August 29, 2006

Fall, When 1Ls' Thoughts Turn

by PG

I know that torts class has started at a Virginia law school, based on multiple hits from Google searches for Hammontree v. Jenner. My opinion on the case hasn't changed; indeed, the only aspect that surprises me is that Will Baude, properly belonging to the Chicago school and taught at Posner's knee, disagreed with me.

Surely there is far more utility to society at large, and not just to the individual epileptic, when someone with a well-controlled condition is a highly functional member of that society, rather than one who is hobbled by the fear that the condition might nonetheless rear up unexpectedly, and that if it does so, he should be strictly liable for any damage that results. Negligence is a different matter, and I'm inclined to apply strict liability to individuals only in the criminal law, and that only when the activity is of questionable social value (e.g., extra-marital sex with or the sale of alcohol to people who turn out to be under the proper age).

But then, while Will preferred the merely muddled world of contracts (and I suspect property as well), I found myself with a sick enjoyment of subjects like torts and criminal law. The exam questions tended to be extraordinary piles of bad behavior, literally fireworks and fires of multiple malfeasances, that made me want to shake my head and say "Oh no you di'n't!" as I issue-spotted.

UPDATE: Will's response commits the law school sin of challenging both the framework for analysis and the hypothetical itself. The question in Hammontree is supposed to be about whether to apply negligence or strict liability; the case is framed so that we are not to consider the epileptic negligent. Will does a nice litigator's job of calling him a "quasi-medicated epileptic," an "imperfectly medicated epileptic" "who knows himself to be prone to fits of epilepsy" and is a "chronically and uncontrollable dangerous driver," but Jenner in fact had not had such an attack 14 years prior to the accident and was deemed safe to drive by the DMV. Will proposes insurance as the solution, and Hammontree did argue "that the insurance carriers should be the ones to bear the cost of injuries to innocent victims on a strict liability basis." But if they did, insurance rates would be so high, particularly for someone with even an ancient history of medical problems, that Jenner never would have been able to obtain any.

August 29, 2006 12:00 AM | TrackBack
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