Author: Dilan A. Esper
Publisher:
ISBN:
Category :
Languages : en
Pages : 0
Book Description
In Abusing 'Duty' we argued that California courts have been abusing duty by issuing highly particularized rulings which reach no father than the facts before the court. The role of duty doctrine is to fix the legal standard applicable to the defendant's conduct. Highly particular rulings distort duty by failing to articulate law. They deform the substance of negligence law and disrespect the role of the jury. California's burgeoning 'no duty' decisions also trace a troubling whole; it devalues the physical integrity of the person and exalts unfettered dominion over real property and the unfettered pursuit of mutual advantage in the marketplace. Our arguments did not go unchallenged, especially by John Goldberg & Ben Zipursky. In this paper we respond to their criticisms and engage the position of the Third Restatement, to which we are largely sympathetic. In our view, Professors Goldberg & Zipursky mischaracterize negligent wrongdoing by presenting negligence as a personal affront akin to a knife in the back or a boot on the neck. Negligence is a more abstract wrong and a more abstract relation - a failure to show sufficient regard for an indefinite plurality of unknown persons who might come to grief from one's carelessness. Personalizing duty is a mistake with far-reaching consequences. When duty is personalized, it no longer functions to determine the existence of an obligation in tort - to determine whether or not the defendant was required to exercise reasonable care for the protection of a class of persons including the plaintiff. It becomes instead a license to determine the exact contours and scope of the obligation owed to any particular plaintiff. Duty begins to swallow breach and proximate cause, and the domain of the judge begins to consume the domain of the jury. Duty is converted from the first element of plaintiff's case and a non-issue almost all of the time into the master concept of negligence law. This deforms tort doctrine and invites the very kind of judicial abuse that disturbs us - a degradation of the judicial role and a usurpation of the jury's role by collapsing the line between law articulation and law application. Worse still, personalizing duty threatens to undermine the moral universalism that is the great achievement of twentieth century tort law. Personalizing duty tends to obscure the hard won insights that everyone's physical integrity is worthy of respect and counts equally, and that our shared interest in the physical integrity of our persons trumps our competing interests in the free use of real property and the unfettered pursuit of mutual advantage in the marketplace. We have, therefore, ample reason to keep duty in its place.
Putting 'Duty' in Its Place
Author: Dilan A. Esper
Publisher:
ISBN:
Category :
Languages : en
Pages : 0
Book Description
In Abusing 'Duty' we argued that California courts have been abusing duty by issuing highly particularized rulings which reach no father than the facts before the court. The role of duty doctrine is to fix the legal standard applicable to the defendant's conduct. Highly particular rulings distort duty by failing to articulate law. They deform the substance of negligence law and disrespect the role of the jury. California's burgeoning 'no duty' decisions also trace a troubling whole; it devalues the physical integrity of the person and exalts unfettered dominion over real property and the unfettered pursuit of mutual advantage in the marketplace. Our arguments did not go unchallenged, especially by John Goldberg & Ben Zipursky. In this paper we respond to their criticisms and engage the position of the Third Restatement, to which we are largely sympathetic. In our view, Professors Goldberg & Zipursky mischaracterize negligent wrongdoing by presenting negligence as a personal affront akin to a knife in the back or a boot on the neck. Negligence is a more abstract wrong and a more abstract relation - a failure to show sufficient regard for an indefinite plurality of unknown persons who might come to grief from one's carelessness. Personalizing duty is a mistake with far-reaching consequences. When duty is personalized, it no longer functions to determine the existence of an obligation in tort - to determine whether or not the defendant was required to exercise reasonable care for the protection of a class of persons including the plaintiff. It becomes instead a license to determine the exact contours and scope of the obligation owed to any particular plaintiff. Duty begins to swallow breach and proximate cause, and the domain of the judge begins to consume the domain of the jury. Duty is converted from the first element of plaintiff's case and a non-issue almost all of the time into the master concept of negligence law. This deforms tort doctrine and invites the very kind of judicial abuse that disturbs us - a degradation of the judicial role and a usurpation of the jury's role by collapsing the line between law articulation and law application. Worse still, personalizing duty threatens to undermine the moral universalism that is the great achievement of twentieth century tort law. Personalizing duty tends to obscure the hard won insights that everyone's physical integrity is worthy of respect and counts equally, and that our shared interest in the physical integrity of our persons trumps our competing interests in the free use of real property and the unfettered pursuit of mutual advantage in the marketplace. We have, therefore, ample reason to keep duty in its place.
Publisher:
ISBN:
Category :
Languages : en
Pages : 0
Book Description
In Abusing 'Duty' we argued that California courts have been abusing duty by issuing highly particularized rulings which reach no father than the facts before the court. The role of duty doctrine is to fix the legal standard applicable to the defendant's conduct. Highly particular rulings distort duty by failing to articulate law. They deform the substance of negligence law and disrespect the role of the jury. California's burgeoning 'no duty' decisions also trace a troubling whole; it devalues the physical integrity of the person and exalts unfettered dominion over real property and the unfettered pursuit of mutual advantage in the marketplace. Our arguments did not go unchallenged, especially by John Goldberg & Ben Zipursky. In this paper we respond to their criticisms and engage the position of the Third Restatement, to which we are largely sympathetic. In our view, Professors Goldberg & Zipursky mischaracterize negligent wrongdoing by presenting negligence as a personal affront akin to a knife in the back or a boot on the neck. Negligence is a more abstract wrong and a more abstract relation - a failure to show sufficient regard for an indefinite plurality of unknown persons who might come to grief from one's carelessness. Personalizing duty is a mistake with far-reaching consequences. When duty is personalized, it no longer functions to determine the existence of an obligation in tort - to determine whether or not the defendant was required to exercise reasonable care for the protection of a class of persons including the plaintiff. It becomes instead a license to determine the exact contours and scope of the obligation owed to any particular plaintiff. Duty begins to swallow breach and proximate cause, and the domain of the judge begins to consume the domain of the jury. Duty is converted from the first element of plaintiff's case and a non-issue almost all of the time into the master concept of negligence law. This deforms tort doctrine and invites the very kind of judicial abuse that disturbs us - a degradation of the judicial role and a usurpation of the jury's role by collapsing the line between law articulation and law application. Worse still, personalizing duty threatens to undermine the moral universalism that is the great achievement of twentieth century tort law. Personalizing duty tends to obscure the hard won insights that everyone's physical integrity is worthy of respect and counts equally, and that our shared interest in the physical integrity of our persons trumps our competing interests in the free use of real property and the unfettered pursuit of mutual advantage in the marketplace. We have, therefore, ample reason to keep duty in its place.
The Basis of Affirmative Obligations in the Law of Tort
Author: Francis Hermann Bohlen
Publisher:
ISBN:
Category : Torts
Languages : en
Pages : 122
Book Description
Publisher:
ISBN:
Category : Torts
Languages : en
Pages : 122
Book Description
A Practical Treatise Upon the Authority and Duty of Justices of the Peace in Criminal Prosecutions
Author: Daniel Davis
Publisher:
ISBN:
Category : Justices of the peace
Languages : en
Pages : 522
Book Description
Publisher:
ISBN:
Category : Justices of the peace
Languages : en
Pages : 522
Book Description
The Whole Law Relative to the Duty and Office of a Justice of the Peace ...
Author: Thomas Walter Williams
Publisher:
ISBN:
Category : Judges
Languages : en
Pages : 906
Book Description
Publisher:
ISBN:
Category : Judges
Languages : en
Pages : 906
Book Description
The Whole Law Relative to the Duty and Office of a Justice of the Peace ... Third Edition, Re-arranged and Considerably Enlarged and Otherwise Improved: Including the Statutes to the End of the Session 51 Geo. III., and the Adjudged Cases to the End of the Easter Term. 51 Geo. III. By H. Nuttall Tomlins, Etc
Author: Thomas Walter Williams
Publisher:
ISBN:
Category :
Languages : en
Pages : 820
Book Description
Publisher:
ISBN:
Category :
Languages : en
Pages : 820
Book Description
Documents of the Assembly of the State of New York
Author: New York (State). Legislature. Assembly
Publisher:
ISBN:
Category :
Languages : en
Pages : 1242
Book Description
Publisher:
ISBN:
Category :
Languages : en
Pages : 1242
Book Description
Official Reports of the Debates of the House of Commons of the Dominion of Canada
Author: Canada. Parliament. House of Commons
Publisher:
ISBN:
Category : Canada
Languages : en
Pages : 1124
Book Description
Publisher:
ISBN:
Category : Canada
Languages : en
Pages : 1124
Book Description
The Law Journal Reports
Author:
Publisher:
ISBN:
Category : Law reports, digests, etc
Languages : en
Pages : 722
Book Description
Publisher:
ISBN:
Category : Law reports, digests, etc
Languages : en
Pages : 722
Book Description
The Law Journal Reports
Author: Henry D. Barton
Publisher:
ISBN:
Category : Law reports, digests, etc
Languages : en
Pages : 1000
Book Description
Publisher:
ISBN:
Category : Law reports, digests, etc
Languages : en
Pages : 1000
Book Description
Atlantic Reporter
Author:
Publisher:
ISBN:
Category : Law reports, digests, etc
Languages : en
Pages : 1164
Book Description
Publisher:
ISBN:
Category : Law reports, digests, etc
Languages : en
Pages : 1164
Book Description