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Temple University School of Law
McClellan, Frank M.

PERSPECTIVES on tort law
positive (descriptive of “what is”): describes how legal rules influence behavior
normative: prescriptive of “what should be”: prescribes changes that will increase the efficiency of legal rules or institutions
Law and econs: normative (what should be) focus on deterrence (both gen and specific)
-Efficiency of courts and behavior of parties
-provide incentives for people to change their behavior up to point of econ efficiency
·         -Tort reformers: claim that defensive practices to avoid groundless litigation create a tort tax on all goods and services. Use L&E args such as specific cost-containment and efficiency to argue for caps on damages.
For tort law to have a role:
·         Will tort law have an effect on their behavior
o        some efficient b < pl that they could take? o        Can they act in a way that is cost justified? o        If so, then we will say that the party’s action is preventable ·         Tort law ineffective? o        Maybe they have insurance or are judgment proof. o        Some of these problems might be overcome through tort law §         Parties will invest in acquiring knowledge about risk §         Insurance cos could monitor conduct they will insure Corrective justice: restoring balance b/w parties ·         is it just that a person does/not recover or is/not held liable? ·         Moral responsibility of one causing harm to repair it ·         part of the reason for SL (by engaging in certain activities, no matter how carefully you engage in them, you are justly liable)->or maybe not, b/c no fault
Critical race theory:
·         argue that often times there are rules that appear neutral, but when probed, reveal racial biases/etc…and the law benefits from making those inquiries
·         -Eggshell theoryà used in racial abuse cases
Critical Feminism: criticizes misogynistic view of women that characterizes so

o        generally a person owes a duty when 1. D engages in conduct that creates a foreseeable risk of harm to a class of persons of which P is a member, or 2. D has some relationship with P that imposes a duty, or 3. there are other PP reasons.
·         Breach
o        Failure to conform one’s conduct to the standard required
o        Did D act reasonably in relation to the risk of harm.
o        Foreseeable danger does not dictate the existence of duty but only the nature and extent of the conduct necessary to fulfill the duty (standard of careàandrews).
·         Causation
o        actual cause or cause in fact
o        proximate cause or legal cause
·         actual loss or damages
reasonable care
·         liable if B