TORTS Flashcards
(111 cards)
1
Q
Battery
A
Intentional Tort:
- Elements
- Intentional Act
- Suffered harm or offense
- Touch (a contact with the body
- Extended personality rule: The plaintiff’s body is considered to include anything the plaintiff is holding or touching
2
Q
Assault
A
Intentional Tort
- Elements:
- Intent
- Apprehension of battery (Reasonable)
- Iminancy
3
Q
Intentional Infliction of Emotional Distress
A
Intentional Tort
- Elements:
- D acted intentionally or recklessly
- D engaged in extreme and outrageous conduct
- P suffered severe distress as a result
- To Immediate family member if present and emotional distress happens OR IF
- Any other person if present AND bodily harm results from emotional distress.
- You can claim IIED if:
- Relationship between the parties
- Repeated pattern of conduct
- Previously aware of the person’s susceptibility to the conduct
4
Q
False Imprisonment
A
Intentional Tort
- Elements:
- Intent
- An act of restraint
- Resulting confinement of the pl;aintiff within a bounded area.
- Physical restraint is not always required, acts and threats are a good sign.
- There must be no reasonable escape
- Reasonable time (be brief), reasonable grounds (be certain), reasonable manner (be polite).
5
Q
Trespass to Land
A
Intentional Tort
- Elements:
- Intent
- Possession of the property by the plaintiff
- Act of physical invasion of the property by the defendant
6
Q
Trespass to Chattels
A
Intentional Tort
- Elements:
- Intent
- Small Interference with P’s property in some way
7
Q
Conversion
A
Intentional Tort
- Elements:
- Intent
- Interference with property or property is severely damaged
- Replevin (damages)
8
Q
Espressed Consent
A
Defenses to Intentional Torts
- Explicit statement by the plaintiff giving the defendant permission to act in a way that would otherwise be an intentional tort
9
Q
Informed Consent
A
Defenses to Intentional Torts
- Two types of informed consent violations:
- Negligence
- Type of informed consent where someone fails to explain the risk involved
- Battery
- Type of informed consent where treatment is unauthorized and performed without consent
- Negligence
10
Q
Implied Consent
A
Defenses to Intentional Torts
- By virtue of what is considered customary
- Reasonable interpretation of conduct [body language]
Case Example:
- O’Brien v. Cunard Lines
- Facts: Irish lady (17 years old) on a ship, surgeon examined her arm and didn’t see mark, she didn’t have a certificate; she says she got vaccinated in Ireland; surgeon vaccinated her anyway and she did not object; she extended her arm
- Rule: There was valid consent here because of body language. Objective test rather than subjective
11
Q
Substituted Consent
A
Defenses to Intentional Torts
- Legal guardian
- Power of Attorney
- Spouse
- Parent
12
Q
Invalid Consent
A
Defenses to Intentional Torts
- Ways consent is invalid: (Friends Frolic In Lakes)
- Force
- Fraud
- Illegal
- Lack of Capacity
13
Q
Self-Defense
A
Defenses to Intentional Torts
- Elements:
- D is responding to an imminent threat
- D has a reasonable belief that the threat is imminent
- Response limited to force necessary under the circumstances
- No duty to retreat
- UNLESS deadly force is threatened
- OR you are in your own home
Cases:
- Touchet:
- Rule: Words/provocation are generally not sufficient to raise the self-defense privilege
14
Q
Public Necessity
A
Defenses to Intentional Torts
- Permites an individual who is confronted with a sudden emergency to engage in a tort against property.
- A person is permitted to trespass on another’s property AND take, use, or destroy another’s property
- Private party not liable when private party damages another private party’s property for the common good
- No individual liability
Case Examples:
- Surroco v. Geary
- Facts: Geary is a public officer. He destroyed Surocco’s house during a fire to prevent the fire from spreading. Surroco was in the process of removing his belongings and would have saved more had Geary not interfered
- Rule: Geary not liable for damages because he was acting in public necessity
15
Q
Private Necessity
A
Defenses to Intentional Torts
- Privileged to enter/remain on someone else’s land if it’s reasonable to prevent imminent harm to actor, land, chattels or a third person
- Still responsible for damages
Case Examples:
- Vincent v. Lake Erie Transportation Co.
- Facts: Boat causes damage to Vincent’s dock in the amount of $500 because of securing the ties to the dock; they were replacing the lines
-
Coase Theorem:
- Forces the boat owner to take into consideration the cost of the dock and choose the least expensive option
16
Q
Defense of Others
A
Defenses to Intentional Torts
-
Elements:
- Imminent threat
- Proportional force
- Reasonable Belief
- **retaliation is not a defense**
17
Q
Arrest & Detention
(Shopkeeper’s Privilege)
A
Defenses to Intentional Torts
- Elements:
- Person may be held if:
- Reasonable suspicion of theft/shopping
- Reasonable manner of arrest
- Reasonable period of time
18
Q
Defense of Property
A
Defenses to Intentional Torts
- Privilege to use reasonable and non-lethal force if:
- Intrusion is not privileged;
- Intrusion can be prevented only by force used;
- You’ve first requested the other to desist and they’re not leaving
- May use deadly force only where:
- Owner reasonable believes without deadly force, death or serious bodily harm will occur
- May use mechanical device to protect property only if you’d be privileged to use a similar degree of force if you were present and acting yourself
Case Examples:
- Katko:
- Facts: After series of break-ins, D sets up spring gun (shotgun) to go off if there is any unlawful injury. P goes in for bottles and gets shot in the leg.
- Court holds human life is more valuable than property and rules in favor of P
19
Q
Castle Doctrine
A
Defenses to Intentional Torts
- Elements:
- Some jurisdictions
- Imminent lethal threat to you
- While you are in your home
- Make My Day Laws (extends)
- Duty to retreat unless you are in a stand your ground laws
20
Q
Negligence
A
Negligence
- Elements: (Do Bad Crimes Dude)
- Duty to care
- What type?
- Breach of duty
- Causation
- Factual Cause
- P would not have been injured “BUT FOR” D’s conduct
- Proximate Cause (“Legal Cause)
- Foreseeability
- Factual Cause
- Damages
- Duty to care
21
Q
Negligence Per Se
A
Negligence
- Elements:
- Two part test: Statute is designed to protect the same:
- Class of persons
- Class of risk or harm
- Two part test: Statute is designed to protect the same:
- Exceptions:
- When it is physically impossible to comply with the law (having a seizure while driving)
- When it is less safe to comply with the statute that it is to not comply (a child darting out into the street in front of your car).
22
Q
Negligent Inflicition of Emotional Distress
A
Negligence
- Elements: (ORS)
- Type:
- Near Miss Cases:
- Outrageous or intolerable conduct
- Physical Harm Results
- Severe emotional distress resulted
- Will lose in most jurisdictions
- Bystander Cases:
- P observes injury to close family member as it happens
- Relationship Cases:
- P & D in business relationship
- Highly foreseeable that negligence in business will result in significant distress to P
- Near Miss Cases:
- Type:
23
Q
Tests for Negligence
A
Three tests for Negligence:
- Contributory
- Assess plaintiff’s conduct
- If contributorily negligent, P wins nothing
- Pure Comparative
- Percentage-Based (proportional)
- P always recovers something even if majority actor
- Modified/Partial Comparative:
- P’s recover is reduced to a threshold
- After threshold (tends to be half) is met, P is barred from recovery
24
Q
Contributory Negligence
A
Negligence
- Elements:
- P’s failure to use relative care for their own safety
- P loses suit and wins nothing
- Has been abolished in most states
- Assumption of the Risk (Exceptions to contributory negligence)
- Expressed: (because you did it
- Verbal or written consent to the possibility of harm
- Completely bars recovery
- Implied: (because you did it)
- Knowledge of risk
- Voluntarily encounter with risk
- Expressed: (because you did it
- Bars to Recovery
- D behaves recklessly
- Last Clear Chance Rule:
- P can recover despite contributory negligence
- D had the last clear to avoid accident, but didn’t
- Typically applies when P is helpless or unaware
25
Comparative Negligence
**Negligence**
1. Elements
1. Will reduce recover in some cases as opposed to creating an absolute bar (like contributory negligence)
2. Replaces contributory negligence and implied assumption of risk
3. Types
1. Pure
1. Percentage-Based (proportional)
2. P always recovers something even if majority actor
2. Modified or Partial
1. P’s recover is reduced to a threshold
2. After threshold (tends to be half) is met, P is barred from recovery
26
Reasonably Prudent Person Standard
**Negligence**
1. Elements:
1. Reasonably prudent person under the same circumstances
1. Objective & rigid
2. Few exceptions
3. Doesn’t take into account previous lack experience
27
Duty of Care for Children
**Negligence**
1. Elements:
1. Must exercise the same care as a child of like age, intelligence, and experience
2. A child will be held to the rigid adult standard if they are engaged in an adult activity
28
Duty of Care for Professionals
**Negligence**
1. Elements:
1. A person who hold herself out as a learned professional are required to both possess and exercise the knowledge and skill as an ordinary member of the profession in good standing
2. A mistake will not qualify as negligence if it is a mistake that an ordinary professional might make.
2. Medical Professionals
1. Necessary for consent in medical procedures:
1. Risk of procedure
2. Necessity of procedure
3. Alternative procedures
3. No duty to inform if:
1. Common knowledge situation
2. Emergency situation
3. Lack of capacity to consent (child)
29
Duty of Possessors of Land
**Negligence**
1. Elements:
1. Duty of Care Calculation:
1. Source of injury
1. Activity on land?
1. Artificial condition
2. Static Condition?
3. Natural condition
2. Entrant (Unicords Don’t Lick Ice)
1. Undiscovered Trespasser
2. Discovered Trespasser:
3. Licensee:
4. Invitee
30
Undiscovered Trespessers
**Negligence**
1. Elements:
1. Duty of Care
1. No duty - artificial danger
2. No duty - static condition
2. Always loses lawsuit
31
Discovered Tresspassers
**Negligence**
1. Elements:
1. A trespasser the landowner should have known about
2. Duty Owed: Reasonable care except:
1. Duty to Warn for dangers that are: (All Horses Can Kick)
1. Artificial
2. Highly dangerous
3. Concealed
4. Known to Land Owner
2. In other words (Man-made Death Traps)
32
Liscensee
**Negligence**
1. Elements:
1. On the land with the possessor’s consent (Invited)
2. Duty Owed: Reasonable care except:
1. Duty to Warn for dangers that are:
1. Concealed
2. Known to Land Owner
3. Not expected to remedy
33
Invitee
**Negligence**
1. Elements:
1. Public or Business guest (Induced to come) on land.
2. Duty Owed:
1. Inspect, Warn, and/or Protect.
2. Reasonable care
3. Duty to Warn for dangers that are:
1. Concealed
2. Known/Should have known by Land Owner
3. Does not include LE or Fire Fighters
34
Bailments
**Negligence**
1. Elements:
1. Arises when owner transfers possession of personal property to a nonowner to maintain temporary custody of the property for a limited purpose.
2. Definitions:
1. Bailee: the person (or custodian) entrusted or given temporary possession of good or chattel
2. Bailor: person giving or leaving the good or chattel to another person to hold temporarily.
3. Gratuitous bailment -- sharing of property by a bailor or the free provision of custodial services by the bailee
4. Bailment for hire, in which the bailor and bailee both benefit.
35
Distress Damaged Feasant
**Negligence**
1. Elements:
1. Allows owner to hold trespassing chattel for payment of damages under distraint damage feasant or distress damage feasant.
2. No right to wound or kill the trespassing animals
36
Attractive Nuisance
**Negligence**
1. Elements:
1. Attractive
2. Dangerous
3. Child cannot appreciate Danger
1. Meant to protect child trespassers
2. Duty Owed: Reasonable Care
3. Could the owner anticipate that children may be attracted to an entity on their land?
37
No Duty to Rescue
**Negligence:**
1. Elements:
1. Exceptions to no duty to rescue rule:
1. Responsible for putting P in peril
2. Relationship with P
1. Family/Relative
2. Common Carrier
1. Innkeeper/ Guest
2. Invitor/ Invitee
38
Duty to Guard Against Harm Caused by Third Parties
**Negligence**
1. Elements:
1. Duty to stop somebody else from injuring P
2. D has both ability and authority to control third party
2. Requirements:
1. Risk of harm was foreseeable
2. D has relationship with third party or victim
3. Examples:
1. Parents (when careless)
2. Employers
3. Land Owners (Invitors & Licensers)
39
Factual Causation
**Causation**
1. Elements
1. “But For” Test
2. The plaintiff’s injury would not have occurred without the defendant’s act
40
Proximate Causation
**Causation**
1. Elements:
1. Wagon Mound Test - Foreseeability (Cardozo)
1. Foreseeability test - Was the outcome foreseeable? Did they take reasonable precautions?
2. More dominant/common test
3. Restricts scope of liability
2. Polemis Test - Directness (Andrews)
1. Directness Test - Liability for all damages directly traceable to the negligent act, and not due to the operation of independent causes having no connection to the negligent act?
2. Broadens scope of liability
41
Intervening Causes
Causation
1. A limitation on the scope of D’s liability
2. Use foreseeability “snapshot” test (Cardoza)
3. Superseding factors that bring about harm different from what would have normally resulted from the negligent act
4. Considered Foreseeable
1. Act of Nature is usually foreseeable and not superseding
5. Not Considered Foreseeable
1. Criminal conduct of a third party
Intervening Causes with known outcomes: (D will always be liable for)
1. Subsequent Medical Malpractice
2. Negligent Rescue
3. Reaction Forces
4. Subsequent Diseases and Accidents
42
Joint & Severally Liability
**Causation**
1. Elements:
1. Any defendant can be held liable for the entirety of the damage amount
2. Jointly liable
1. Liability is shared by two or more parties who may or may not be joined in a single suit.
3. Severally liable
1. A defendant’s liability is separate and distinct from the other's liability (a separate action against one defendant without joining the other)
2. Substantial Factor Test
1. Multiple Defendants
2. Co-mingled Cause
3. Shift Burden of Proof (From P to D)
1. Multiple Defendant
2. Unknown Cause
4. If no defendant can exonerate themselves, both with be held joint & severally liable
43
Defamation
Defamation
1. Elements (Dumb Old Police Department)
1. Defamatory statement that is false
2. On or Concerning
3. Publication to Third Party
4. Damages
1. Public Officials + Celebrities:
1. Must prove malice + false
2. Gertz Standard
1. Limited & All Purpose
2. Private Figures:
1. Negligence standard
44
Defamation Per Quod
**Defamation**
1. Elements
1. Libel per quod or Slander Per Quod is d
1. Defamation
2. Statement not defamatory on its face
3. Requires knowledge of extrinsic facts to understand its defamatory nature.
45
Libel
**Defamation**
1. Elements
1. Defamatory statement that is false
2. Written or publicized to a Third Party
46
Slander
**Defamation**
1. Elements:
1. Defamatory statement that is false
2. Spoken to a third party
3. Damages are not assumed
47
Slander Per Se
**Defamation**
1. Special Elements (People Can Draw Unicorns)
1. Profession
2. Crime
3. Disease
4. Unchastity
2. Damages are assumed
48
Product Disparagement
Defamation
1. Elements
1. Defamation of a product
49
Defenses to Defamation
**Defamation**
1. Defenses: (Can’t Trick A Queen)
1. Consent
2. Truth
3. Absolute Privilege (Jails Like Extra Crime)
1. Judicial Proceedings
2. Legislative Proceedings
3. Executive Officials
4. Communications between spouses
4. Qualified Privilege
1. EX: Reference Letter
50
Damages
**Damages**
1. Elements-
1. Compensatory Damages:
1. Past/future medical expenses
2. Lost wages
3. Pain and suffering
2. Punitive Damages:
1. To punish (rarely used in negligence cases)
51
Eggshell Plaintiff Rule
**Damages**
1. You take your victim as your find them
2. P’s sensitivity to injury does not limit D’s liability
52
Wrongful Death
**Damages**
1. Elements:
1. Survival statute:
1. Allows the estate of decedent to pursue a claim on D’s behalf
2. Estate can recover any damages that victim could’ve recovered up to time of death
3. Allows for the recovery for:
1. Loss of support (wages) during victim’s ordinary life span
2. Emotional consequences of death
3. Loss of Consortium
53
Vicarious Liability
1. Person is liable for third party’s acts:
1. Respondeat Superior
1. Employer- employee
2. Within the scope of employment
3. Not intentional
2. Employer Not Liable if employee:
1. Acts outside the scope of employment
1. Frolic
1. Major deviation
2. Detour
1. Drivethru
2. Commits intentional tort
54
Animal Strict Liability
**Strict Liability**
1. Owners and Handlers of ___ face strict liability:
1. Straying Livestock
2. Wild animals
3. Animals not by custom devoted to the service of mankind at that place and time
2. Pets with known\* dangerous propensities
1. Pets have animus revertendi - intention of returning
2. 25 states no longer need KNOWN propensity - first unprovoked attack would still be strict liability.
55
Private Nuisance
**Strict Liability**
1. Elements:
2. A non-trespass interference with another’s interest in the private use and quiet enjoyment of their land. Must be:
1. Intentional and unreasonable OR
2. Unintentional but otherwise actionable under normal negligence or reckless conduct, or abnormally dangerous activity rules
1. Unreasonable - gravity of harm \> utility of actor’s conduct
2. Harm caused is serious and financial burden, if compensated, would make it impossible to continue.
3. Spite fences
1. Need to show malice
2. Has to be upsetting to average reasonable person - extrasensitive Ps not given special treatment
56
Public Nuisance
Public Nuisance
1. Unreasonable
2. Significant interference with public peace, health and safety OR goes against a statute, ordinance, or regulation,
3. Normally brought by the government, but can be brought by a private citizen if they were especially harmed
57
Abnormally Dangerous Activities
**Strict Liability**
1. Elements
1. Activity that cannot be made safe
2. Harm likely to be severe
3. Uncommon in the community where it takes place
58
Strict Product Liability
Products Liability
1. Merchant/Seller of goods
2. Product Defect (D,M, or W)
3. Same condition
4. Foreseeable Use of Product
1. Use Calabresi (Cheapest Cost Avoider)
59
Product Liability Tests
1. Risk Utility Test
1. Does the products usefulness outway its risk
2. 402A 2nd Restatement
1. Risk dangerous beyond what a consumer would expect
2. Turley’s favorite
3. Most commonly used
3. 3rd Restatement
1. Is there a safer alternative that would not interfere with the efficacy
60
Warning Defect For Prescription Drugs
1. Different Approaches
1. Mini Trial (argues for a negligence claim alone)
1. Bring in all experts
2. Is this drug of such importance that it should be given this unique status?
2. Everything is Comment K Approach - SECOND RESTATEMENT
1. Prescription drugs are too important to the public
2. Unavoidably unsafe products
3. Section 6 (c) Test - THIRD RESTATEMENT
1. Drug not reasonably safe due to defective design if the foreseeable risks of harm posed by the drug are greater than its foreseeable therapeutic benefits
61
Manufacturing Defect
Products Liability
1. Product is different (altered) in a dangerous way
2. Can also pursue negligence claim
62
Warning Defect
Products Liability
1. Product lacks reasonable instructions or warnings of foreseeable harm posed by product
2. Can this person use this warning to protect themselves from reasonable harm?
3. You can’t warn away a design defect
63
Design Defect
Products Liability
1. Elements:
1. Common to any unit designed by that seller
2. There was a cost effective way to make the product safer without impairing its utility but seller failed to do it
3. Foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design
64
False Light
Privacy Liability
1. Elements
1. Publication of info about another in a false light
2. Highly offensive to a reasonable person
3. Actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
2. The Supreme Court has only applied that standard to cases involving matters of public interest.
3. 31 states accept false light while 10 ten states reject it. The 9 other states have either no clear test or unique approaches.
65
Public Disclosure of Private Facts
Privacy Liability
1. Elements
1. Publication of private facts in a way that is
2. Highly offensive to a reasonable person, and
3. Not of legitimate concern to the public
2. 42 states recognize tort
3. 4 states reject
4. 4 states unclear
66
Intrusion on Seclusion
Privacy Liability
1. Elements
1. One who intentionally intrudes
2. Physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person
67
Appropriation
Privacy Liability
1. Elements
1. Appropriating the name or likeness of another to one's benefit
2. You can appropriate the image or likeness of someone who is dead if you make money off of them
1. Thirty-five states recognize some form of the right of publicity.
2. Twenty-two states allow it to be freely transferred or descended.
68
**Sophocles**
1. This is God’s Law
2. Natural God-made law
3. Certain rights that exist that attach to us because we are human
69
**Plato**
1. If man is ruled by god's law, cities should be ruled by Man
2. “The Just Man” and “the Just State” are the same
3. Focuses on what humans are capable of doing
4. Natural Man-made law
1. Example: freedom of religion, speech, expression
70
Aristotle
1. “Universal sense of right and wrong”
2. All humans are the same as nature
3. Natural law/justice and injustice/written and unwritten
4. Example: Human Rights
71
Locke
1. Common rights of man
2. Divine and natural right to property - cannot be denied by gov’t, taken or taxed without compensation (5th Amend. “Takings Clause”)
3. Locke’s Proviso: “enough, and as good left in common for others” - taking so much property and not leaving any for others (**Labor Theory?**)
4. Example: Property, Constitution, **Labor Theory**
72
Hegel
1. Property - relationship to a person (ownership and possession)
2. **Unique and personally valued - more valuable to me than market value**
3. Example: Damages, Use of Imminent Domain, Environmental Law, Animal Rights
73
Voltaire
1. Early legal systems required the legitimacy/enforceability of divine source of law
74
Hume
1. Empiricism: knowledge comes from experience; moral principles rooted in utility
2. Law must be based on experiential truth and utility
3. Law gets its value from utility and experience not divine source
4. Example: Empiricism
75
Kant
1. Morality can be defended and basis for reason/knowledge
2. Categorical vs Hypothetical Imperatives
76
Hobbes
1. Leviathan
2. The state corrects nature by creating order
3. Commonwealth - covenant of every man with every man is created by the State, which has absolute power
4. **Positive Law**
1. **Law that is enacted or adopted from proper authrority**
5. Example: Contracts
77
J.S. Mill
1. **Harm Principle:** preventing to harm to others; as we create law, there are certain rules that limit what we give the state (e.g. Bill of Rights); morality laws challenge HP
2. True sovereign is individual not state
3. Example: Utilitarianism, Women’s Rights, Civil Liberties, Criminal Law, Torts, Constitutional Law, Individual Rights
78
Nietzsche
1. God is dead
2. Moral basis when law is not a manifestation of God
79
Hugo Grotius
1. There needs to be a law between states - law of the seas
2. Detach natural law from God (unnecessary), brought in Kantian notion of right reason
3. Example: father of International Law, Maritime Law, Law of the Seas
80
Jeremy Bentham
1. **“The Greatest good for the greatest number”**
2. Develop individual rights for utility
3. If you find your happiness, sieze (govt should assist in this)
4. All boats will float; purpose of law/gov’t is to make life better for people
5. **Positive Law**
1. **Law that is enacted or adopted from proper authrority**
81
Dworkin
1. Legitimacy of the law is utility and advance majority, it puts you at odds with individual rights
2. Example: Utilitarianism, Individual Rights
3. **Anti-positivist**
1. **Thought it should be more natural law (moral/theological laws)**
82
Richard Posner
1. Father of Law and Economics
2. Economic Theory
3. Wants to maximize wealth
4. Systems that focus on wealth management are the most efficient
83
Catherine MacKinnon
1. Feminist Theory
2. Greatest good is to deal with gender inequality, challenging key concepts
3. Liberalism often forgets that free speech of the man infringes on the free speech of the woman
84
Leslie Bender
1. Feminist Theory
2. Rights-based focus to Feminist voice of Responsibility
85
Blackstone
1. Lockeian
2. Customs compose common law
86
Kennedy
Property was too restrictive under Blackstone
87
Thoreau
1. Anti-positivist
1. Thought it should be more natural law (moral/theological laws
2. law must be based on moral grounds, must be rights and if not right then it’s not good law
2.
88
Calabresi
1. All strict liability
2. Where person is cheapest cost avoider
3. Who is in the best place to avoid the tort
89
Montesquieu
1. Seperation of Powers
2. Madison steals idea
3. First understand humanity then government
4. What is the spirit of the law?
90
James Madison
1. Bill of Rights, Constitution, Separation of Powers, Three Branches of Gov’t
91
Mancur Olson
1. Free Rider Problem - receiving all the benefits but contributing nothing in return/inaction still results in some benefit
2. Example: Environmentalism, Voting
3. Logic of Collective Action - small groups are more powerful than larger ones
92
Kaldor-Hicks
1. Greatest good for greatest number
2. The better off people should compensate for the damages of the worse off people
93
Adam Smith
1. Invisible hand comes in to reduce the risk (make product safer) or pass on those costs to the consumer
2. Once we force a company to internalize cost, will carry cost until it changes the design; in a competitive market, it will lose
94
Utilitarianism
1. Law must be made to conform to its most socially useful purpose, e.g. torts, property, contract - foundation of modern law
95
Feminist Theory
1. Jurispathic (someone totally loses and wins) vs Jurisgenerative (recognize split and equitable, flexible results)
2. Argue in situations:
1. More damages for emotional distress
2. More liability for duty to Rescue
3. Less lose/lose situations
3. Leslie Bender talks about false duality
96
Critical Legal Studies
(Kairys): be aware of class, race, gender bias
97
Critical Race Theory
(Delgado): skepticism toward dominant legal claims of neutrality, objectivity, color blindedness, and meritocracy - racial inequality is not random; racism is endemic in American life
98
Legal Positivism
1. Positive Law: adopted by a proper authority, as citizens we agree what the law should be; very contextual and specific on the problem; Hobbesian
2. Anti-Positivists: object not on moral grounds but legitimate grounds
99
Counter-majoritian Difficulty
1. For tort decisions, make decisions that will effect society
100
Schools of Interpretation:
1. Textualism: focuses on text to resolve interpretations of statutes
2. Intentionalism: uses both text and legislative history for legislative intent
3. Purposivism: presumes a reasonable purpose behind a statute and interprets the statute to best achieve that purpose
4. Pragmatism: use practical reasoning to reach the interpretation most beneficial to society
101
Dealism (Easterbrook)
1. Skeptical that courts can reach accurate result when legislative intent may be hidden; gap-filling
2. Example: Clean Water Act
102
Cheapest Cost Avoider
1. (Calabresi): party who “is in the best position to make the cost-benefit analysis between accident costs and accident avoidance costs and to act on that decision once it is made” (Intentional Tort: Assault, Strict Liability)
103
Wealth Maximization
Rationale actor is someone who ideally is making choices
104
Pareto Efficiency
1. Everyone wants the best situation
2. Are we producing more winners than losers? Turn losers into winners by compensating them
105
Pareto Optimality
1. Producing as many winners as possible without producing your first loser
2. A change in the allocation of resources makes one person better off doesn’t make anybody else worse off
3. Nobody can be better off while others are worse off
4. We don't actually know what will make everyone better or worse off
106
Externalities
1. Forcing to externalize costs and to the market, you have to pay for damages or pay to make the product safer
2. Positive: subsidies and incentives
3. Negative: tax; cost spillover; someone externalizes a cost or risk to others
4. Pigou: for any market to work, you need to internalize any externalities
107
Free Rider
Receiving all the benefits but contributing nothing in return/inaction still results in some benefit
108
Public Good
Non-excludable goods like fireworks or legally, quasi-monopolies like water, electric companies
109
Pigouvian Theory
1. Need to internalitze externalities
2. Less market failure do to nebulous externalities
110
Coase Theorem
1. Coase Theorem: in a perfect market, it’s not the law that determines how a conflict is resolved, it’s the market
2. In a perfect market, the more valuable resource will prevail regardless of which side is favored by law; not a moral choice, most of what we deal with in law are conflicts of uses and activities and can’t exist between each other
3. No such thing as a perfect market, everything is transactional
111
Hand Formula
1. Liability depends on whether the Burden (B) is less than Injury (L) multiplied by Probability (P) = B\>PL
2. B = Burden or cost of prevention
3. P = Probability of Harm
4. L = Degree of Loss
