Strict Products Liability 2.0: The Triumph of Judicial Reasoning Over Mainstream Tort Theory

Strict products liability has evolved in a manner that is widely misunderstood. The liability rule was first formulated to govern defective products that did not minimally perform one of their ordinary functions as expected by consumers—a malfunction that violates the implied warranty of quality. After adopting this rule, courts began applying it to products that did not malfunction and found that a test for defect based on consumer expectations often is indeterminate or can otherwise unduly limit liability in an important class of cases. To address these problems, most courts adopted the risk-utility test, a form of cost-benefit analysis that functions like the negligence standard of reasonable care. Relying on these cases, the Restatement (Third) of Torts: Products Liability embraced the risk-utility test, jettisoned the consumer expectations test, and characterized strict products liability as a misleading label that perpetuates confusion about liability being strict when it instead is based on negligence. In response, a clear majority of courts have rejected this negligence-based framework and affirmed the continued vitality of strict products liability. Puzzled by this unexpected development, mainstream scholars claim that courts are confused by the rhetoric of strict products liability. The prevailing scholarly opinion about this matter is confused; its fixation on negligence ignores the implied warranty rationale for strict products liability. Having been largely formulated as a rule of contract law, the implied warranty is under-theorized as a tort doctrine. Once adequately developed, the tort version of the implied warranty shows why courts have transformed the rule of strict products liability from the last century into a more comprehensive regime—“strict products liability 2.0”—that relies on consumer expectations to incorporate the risk-utility test into the framework of strict products liability. As compared to ordinary negligence liability, the implied warranty defines the safety problem in the normatively appropriate manner, thereby sharpening the inquiry about what’s at stake. In dismissing this important development, mainstream tort theory relies on legal categories that fundamentally differ from the ones courts have used to develop strict products liability with analogical reasoning. Scholars have either resorted to overly general theories of tort liability or have otherwise focused on narrow doctrinal questions. By not engaging in the mid-level categorical theorizing required by analogical reasoning, the mainstream position could not see how this characteristic form of judicial reasoning has created the substantively sound regime of strict products liability 2.0.

Law and Logic: E. Bulygin’s Deductive Pattern of Judicial Reasoning

In the twentieth century, the debate over the possibilities and limits of logic in law became particularly acute with the emergence of judicial realism, a philosophical and legal trend that denied the deductive nature of judicial decision-making. This compromised the theory of the judicial syllogism, assuming that a judicial decision could be deduced as a logical consequence from the premises - norms and facts, and generally provoked a sceptical attitude towards logic in law. The subject of the article is the deductive model of the justification of judicial decisions proposed by the outstanding legal philosopher Eugenio Bulygin. The aim of the article is to show Bulygin’s contribution to the improvement of the deductive model of judicial reasoning. The main innovations Bulygin brought to the deductive model of judicial reasoning are: 1) justifying, based on logical analysis and open texture of language theory, the analytical character of the court interpretative sentences; 2) distinguishing the individual and the generic subsumptions, etc. At the same time, the authors conclude that Bulygin’s improved deductive theory is not free from criticism, as the Argentine jurist does not succeed in complete eliminating doubts about the logical deducibility of at least some categories of decisions from general rules.

All smoke and mirrors? The Taylor litigation and issues surrounding the smoking ban in New Zealand prisons

<p>A 2005 prisoner health survey found that almost three quarters of the New Zealand prison population identified as smokers. Tobacco was deeply engrained in prison culture and smoking was viewed as an aid for managing the stress and boredom associated with prison life. The Department of Corrections implemented a policy on 1 July 2011, banning smoking in all areas of all prisons in New Zealand. The policy aimed to improve the long-term health of prisoners, and create a healthier workplace environment. Arthur Taylor, a notorious and litigious criminal, successfully challenged the delegated legislation implementing the policy by way of judicial review. This paper argues that the judicial reasoning was flawed, as it was based on erroneous assumptions without a thorough assessment and interpretation of the legislative history. Despite Taylor’s successful claims, the smoking ban was then incorporated into primary legislation. This paper examines the method of implementation, finding issues with retrospective and privative clauses introduced by a late stage supplementary order paper. Prisoners are a group especially vulnerable to curtailment of rights and freedoms, and this paper concludes that removal of the freedom to smoke in prison cells and outside in prison yards was a step too far.</p>

All smoke and mirrors? The Taylor litigation and issues surrounding the smoking ban in New Zealand prisons

<p>A 2005 prisoner health survey found that almost three quarters of the New Zealand prison population identified as smokers. Tobacco was deeply engrained in prison culture and smoking was viewed as an aid for managing the stress and boredom associated with prison life. The Department of Corrections implemented a policy on 1 July 2011, banning smoking in all areas of all prisons in New Zealand. The policy aimed to improve the long-term health of prisoners, and create a healthier workplace environment. Arthur Taylor, a notorious and litigious criminal, successfully challenged the delegated legislation implementing the policy by way of judicial review. This paper argues that the judicial reasoning was flawed, as it was based on erroneous assumptions without a thorough assessment and interpretation of the legislative history. Despite Taylor’s successful claims, the smoking ban was then incorporated into primary legislation. This paper examines the method of implementation, finding issues with retrospective and privative clauses introduced by a late stage supplementary order paper. Prisoners are a group especially vulnerable to curtailment of rights and freedoms, and this paper concludes that removal of the freedom to smoke in prison cells and outside in prison yards was a step too far.</p>

Discovering the Value of Liberty in Intellectual Property Adjudication: A Methodological Critique of the Reasoning in Discovery Ltd v Liberty Group Ltd 2020 4 SA 160 (GJ)

This article discusses the recent decision in Discovery Ltd v Liberty Group Ltd 2020 4 SA 160 (GJ), which concerned a claim of trade mark infringement in terms of sections 34(1)(a) and 34(1(c) of the Trade Marks Act 194 of 1993 and unlawful competition on a developed reading of the common law. This article argues that the court arrived at the correct conclusion by the incorrect means and failed to adequately construe the array of constitutional interests and considerations that pertained to the matter on the facts. Further, the lack of clarity on the appropriate constitutional port of entry for the judicial enquiry unnecessarily leaves future courts guessing regarding the correct methodology to employ in cases where intellectual property rights are asserted in opposition to constitutional rights and interests. It is argued that the transformative impetus of section 39(2) of the Constitution of the Republic of South Africa, 1996, as well as numerous substantive constitutional provisions are undermined when courts neglect to anchor judicial reasoning in the constitutional context and merely apply a constitutional veneer to whatever outcome has already been reached. Accordingly, we argue that courts are under a general obligation to root all adjudication in constitutional norms and method, which, we submit, secures a thicker concept of the value of liberty than has been produced in this decision.

Part IX International Environmental Law in National/Regional Courts, Ch.64 India, Bangladesh, and Pakistan

This chapter focuses on international environmental law (IEL) in the courts of India, Bangladesh, and Pakistan. Review of the case law reveals that Indian courts have led the adoption of the IEL principles in this region, with occasional references to IEL by Bangladeshi and Pakistani courts. This appears to follow the trend of non-environmental cases, where also the Bangladeshi and Pakistani judiciary is more reluctant than the Indian courts to turn to international law. Although courts in the three countries have engaged with IEL, it has mostly been at a superficial level. Their reliance on IEL is not always accompanied by strong judicial reasoning, making it difficult to determine their content and scope, and even their relevance in particular scenarios. Given development imperatives in these countries, courts are often faced with the ‘economy/development versus environment’ question. In such situations, the courts rely on IEL in an instrumental fashion in support of the final outcome of the case, rather than engaging with the substantive content of the IEL principle.

12. Legal reasoning and ethics

This chapter provides an introduction to legal reasoning. It first outlines the skills to analyse how judges decide cases. There are various points of view that judges can (and do) take in deciding the outcomes of cases, so the chapter introduces some of the theory behind judicial reasoning before moving on to show how judges reason in practice, how one case can give rise to multiple judgments, and the importance of legal ethics.