Harold Luntz wrote:
-------- Original Message --------
Chaim,
One area where the Commonwealth beat the US in liberalising the law
(through legislation) was in relation to contributory negligence.
England allowed for reduction of damages instead of a complete defence
from 1945 and this was followed by legislatures throughout the
Commonwealth. Canadians may even be able to tell you that legislatures
there went first. John Fleming once told me that it was almost
impossible to get such legislation through US legislatures because of
lobbying. I think he also said that legislatures passed legislation
only every second year and this added to the difficulty. Of course, the
US courts eventually got tired of waiting, some introducing so-called
comparative negligence rules, with variations among the different
jurisdictions.
According to Gary Schwartz, 'The Beginning and the Possible End of the
Rise of Modern American Tort Law’ (1992) 26 Georgia L Rev 601
at 688–9', Sindell and market share hasn't worked in practice
and didn't spread beyond DES. A law reform committee in South
Australia, while refusing to recommend its adoption, pointed out that
we were long familiar with the notion in our provisions for compulsory
insurers to bear proportionate liability for unidentified and uninsured
drivers.
On what the US can learn from the Commonwealth re liability for pure
economic loss in negligence, see Jane Stapleton, 'Comparative Economic
Loss: Lessons from Case-Law-Focused "Middle Theory"' (2002) 50 UCLA
L Rev 531.
For what it is worth the High Court of Australia also ventured into the
third party beneficiary area in Trident General Insurance Co Ltd v
McNiece Bros Pty Ltd (1988) 165 CLR 107; 80 ALR 574.
I hope these quick thoughts are of some help to you.
Harold.
Chaim Saiman wrote:
Dear Obligationists
Since the law and
theology
discussion ended in a big thud, I’ll return to issues more
traditionally
associated with this forum. J
In essence am
looking for a rough
catalogue of major differences in US vs. Commonwealth substantive law
private.
My basic sense is that (for the period 1930- 1980), American law was
significantly more expansionary (liberal) than the law of Commonwealth
jurisdictions. Moreover, even in places where Commonwealth law
expanded: (i)
the US was likely to do so earlier and, (ii) US law was more likely to
change
via judicial development whereas CW countries may have relied more
heavily on
the legitimization of legislation (EG. the third party beneficiaries
legislation in UK vs. American common law development in this area). In
short,
US courts were far quicker to give up on the technicalities of the
common law
(e.g. privity) that traditionally constrained the expansion of
liability.
Here are a few examples that come to mind.
- The Allen v. Flood / Tuttle
v.
Buck debate regarding prima facie torts recently discussed in OBG
v.
Allan.
- Debate over whether promissory
estopple/Restatement Contracts § 90 can be used as a cause of action,
and related, whether there is any difference between the various forms
of estopple.
- Theories of “enterprise” or
“market
share” liability in tort that elide difficult questions of causation in
the mass tort context. These had their heyday here in the 60’s and
70’s, and my sense is that they were never accepted in much of the
Commonwealth.
- Doctrine of equitable
subordination
in bankruptcy which allows a court to move creditors up and down the
priority chain. This doctrine was developed by US courts without
statutory authorization---but is now codified in the Bankruptcy Code.
I’ve heard that this is far more controversial in CW.
- The doctrine of oppression in
corporate law and whether majority shareholders owe any fiduciary
duties towards the minority. My sense is that US courts (rather than
legislation) are more willing to find rights that protect minority
shareholders from than in the CW. This seems limited to the close
corporation context.
[While In reality, of course, the differences
are far more
likely to be relative than absolute, but I don’t think that changes the
basic premise underlying this email. ]
Basically, I am
looking for any
other examples, counterexamples, scholarship that addresses the
question
comparatively or explores these questions within the national/
intra-commonwealth perspective. Real property examples similarly
welcomed, and
most importantly, feel free to plug your own work!!
Thanks much,
Chaim
Chaim Saiman
Assistant Professor
Villanova Law School
610.519.3296
saiman@law.villanova.edu
view my research at http://ssrn.com/author=549545
Another area where arguably England and the Commonwealth were (and
largely are still) ahead concerns malpractice damages against lawyers.
If my lawyer negligently loses my suit, my understanding is that in
most -- though admittedly not all -- US states I have to prove that but
for the screw-up I'd have won. If I can I scoop the pool: if I can't
show it on a balance of probs I get nothing. England went decisively
for loss of chance damages here in 1957 (Kitchen v RAFA [1958] 1 WLR
563) and more recently confirmed that the same rule applied where the
client proved a more-than-50-but-less-than-100 chance: Stovold v
Barlows (1996) 71 P. & C.R. D3.
Andrew
--
Andrew Tettenborn MA LLB
Bracton Professor of Law
University of Exeter, England
Tel: 01392-263189 / +44-392-263189 (outside UK)
Cellphone: 07870-130528 / +44-7870-130528 (outside UK)
Fax: 01392-263196 / +44-392-263196 (outside UK)
Snailmail: School of Law,
University of Exeter,
Amory Building,
Rennes Drive,
Exeter EX4 4RJ
England
Exeter Law School homepage: http://www.law.ex.ac.uk
My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml
LAWYER, n. One skilled in circumvention of the law (Ambrose Bierce, 1906).