‘Tort Rules Versus Tort Practice: The Products Liability Controversy That Wasn’t’

Aaron D Twerski, An Essay on the Quieting of Products Liability Law, 105 Cornell Law Review 101 (forthcoming, 2020), available at SSRN. Over and over, legal scholars have revealed situations in which different legal rules do not produce the different legal outcomes they portend. When states limit juries’ power to award punitive damages, juries instead award increased damages under a compensatory damage head: Catherine M Sharkey, ‘Crossing the Punitive-Compensatory Divide’, in Civil Juries and Civil Justice 79 (Bornstein, Wiener, Schopp and Willborn eds 2008). When states require juries to apportion responsibility between intentional and negligent tortfeasors, jurors may preserve negligence liability by apportioning more civil responsibility to a negligent party than an intentional one: Ellen M Bublick, ‘Upside Down – Terrorist, Proprietors, and Civil Responsibility for Crime Prevention in the Post – 9/11 Tort-Reform World’, 41 Loyola of Los Angeles Law Review 1483 (2008). Legal rules matter, but not as much as we may think. Other normative values intercede … (more)

[Ellen Bublick, JOTWELL, 18 June]

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