A History of Civil Litigation: Political and Economic Perspectives

Hardcover | January 22, 2011

byFrank J. Vandall

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A History of Civil Litigation: Political and Economic Perspectives, by Frank J. Vandall, studies the expansion of civil liability from 1466 to 1980, and the cessation of that growth in 1980. It evaluates the creation of tort causes of action during the period of 1400-1980. Re-evaluation andlimitation of those developments from 1980, to the present, are specifically considered. The unique focus of the book is first, to argue that civil justice no longer rests on historic foundations, such as, precedent, fairness and impartiality, but has shifted to power and influence. Reform in the law (legislative, judicial, and regulatory) is today driven by financial interests, notprecedent, not a neutral desire for fairness, and not to "make it better." It uses products, cases and policies for much of its argument. These policies can be summarized as a shift from a balanced playing field, negligence, to one that favors injured consumers. The strict liability foreshadowedby Judge Traynor, in Escola v. Coca Cola (1944), was not adopted until 1962, when Traynor wrote the majority opinion in Greenman v. Yuba Power Products for the California Supreme Court. Second, the book examines the role of persuasive non-governmental agencies, such as the American Law Institute,in reforming and shaping civil justice. Never has it been less true that we live under the rule of law. Congress, agencies and the courts make the law, but they are driven by those who have a large financial stake in the outcome. Today, those with power shape the character of products liability law, at every turn.

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A History of Civil Litigation: Political and Economic Perspectives, by Frank J. Vandall, studies the expansion of civil liability from 1466 to 1980, and the cessation of that growth in 1980. It evaluates the creation of tort causes of action during the period of 1400-1980. Re-evaluation andlimitation of those developments from 1980,...

Frank J. Vandall is one of the most senior faculty members at Emory University School of Law, where he has taught for over 40 years. He teaches Torts and Products Liability and has a casebook in each subject. He was a visiting scholar at the London School of Economics and the Roger Traynor Research Scholar at Hastings College of the L...
Format:HardcoverDimensions:252 pages, 9.25 × 6.12 × 0.98 inPublished:January 22, 2011Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0195391918

ISBN - 13:9780195391916

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Table of Contents

Introduction1. The Development of Civil Liability 1466-1916I. The Period 1400-1850II. The Period 1850 - 19162. The Dissatisfaction With Negligence: Policies Supporting Strict Liability 1916-1980A. Abnormally Dangerous ActivitiesB. Res Ipsa LoquiturC. The Laws Dissatisfaction In Regard to the Theory for Resolving Products Cases1. Dissatisfaction with Commercial Law2. Negligence Leads to Unjust Results3. Specific Policy Reasons for Strict Liabilitya. Loss Shiftingb. Safetyc. Superior Knowledged. Insurancee. Economic Analysis of Strict Liabilityf. Distance from the Manufacturerg. Strict Liability Avoids Universal Healthcare3. The Core Issue In Strict Liability: An Appropriate Test For DefectI. The Emergence of Strict LiabilityII. The Several Tests for DefectA. Section 402A: "Defective Condition Unreasonably Dangerous"B. The Risk-Benefit TestC. The Barker v. Lull testsD. Negligence with Imputed KnowledgeE. The Communicative TortF. The Cheapest Cost AvoiderG. Absolute LiabilityIII. Comparative FaultIV. The Role of the Court and the Jury Under Strict LiabilityA. The CourtB. The JuryC. Cases Applying the Restatement 2d, SC 402AV. An Embrace of NegligenceConclusion4. Legal Reform Emanates From The Corporate Boardroom, 1980-PresentI. Constrictions in Legal TheoryII. Procedural Retrenchments: The Presentation Of The Products Case In The CourtroomIII. Other Legislation Designed to Impede the Victim's Access to the CourtsA. State Legislative "Reforms" of Products Liability Law1. The Impetus for Legislative Change2. A Radical Change: The Statute of Repose3. Further Alterations to the Products Liability Systema. Compliance with Governmental Standardsb. The State of the Art Defensec. Misused. Other Alterations that Further Protect the PowerfulB. Comparison of Fundamental Tort Policies with the State Legislative Refo1. Loss Shifting2. Prevention3. Judge Learned Hand's Theory4. Precedent5. Justice and AdministrationIV. Powerful Institutes and Associations Rewrite the LawA. The American Law Institute (ALI)1. The Tripartite Structure of Section 2: Magic Boxesa. The Structure of Section 2b. Section 2: The Practicec. The Draft Lacks an Analysis of the Traditional Policies Underlying Strict Liabilityd. Section 6(c) Design Defects in Drugs: A Tabula Rasae. The Restatement (Third) of Torts: Products Liability Section 2(b) Does not Reflect the Law2. The Restatement (Third) Section 2(b) Design Defect, Should Be Rejecteda. Under the Restatement (Third) Fewer Suits Will Be Brought.b. Institutionalizing Needless Ambiguity3. An Examination of the Cases that have Considered Reasonable Alternative Design Since Promulgation Of The Restatement (Third) Section 2(b)a. States That Have Rejected the Restatement (Third)'s Reasonable Alternative Design Requirementi. Californiaii. Missouriiii. Marylandiv. Pennsylvaniab. States That Hold Reasonable Alternative Design Is One of Several Factors to Consider in Determining Whether a Product Design is Defectivei. Coloradoii. New Yorkiii. Oregonc. States That Mention the Reasonable Alternative Design Requirement Favorablyi. Georgiaii. New Jerseyiii. Michigand. States That Have Incorporated the Restatement's Reasonable Alternative Design Requirement Into Their Statutesi. Louisianaii. Texasiii. Mississippi4. You Won, Now Let's Reduce the Amount of Your Recovery: Apportionmenta. History of Joint and Several Liabilityb. Analysis of the ALI's Proposal to Eliminate Joint and Several Liabilityc. Analysis of the Potential Impact of the Restatement (Third) Apportionment on the Pennsylvania Law of Joint and Several Liabilityi. Track Aii. Track B: Several LiabilityB. The Council for Tobacco ResearchC. The American Association for JusticeAppendix A5. Corporations Write The LawI. Tobacco LitigationA. The 1960s and the Green v. American Tobacco Co. CaseB. The Cipollone v. Liggett Group, Inc. CaseC. The Castano v. American Tobacco Co. CaseD. Why the Early Cigarette Trials Were LostE. The Theory and the Visionaries That Won the WarF. The Tobacco Settlement1. Components of the Settlementa. A Historical View of Absolute Liabilityb. The Reasons for Applying Absolute Liability to Tobacco Manufacturersi. Reallocating the Lossii. Health Protectioniii. Superior Knowledgeiv. The Cheapest Cost Avoiderv. Economic Analysisvi. Other Considerationsc. Absolute Liability for Damages from Smokingd. The Policies Supporting A Modification To Cause In Facte. The Cause in Fact ProposalII. Gun PolicyA. Suits Against The Gun Manufacturers Have Foundered In The State CourtsB. The United States is Facing a Gun Violence EpidemicC. An Analysis of Gun Control and Liability1. Self Protection2. Enforce Existing Gun Laws3. Personal Responsibility4. Economic ImpactD. Immunity Legislation for Firearms SellersIII. The SUV Rollover Index6. The Application of Concepts to Contemporary ExamplesA. Lobbies Are EffectiveB. Government Rewards the Powerful: Corporate BailoutsC. Examples of Weak Regulations and Agency Policy Favoring the Regulated Industry: Pharmaceuticals, Aircraft and Securities1. Pharmaceutical Regulation2. Aircraft Regulation3. The SEC ? Madoff ExampleD. Persuasive OrganizationsE. Corporations Dictate MoralityF. Proximate Cause v. Tort "Reform"G. The Supreme CourtH. Congress, Agency Failure, Lobbying and Crashes: The Toyota ExampleConclusionIndex