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Historical insights and a fresh perspective on the politics and possibilities for sensible tort reform

Understanding Enterprise Liability

Rethinking Tort Reform for the Twenty-First Century

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Virginia Nolan and Edmund Ursin

In recent years critics have assailed the cost, inefficiency, and unfairness of American tort law, including products liability and medical malpractice. Yet victims of accidental injury who look to the tort system for deserved compensation often find it a formidable obstacle. Those who seek to reform tort law find legislatures, particularly the United States Congress, paralyzed by the clash of powerful special interest groups.

Understanding Enterprise Liability sheds new light on the raging tort reform debate by challenging its fundamental assumptions. Offering historical insights and fresh perspectives on the politics and possibilities for sensible reform, Virginia Nolan and Edmund Ursin pragmatically assess alternative routes to a workable, balanced, and equitable system of compensation for personal injury. They offer a specific proposal, based on the precedent of strict products liability that incorporates the insights of no-fault compensation plan scholarship to create an enterprise liability doctrine that should appeal to courts and to tort reformers.

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Contents

Acknowledgments

Part I: Enterprise Liability: An Introduction
1. Contemporary Tort Reform and Enterprise Liability
2. Traditional Tort Theory and Enterprise Liability: An Overview

Part II: The Compensation Plan Strategy
3. Workers' Compensation Plans and Enterprise Liability
4. Leon Green: Explication and Application
5. The Columbia Plan and Dashed Hopes
6. Renewed Focus on Compensation Plans in the 1950s
7. The Keeton-O'Connell Plan, Legislative Successes, and Proposed Extensions of No-Fault
8. Dashed Hopes (Again) and the Need for Alternatives

Part III: The Common Law Strategy
9. Leon Green and the "Tort" Version
10. Karl Llewellyn and the "Sales Law" Version: Strict Products Liability Proposed
11. Perspectives on Courts and Legislatures: The 1930s
12. Increased Focus on the Common Law: The 1940s
13. The Possibility of a Judicially Created Strict Enterprise Liability
14. Strict Products Liability: Recognition and Adoption
15. The Damages Agenda of the 1950s
16. Common Law Successes and Proposed Extensions

Part IV: Enterprise Liability in Tort Theory: 1960-1993
17. The Success and Fragmentation of the Theory of Enterprise Liability
18. The Emergence of (Calabresi's) Economic Analysis as an "Ally" of Enterprise Liability
19. The Antagonism Between Calabresi's Economic Analysis and Enterprise Liability
20. The Ascendancy of Economic Analysis and Its Opposition to the Enterprise Liability Agenda
21. Contemporary Tort Theory and the Reinvention of Enterprise Liability

Part V: The Contemporary Agenda of Enterprise Liability
22. The Legislative Agenda
23. The Need for Alternatives to Legislation
24. A Common Law Proposal

Notes
Index

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About the Author(s)

Virginia E. Nolan is Professor of Law at the University of San Diego Law School.

Edmund Ursin is Professor of Law at the University of San Diego Law School.

Together they have authored numerous law review and popular articles, as well as the California Trial Lawyers Association's amicus brief in Becker v. IRM Corporation that led the California Supreme Court in 1985 to extend the strict products liability theory beyond products to apply to landlords.

Subject Categories

Law and Criminology
History

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