scholarly journals From Liability Shields to Democratic Theory: What We Need from Tort Theory Now

2022 ◽  
Vol 0 (0) ◽  
Author(s):  
Heidi Li Feldman

Abstract In the United States, one startling response to COVID-19 has been a push for so-called “liability shields,” laws modifying tort doctrine so as to largely eliminate tort liability for negligently causing COVID-19. Though not enacted at the federal level, such changes have been adopted in numerous states. This article excavates and articulates the tort theory that lies behind this puzzlingly response to a pandemic. I call the theory “tort deflationism.” Grounded in modern American conservatism and with a doctrinal pedigree dating back to the 1970s, tort deflationism explains and justifies only minimal tort liability, out of deference to non-governmental actors – especially family, church, and business—and suspicion of government competence and power. Other tort theories should reckon with tort deflationism, and I discuss some challenges of doing so. The contest between tort deflationism and other theories speaks to ongoing debates about the legitimacy of law in pluralist democracies. I urge tort theorists to enter these debates and to consider their implications for tort law itself.

2003 ◽  
Vol 5 (2) ◽  
pp. 86-108 ◽  
Author(s):  
Margaret Rosso Grossman

This article first discusses some benefits and risks of agricultural crops developed through biotechnology and then outlines the complex US regulatory scheme for genetically modified crops. The article then analyses nuisance, trespass, negligence, and strict liability as possible tort law remedies for damage caused by these crops.


1974 ◽  
Vol 24 ◽  
pp. 79-96
Author(s):  
Samuel H. Beer

It is appropriate that an American should address himself to the subject of public opinion. For, in terms of quantity, Americans have made the subject peculiarly their own. They have also invested it with characteristically American concerns. Most of the work done on the subject in the United States is oriented by a certain theoretical approach. This approach is democratic and rationalist. Both aspects create problems. In this paper I wish to play down the democratic problem, viz., how many of the voters are capable of thinking sensibly about public policy, and emphasize rather the difficulties that arise from modern rationalism. Here I take a different tack from most historians of the concept of public opinion, who, taking note of the origin of the term in the mid-eighteenth century, stress its connection with the rise of representative government and democratic theory.


Author(s):  
Michael Lobban

The Anglo-American law of obligations was profoundly reshaped in the two centuries after 1800, driven by social and economic changes, and changes in legal institutions and doctrines. In contract law, nineteenth-century jurists increasingly sought to put the rules of law into a coherent rational framework (inspired by continental models resting on will theory), though they soon found that this theory could not explain many contractual doctrines. In tort law, jurists were also divided over whether unifying principles underlying tort could be uncovered, with formalist efforts to find such principles being challenged by Realists who argued that tort was in effect ‘public law in disguise’. The quest for underlying principles was also pursued by scholars of unjust enrichment, first in the United States and subsequently in England; though as in the other areas of obligations, by the end of the twentieth century, there was no consensus on whether this was possible.


2020 ◽  
pp. 88-109
Author(s):  
Russell Crandall

This chapter recounts how the United States in the nineteenth century permitted considerable personal freedom of choice regarding drugs, citing the idiosyncrasies of the U.S. Constitution that helped ensure potent forms of opium, cocaine, and cannabis remained widely available nationwide. It talks about how the American legal system made states responsible for regulating drugs, particularly opium and cannabis, on their own turf. It also discusses how most states and several major cities by 1910 had anti-drug laws wherein ritual police raids were a hallmark of the states' haphazard enforcement schemes. The chapter recounts the first efforts at drug control at the federal level, which were designed not to break up underground dealer networks but to regulate the runaway pharmaceutical market. It refers to the Pure Food and Drug Act in 1906, which simply mandated that certain active ingredients meet standardized purity requirements and forced drug makers to label in a clear way any of ten ingredients considered unsafe.


2011 ◽  
Vol 29 (2) ◽  
pp. 375-417
Author(s):  
Sachin S. Pandya

This article studies the rise and fall of the first liability insurance cartel in the United States. In 1886, insurance companies in America began selling liability insurance for personal injury accidents, primarily to cover business tort liability for employee accidents at work and non-employee injuries occasioned by their business operations. In 1896, the leading liability insurers agreed to fix premium rates and share information on policyholder losses. In 1906, this cartel fell apart.


2006 ◽  
Vol 34 (2) ◽  
pp. 390-397 ◽  
Author(s):  
Tania Simoncelli

Over the past fifteen years, the United States has witnessed an extraordinary expansion in the banking and mining of DNA for law enforcement purposes. While the earliest state laws governing forensic DNA limited collection and retention of DNA samples to sexual offenders – on the theory that these persons were especially prone to recidivism and most likely to leave behind biological evidence – today forty-three states collect DNA from all felons, twenty-eight from juvenile offenders, and thirty-eight from those who commit certain categories of misdemeanors.A few states have expanded their databases beyond convicted criminals. Virginia, Louisiana, Texas, and California have authorized DNA retention from persons merely arrested for various offenses, although to date only Virginia has implemented such a program. At the federal level, an ill-considered statute that allows for the seizure and storage of DNA from anyone arrested and from non-U.S. citizens detained under federal authorities was recently signed into law.


Author(s):  
Acheoah Ofeh Augustine

This article is a critical input to the national and international debate on Gun Control and the 2nd Amendment to the United States Constitution since 1791. Auspiciously, the paper interrogates the historical, ideological, and socio-cultural roots of the Gun Rights from Medieval Europe to modern America as well as its implications for homeland security in 21st Century American society. The whole legalistic, philosophical and socio-cultural rationale for and against the Gun Control Question in mainstream American politics elicits many questions: Why has it been legislatively infeasible to address the frailties inherent in the 2nd Amendment texts? Is the Second Amendment immutable amid post-1791 realities? Has morality lost its place in American politics? Was the rights prescribed under 2nd Amendment vested on the individuals as construed impliedly or on the people as expressly stipulated in the constitution? And why has America with the most sophisticated military and intelligence architecture in the world failed to demonstrate the capability to contain sectarian killings in the land? The paper submits that the Gun Control Debate lays bare, one of the internal cleavages within the American political and social system, a nation so admired not just by her military, economic and diplomatic clout but also by the valued she stresses and defend world over: freedom, justice, equality and global peace, ideals for which the United States supplanted pax-Britanica for Pax-Americana. The appalling antecedents of gun killings in America knows no rank with 11 presidential assassination attempts for which four American presidents died: Abraham Lincoln (1865), James Garfield (1881); William McKinley (1901) John F Kennedy (1963) with Theodore Roosevelt and Ronald Reagan seriously injured in the 1912 and 1981 assassination attempts. The quartet presidential assassins: John Wilkes Booth; Charles J. Guiteau; Leon Czolgosz and Lee Harvey Oswald were all some of the first high profile abusers of the 2nd Amendment and the gun rights it granted. The death of Dr. Martin Luther King, Malcolm X among many also resonates one of the foundational flaws of a nation globally reputed as the policeman of the earth. When will this trend ever end?.Millions have gone yet there seems to be hyper-partisanship about the Gun Control Question. This political cleavage represents a failure of the present generation of the political elites, the people and the American institutions to rise above and repeal the frailty of the 2nd Amendment, couched in one of the most nebulous languages in constitutional framings since the first ten Amendment to the world’s first-ever written constitution was ratified on 15 December 1791.The lessons from the government response to the Gun Question never placed America as a society developing societies should aspire to become, it is totally antithetical to the admirable values known about the greatest nation since the collapse of Nazism, Fascism and in the last decade of the 20th Century Communism for which in the submissions of Francis Fukuyama, Liberal Democracy became the Last Man metaphorically outlasting all other contending ideological contemporaries thus: “The End History”. The moral, spiritual, political leaders of America must converge on one front on the Gun Question, the Republicans must not hide under conservative garb and watch the blood of innocent generation of Americans been wasted by abusers of the Second Amendment. The appropriate measures to put a permanent lid on the mindless gun-related deaths must be carried out. The Democrats must forge a bipartisan consensus to arrest the moral drift in the land under the guise of the 2nd Amendment’s immutability clause: “shall not be infringed upon”. American political leaders must not under whatever guise send the wrong signal to the international community that will characterize the state as a policeman that cannot police his home, Charity begins at home, it is contradictory, antithetical and undermined every value upon which America prides herself under the rubric Pax-Americana. Historical antecedents show that the National Rifle Association is a shadow of itself, haven being skewed from its original goal to promote martial qualities and marksmanship to a lobbyist group without conscience for humanity. The American Institutions must live up to their mandate to tame the sinister and overbearing influence of the group. To the political leaders of the land the patriots of the 1775 Revolution fought for a land of the free it is your bounden duty to ensure their labor never be in vain: Lincoln was conscious of this during the heady days as was Andrew John who put their differences aside to restore national psyche, President Trump must not trade the blood of the children of America with his 2020 presidential re-election ambition as the NRA pro-Trump for 2020 billboards suggests. The Gun-Control debates further lays bare one of the antinomies of American Conservatism “being pro-life, anti-abortion and at the same time, pro-gun” as the abuses and defense of the 2nd Amendment represent one of the Ideological conspiracies against under the garb of Classical Liberalism propagated by contemporary votaries of American conservatism.


Sign in / Sign up

Export Citation Format

Share Document