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Professor Cranor Law and Society 100 Fall 2013

Shortcomings of the Tort Law 1. Tort actions are essentially retrospectivePart of partial compliance theory; compensation for failure of the legal system to prevent harm or legal violation from occurring. No prospective protections, except any general deterrence that is achieved by announcing that certain kinds of conduct are illegal and are sanctioned by the threat of a tort suit, or deterrence by example, an example made of others, but there is some of this. How protective is torts? Eads and Reuter claim that product liability cases are far more protective than administrative law to induce companies to make safer products, but it probably offers only weak deterrence. A Cornell medical malpractice study says that it does its protective job "crudely." (Only 2 % of meritorious cases are brought to attention of the tort law.)

Saks suggests that while there is little reason for thinking that tort law actions would be brought or be successful, it may be more effective than one thinks because people have greater fear of tort suits than data would indicate. Still sometimes torts has major role in removing dangerous products 2. Proof of causal connections is difficult in some cases: When plaintiffs are dispersed. When there are long latency periods for the harms involved.

Professor Cranor Law and Society 100 Fall 2013

When there is low level of harm but many may be exposed. When there is statistical proof of causation (because of tort law proof requirements). When there are multiple possible causes and the evidence is statistical in nature causation (because of tort law proof requirements). 3. Causation is fortuitous and becoming more so, especially in toxic tort cases (when the harms are caused by invisible molecules and scientific evidence must be provided to show harm); it is especially difficult to identify victims and causes of harm. 4. Defendants may be judgment proof--unable to pay the compensation awarded.

5. Enforcement (administrative) costs are typically on the plaintiffs attorneys, thus suits may not be brought if the probable returns to his/her attorney are too low. The costs would then lie where they fell on the plaintiff/victim. 6. The tort law is atomistic--addresses harms occurring to individuals who believe they can show they were harmed. It does not necessarily address all of a group subject to harm. It does not address problems in a comprehensive manner and does not typically provide systemic protections.

7. Some issues simply cannot be addressed by means of torts, e.g., CFCs, PCBs injuring Eskimos, many air or water pollution issues, as well as

Professor Cranor Law and Society 100 Fall 2013

generic problems in the workplace. Tort law appears to provide a poor mechanism to prevent harms in the first place, although this may depend upon the kind of issue being brought. 8. Regulatory law is part of strict compliance theory, but it has penalties for failure to comply with regulations.

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