Responsibility for Injuries: Some Sketches
Marshall S. Shapo
Northwestern University School of Law
Northwestern University Law Review, Vol. 100, 2006
This essay summarizes competing views about the underlying rationales of tort law, principally economic concepts and different kinds of fairness and justice-centered ideas. It sets out some basic approaches to negligence and strict liability. With respect to strict liability, it encapsules three approaches - those of the Second Restatement, the draft Third Restatement, and the recently published Principles of European Tort Law. It presents highlights of the tort law on medical liability and products liability. In the products area, it rehearses the dispute over the tests for design defect offered in the Restatement of Products Liability. A particularly interesting focal point is the clash between Wisconsin and California decisions on whether it is appropriate to apply a "consumer expectations" test to latex gloves.
The essay presents a compressed summary of the author's view of products law, in particular, as a mirror of culture. After reference to legislative compensation schemes for injuries, it concludes that legislatures and courts have not settled on an integrated conception of responsibility. It suggests that we must accept that the jurisprudence of injury is constantly in a process of unruly development, and that it is not probable that it will become more philosophically or administratively integrated.
Keywords: torts, liability, culture, injury, jurisprudence
Date posted: November 30, 2006