit analysis in the characterization of reasonable care...
Duty Rules
Few principles are more fundamentally important to modern society than duty. As obligation to oneself and others-to one's family, friends, neighbors, business associates, clients, customers, community, nation, and God-duty is the thread that binds humans...
Intent and Recklessness in Tort: The Practical Craft of Restating Law
INTRODUCTION This Essay is about how Restatements should be conceptualized and drafted. It is not about whether they should be undertaken in the first instance;1 nor is it about the proper role of tort in American society.2 We assume that tort makes...
Interpretive Construction, Systemic Consistency, and Criterial Norms in Tort Law
These brief remarks focus on the concepts of intent and recklessness in tort and how a Restatement should approach them. They center on three jurisprudential issues that are raised in any discussion of the basic building block concepts of a body of law,...
Introduction
THE RESTATEMENT (THIRD) OF TORTS: GENERAL PRINCIPLES AND THE JOHN W. WADE CONFERENCE The American Law Institute ("ALI") is in the midst of constructing the Restatement (Third) of Torts. Two parts of the project have already been completed and published...
Legal Cause: Cause-in-Fact and the Scope of Liability for Consequences
I. INTRODUCTION The project to restate the law of torts offers a number of opportunities.1 One is law reform, as the last two Restatements concerning products liability illustrate.2 Another is to reflect on doctrinal history, both in the case law and...
Non-Utilitarian Negligence Norms and the Reasonable Person Standard
INTRODUCTION Informal social norms play a crucial, albeit largely unheralded, role in negligence law. The reasonable person standard is an empty vessel that jurors fill with community norms. Jurors do this rather than performing cost-benefit analysis....
Once More into the Bramble Bush: Duty, Causal Contribution, and the Extent of Legal Responsibility
I. INTRODUCTION Few issues in tort law are more in need of clarification than those encompassed by the concepts of legal cause and duty, which are not only the subject of "opaque, confused and contradictory" treatments in the American Law Institute's...
On Determining Negligence: Hand Formula Balancing, the Reasonable Person Standard, and the Jury
INTRODUCTION This Article evaluates the provisions in the proposed Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft") addressing the element of "breach" in the tort of negligence-that is, the provisions that explicate...
Purpose, Belief, and Recklessness: Pruning the Restatement (Third)'s Definition of Intent
I. THE PLACE OF INTENT IN THE RESTATEMENTS The concept of intent has always been at the root of some of tort law's most basic categories. The primitive action for trespass, for example, assumed that, at the very least, the trespasser intended to perform...
Removing Emotional Harm from the Core of Tort Law
My commentary is directed to one important feature of the new Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft")1-the decision to remove liability for emotional harm from the core of tort law. As a Torts professor,...
Restatement (Third) of Torts: General Principles and the Prescription of Masculine Order
Until April 1999, when it published a draft called Restatement (Third) of Torts: General Principles ("General Principles"), the American Law Institute ("ALI") had never purported to declare the "general principles" of anything.1 This lack of precedent...
Restating Duty, Breach, and Proximate Cause in Negligence Law: Descriptive Theory and the Rule of Law
I. THE OBJECT AND FORM OF A RESTATEMENT The American Law Institute ("ALI") set out to restate the general common law in the United States in order to promote clarity and certainty in the common law, which were threatened by "the ever increasing volume...
Scientific Uncertainty and Causation in Tort Law
INTRODUCTION Tort cases involving scientific uncertainty frequently present courts with a difficult causation issue. In the paradigmatic case, the available scientific evidence indicates that a substance might be hazardous, but does not establish that...
The Duty Concept in Negligence Law: A Comment
I. CONFLICTING CONCEPTIONS OF DUTY As critics John Goldberg and Benjamin Zipursky see it, the draft version of the Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft") that is the occasion for this Symposium has relegated...
The Hand Formula in the Draft Restatement (Third) of Torts: Encompassing Fairness as Well as Efficiency Values
The definition of negligence in the draft Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft") employs a version of the Learned Hand formula. According to the chief Reporter, Professor Gary Schwartz, who is responsible...
The Passing of Palsgraf?
I. INTRODUCTION According to a well-known story, Cardozo's Palsgraf opinions was born in his attendance at the discussion of the Restatement (First) of Torts.2 If the formulations now proposed for the Restatement (Third) of Torts (proposed "Restatement")...
The Restatement of Torts and the Courts
I. INTRODUCTION Like other judges, I am strongly influenced by the Restatement. It provides us with principles allowing escape from the suffocating flood of precedents. Primarily through tort law the courts compensate those injured by others. Secondary...
The Restatement (Third) and the Place of Duty in Negligence Law
I. INTRODUCTION A prima facie case of negligence has four elements: duty, breach, causation, and injury. In plain English, a person suing for negligence alleges that the defendant owed her a duty of reasonable care and injured her by breaching that duty....
The Theory of Enterprise Liability and Common Law Strict Liability
The fundamental claim that the Restatement (Third) of Torts: General Principles makes about strict liability is striking and bold.1 The Restatement (Third) claims that there are only special instances of strict liability. Negligence is a general legal...
The Theory of Tort Doctrine and the Restatement (Third) of Torts
I. INTRODUCTION Though at times a source of controversy, the American Law Institute performs an enormous public service through its Restatement projects. One of the initial hurdles any such project confronts is whether it should aim to clarify and illuminate...
The Trouble with Negligence
The concept of negligence dominates tort law. Most tort cases are about negligence. Much tort law scholarship over the past several decades has been about the meaning of negligence. The new draft Restatement (Third) of Torts: General Principles ("Discussion...
The Unexpected Persistence of Negligence, 1980-2000
I. INTRODUCTION In Tort Law in America: An Intellectual History, I made the general argument that the development of tort law in the nineteenth and twentieth centuries had been more influenced by ideas than previous scholars had suggested.' In making...

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