The last several decades of tort scholarship in this country reflect enthusiasm favoring strict enterprise liability as the end position toward which American tort law, appropriately enough, is moving. This Article argues that no such trend is underway; negligence does now, and will in the future, dominate tort. Professor Gary Schwartz reached these same conclusions ii a body of work spanning...
This Article pays tribute to Gary Schwartz and other American tort scholars and judges for their contribution to the development of a distinctive Canadian tort law. Several examples of the direct influence of American tort law on Canadian jurisprudence are described as well as some instances where Canadian tort law has resisted the allure of U.S. developments.
According to the National Academy of Sciences' Institute of Medicine (IOM), preventable medial errors are not so much caused by the carelessness of individual physicians, nurses, or other hospital personnel. Rather they are the result of cumulative opportunities for human error inevitable in today's complex medical system. The ICM report calls for shifting attention away from the faults of...
This Article examines the historical scholarship of Gary Schwartz, spanning the Industrial Revolution to the late twentieth century. Schwartz set out to show that the fault principle had far deeper historical roots, both before and during the Industrial Revolution, than prominent American tort scholarship recognized-and correspondingly, that late twentieth-century tort law developments in many...
Despite calls for the abolition of assumption of risk, and for its merger within comparative fault, the doctrine survives in some jurisdictions, and its spirit endures in most, if not all. The consensual rationale underlying assumption of risk is distinctive, important, and not easily reducible to the paradigm of victim fault. That rationale helps shape many of the no-duty and limited-duty rules...
In common law jurisdictions outside the United States, Gary Schwartz was the most highly regarded American torts scholar of his time, not least because of the similarity of his approach to the approach adopted by the vast majority of common law scholars outside the United States. This case-law-focused middle theory seeks to promote legal reasoning that is precise, internally coherent, and...
Tort doctrine is both unduly complex and insufficiently developed. Here are some examples. Intentional wrongdoing and product injuries are now treated as discrete areas of the law, rather than being folded into the basic fields of fault-based liability and strict liability. General criteria for determining when one does or doesn't owe another a "duty" in tort are underdeveloped. Inadequate...
Last year, Lawrence Lessig delivered the fifteenth Melville B. Nimmer Memorial Lecture, in which he invoked Professor Nimmer's concern with the balance between copyright protection and the First Amendment right of free speech.' Lessig addressed the imbalance that has developed in copyright law from the point of view of a constitutional scholar. I am an English professor, not a lawyer. Therefore...
Applying the Americans with Disabilities Act (ADA) to denials of treatment by assisted reproductive technology (ART) practitioners raises particularly challenging legal and ethical issues. On the one hand, the danger that physicians will inappropriately deny treatment to patients with disabilities is especially worrisome in the context of ARTs, given the widespread stigma associated with...
This Article discusses what can be done to promote productive behavior in mediation and reduce bad conduct. Although most participants do not abuse the mediation process, some people use mediation to drag out litigation, gain leverage for later negotiations, and generally wear down the opposition. Rules requiring good-faith participation are likely to be ineffective and possibly counterproductive...