Professional Documents
Culture Documents
To involve yourself in the coercive transfer of money, you should have to ask why me?
Why do I have to transfer funds? Talk about fairness.explains the good Samaritan rule.
A. Corrective Justice
a. May help restore moral balance.
i. The wrongdoer should provide the wronged with compensation,
even though it will never be as good as the real thing.
ii. Seeks to shift loss from innocent to blameworthy, or from more
innocent to more blameworthy.
iii. Problems arise when insurer, not the one who wronged pays for the
correction.
iv. We generally want the to cause the s harm if is going to
collect because tort law can correct wrongful harms one inflicts on
another.
v. If there are multiple tortfeasors, the second one did not harm the
if their negligence did not cause the accident.
B. Distributive Justice
a. Has to do with unjust enrichment.
b. If an excessive amount of risk is imposed upon another and the person
who imposes the risk benefits from it, then that person should have to
benefit from it.
C. Optimal Deterrence
a. Helps prevent future tortious actions by threatening potential wrongdoer
with liability of they cause actionable harm.
b. Tort System identifies the appropriate levels of safety and encourages
actors to reach those standards.
c. All actions have risks, but that only some losses are worth avoiding. Some
losses are not worth avoiding though.
D. Loss Distribution
i. Promotes the broad distribution of losses. This rational has no
stopping point. It also is relatively expensive correct loss
distribution through courts, as opposed to simple insurance.
ii. Better for many to pay large costs, than for one person to pay large
costs.(Strict products liability, insurance)
E. Compensation
a. Promote the compensation of those who have suffered injury. It may be a
function but should it be a goal, because it promotes more risky
behavior.
b. Compensation should not be provided simply because someone
experienced something bad, it should be when under certain
circumstances that tort liability should be imposed.
F. Redress of Social Grievances
a. Makes tort law into a populist mechanism. By itself this goal may not be
that good, but combined with some of the other goals may be very
arguable.
G. Serve Instrumental Goals
i. Identify Optimal Level Safety
ii. Provide Financial Incentives to be at OLS in the future.
(Deterrence Argument)
iii. Provide Financial Incentives to be at Optimal Level of Activity
iv. Spread Loss to Minimize Total Social Loss
H. Deep Pocket Arguments
a. Examination of traditional deep pocket arguments (products liability
abnormally dangerous activity) make us think that they are really not
about deep pockets, but about aimed at affecting activity levels by
assigning costs to those who benefit from them
b. When the tort law imposes liability in no fault injuries, it does so to
serve instrumental goals relating to activity levels. Wealth not activity that
should be addressed.
c. Problems: There would be a sliding scale of wealth. Redistribution of
wealth should be done in taxation, tort law to episodic of a system.
Different Tensions:
1. Effective loss allocation (because of insurance or size of business vs. culpability
2. Corrective justice vs instrumental goals (medical malpractice and
Good Samaritan Rule
Specifics:
Dram Shop Statutes:
Statutes changed dram shop liability because courts got it wrong,
Landlord Problems
1. Saelzler-Used causation as a method to prevent landlords from being liable,
missed the legal theory that should have dealt with duty, and not causation.
a. Ruled that as a matter of law landlord actions are not the cause of injury.