So I finished chapter 2 which covered some changes to tort/contract law. It didn’t share too much in the deeper thought process behind the change. It just said it did change because of these judges and it changed in these certain respects.
Chapter 2: The Death of Contract
Not all painful or harmful acts are torts, however. Consent, or its absence, distinguishes many harmful acts from tortious ones, or at least it used to.
The beer might perhaps injure Baker every bit as much as the blow. But his willingness to buy and consume the drink made a crucial difference. The old common law took the concept seriously enough to render it in Latin: volenti non fit injuria —“to one who is willing, no wrong is done.”
It used(?) to be that actions were tortious where consent was absent. The book mentions that tort was generally used for things such as car accidents and battery (hitting someone). Such things where people rarely, if at all, have contracts governing expectations and what should happen and stuff.
Most accidents and injuries were covered by contract, not by tort. Tort rules applied, of course, if Smith and Baker collided on the highway as utter strangers. But aside from collisions on the road, mishaps between strangers are comparatively rare. Workplace accidents are preceded by a contract between willing employer and employee; surgical accidents by a consensual doctor-patient relationship;
A lot of accidents happen between parties with an established relationship. In establishing that relationship they typically will have contracts that define what they will (and won’t) do in cases of accidents and mistakes. This was true even when purchasing products (though this Vandermark v. Ford Motor (Maybell) did play a part in overturning that):
Chester Vandermark and Maywood Bell landed to- gether in court only because they had earlier come together amicably in the sale of a car. And their contract unquestionably did cover responsibility for accidents; it spelled out that Maywood Bell would be liable for the replacement of defective parts, and nothing more.
Moving on:
Nobody wants the accident, of course, but everyone enters the deal aware that it may happen anyway. No doubt we’d prefer to get food, shelter, transportation, and medical care without paying any safety price for them; we’d rather not pay a cash price either. But neither option exists in the real world, or so at least the old law stoically presumed. The common sense of the day suggested that the contingency of an accident should be addressed ahead of time, when tempers are cool and minds clear. The old rules therefore placed great weight on the initial agreement. Buyer and seller were allowed to set the terms of their own deal, on questions of safety just as on questions of price. The courts viewed the Chester Vander- marks of this world as intelligent adults, whose freely made contractual commitments were to be respected and enforced as bargained for.
I think that makes sense that accident stuff “should be addressed ahead of time, when tempers are cool”. It also makes expectations knowable. Currently you kind of figure out what you are liable for after the fact. You caused X damages and you are suddenly liable for them. Previously (assumably) you know beforehand what you would reasonably held liable for and what you wouldn’t be held liable for.
He then goes onto give some history of tort/contract:
If a person promised to build you a house but did a bad job of it —roof caving in, crumbling foundation, no chimney for the fireplace you could sue. As they always do, the common-law judges borrowed from their own history. Your rights had been trampled on by the incompetent carpenter, they now reasoned, in much the same way as your rights would have been offended if a stranger wandered onto your estate without invita- tion and camped on the land —hence the use of the word trespass.
Ok. So it’s not that liability for mistakes and bad work is new. Its just what you can be liable for thats new it seems.
The earliest contract cases recognized no remedy if the builder or the doctor had promised to build the house or cure the disease and never bothered to show up for work at all. In the fifteenth and sixteenth centu- ries, common-law courts developed the writ of assumpsit which reflected a new recognition that harm could be done because someone had done nothing, after promising otherwise.
With the writ of assumpsit, which became the cornerstone of modern contract law, we arrive at the very definition of contract. It comes down to us from nearly a half millennium of use: A contract is a promise or set of promises, freely made between willing parties, which the law will then enforce.
So prior to the writ of assumpsit we didn’t have the modern view of contracts, since, without it, you couldn’t do anything about broken promises where one party did nothing. You could previously sue for doing a bad job at X, but you could’t sue for not doing X at all.
Contract law —the whole idea of making persons stick to their agree- ments and promises — is thus rooted in a notion of consumer protection.
It reflects the idea that unless the law holds people to the bargains they make, the unscrupulous and irresponsible will exploit the conscientious and trustful. And it serves to put the powerful and the humble on the same plane. Great lords and ladies may not need a court’s help to keep a carpen- ter from defaulting; they control many future building commissions and a whole apparatus of local power as well. The yeoman householder may have nothing but the law on his side. It is surely one of the greatest ironies of modern law that latter-day reformers have come to see contracts as nothing more than a stacked game in which producers hold all the cards, a mere pretext for the oppression by the weak of the strong. History teaches otherwise.
I get the point he’s making here but I think the issue many people have nowadays is the one sided nature of contracts (and the fact that companies ignore their side of the contract a lot). The regular person, generally, can’t negotiate with a big corporation about their contract. You just accept what you’re given and usually the terms are quite unfavorable to the regular person.
The value of what McGee had promised but failed to deliver, of course — a usable hand with neither hair nor pencil-sized scar. It was quite irrelevant that no known surgical techniques of the day could have pro- vided a scar-free hand. Contract rules were unequivocal and they were symmetric. If the seller promised nothing in the way of safety or success, that was just what the buyer got. But if the seller promised the moon, as McGee foolishly did, he would have to deliver or convey the equivalent in money.
So damages were limited to what was promised?
The same principle extended to every contract. An employee either “assumed the risk” of performing the job or spelled out the terms of job safety and compensation for injury as part of the employment contract. The buyer of a drug, house, horseless carriage, or scar-free hand did the same. To be sure, there might be legitimate disagreement about what the contract really provided. The common law recognized that in regular deal- ings between buyer and seller, or employer and employee, certain obliga- tions were assumed by common though unwritten consent. If nothing else was said, for example, the employer was assumed to have committed itself to provide safe tools and a fair warning of unusual dangers in the work- place. But the general rule was that contract was king. If they worked at it, the parties could allocate risks and responsibilities in any way they might choose.
In the eyes of the old law, then, a deal was really a deal. The rule of — caveat emptor “let the buyer beware” —prevailed, as it had in both England and America since time immemorial. But the rule would more accurately have read caveat emptor et vendor; the seller was bound by the terms of the deal too. McGee, after all, came to grief by promising more than he later delivered.
A manufacturer selling a product, an employer purchasing a service, or a doctor providing one could insist that the deal was on only if the other party agreed to bear the costs of any accident. By the same token, the buyer, the employee, or the patient could demand a guarantee of satisfaction or success before proceeding. One way or the other, agree- ments routinely did address health and safety risks.
If a baker —or equally well, as the Court sagely noted, a “printer, a tinsmith, a locksmith, a carpenter, a cabinetmaker, a dry goods clerk, a bank’s, a lawyer’s or a physician’s clerk, or a clerk in almost any kind of business” —chose to kill himself on the job, that was entirely his own affair, and his employer’s; the State of New York had no right or power to interfere.
After less than two months of research, it settled on and began to ship a mixture of diethylene glycol and water flavored with raspberry extract. The formula, never tested in animals, promptly killed 100 people. The president of the company was politely apologetic, but not much more. “My chemists and I deeply regret the fatal results,” he declared, “but there was no error in the manufacture of the product. We have been supplying legitimate professional demand, and not once could have foreseen the unlooked for results. I do not feel that there was any responsibility on our part.” And he was quite right, at least under the strictest buyer-beware principles. If users of the drug had wanted a guarantee of its safety and effectiveness, they should have demanded one before buying. No such guarantee had been provided. As it happened, the tort law for medicines was already in flux, and the families of some of the Massengill victims did have their day in court. But countless other victims of similar accidents did not. For the most part, a deal was a deal, even when it worked out appall- ingly for one side or the other.
Now we move onto the period of change:
The courts, entirely on their own initiative, soon adopted a complementary set of changes in the tort law. The new rule that eventually emerged was straightforward: If Smith said nothing to the contrary when selling food or drugs, he implicitly promised Jones that the product was fit for human use. If Smith had any reservations about that fitness, he had to spell them out expressly. In lawyers’ argot this was called an implied warranty —an unwritten promise of "fitness for intended uses.'“
The above idea was based, in part, by the fact that now that we had (or should have) better access to cleaner food and water it is a reasonable assumption to think you’re buying good product (as to I guess before it made sense to assume you would be buying product that may not be so great).
Contract was still paramount, but warnings for the first time became an integral part of the contract.
I think that makes sense. I remember Miss Rand had a similar sentiment in relation to pollution. Smog and other pollutants from fires and factory are fine because the alternative is worse. As things got better though they became less fine. It used to be assumed that most stuff wasn’t well made and risky (I guess?) and now we expect a certain level of quality and assurance of safety.
One advantage they enjoyed from the beginning was in not having to work through a refractory political process, or even to explain their reforms to the unwashed public at all. The right to sue your doctor for malpractice, for example, is not expressly provided for in any written statute; it exists only because the current crop of judges says it does. Their say-so com- mands respect because generations of judges before them have said much the same thing. Judges who want to preserve the authority of the law they make need not seek any mandate from the people. But they do have to proceed cautiously, or at least appear to, for the public legitimacy of the common law derives from its antiquity and apparent stability.
I think this is a big issue with the common law. Its created by judges rulings. People are generally made aware of the law that is created here at the highest levels (SCOTUS, though people only know about certain SCOTUS decisions), but unaware of all the law that is being created and changing all around them by judges. Changed, not by legislatures, but by judges opinions on the matter. So judges can, comparatively, quite easily change the law. Don’t do rulings that are so outrageous. So long as its not too outrageous you can change the law slowly. After all most people don’t even know what the law is, especially when it comes to tort matters.
Accidents are socially costly, they pointed out, and the law should encourage accident prevention by the most economical means. To that end, liability should fall not on the person most “at fault” in some traditional sense, but on the one who could prevent any given accident at the lowest cost. And just who might that be? Most often, those who provide goods and services, not those who consume them. Corporations, hospitals, city governments, universities, and other institutions, unlike the individual consumer they serve, are accident ex- perts. They could compile scattered accident reports and discover recurring safety problems that individual users might never suspect. They could warn consumers of likely hazards, redesign products, or keep dangerous items out of the hands of irresponsible buyers. Even when there was no immediately feasible way to eliminate a hazard, billing producers for acci- dents would spur them to search constantly for improvements in their wares. By a happy coincidence, ultrastringent producer liability would further other desirable goals as well.
I wonder if this is where the concept of holding the master liable came from (I forgot the legal term), where an employer is responsible for the torts of the employee.
In the course of the 1960s and early 1970s, judges across the country embraced the new creed, first in their hearts, then increasingly in their rulings.
This reminds me: I saw a book recommendation for this book called Schools for Misrule: Legal Academia and an Overlawyered America: Olson, Walter: 9781594032332: Amazon.com: Books
It apparently talks about how the reason the legal world is the way it is is because of legal academia. From what I know of the book it covers more modern schooling/teaching but I ~wonder. I wonder if part of the culture the judges created came from the schools they just graduated from. Probably.
Most transactions were matters of contract, and most con- tracts allocated risks in ways not approved by the Founders. The first and most important step, then, was to bury the old notion of contract.
It took roughly twenty years, from about 1960 to 1980, to rewrite the common law of accidents from beginning to end.
The courts started profitably with the subject of silence. In the old days, if the buyer and seller of a lawn mower said nothing at all about safety, the buyer took all the risk. This followed a more general principle that every term of a contract has to be expressly affirmed by both sides before it comes into existence. But it is almost as fair to decree the opposite: If a contract says nothing about safety, the parties on both sides presume the best, not the worst, and if an accident happens the seller is responsible.
But the New Jersey Supreme Court ruled for Helen nonetheless. “Under modern marketing conditions,” the court de- clared, “when a manufacturer puts a new automobile in the stream of trade and promotes its purchase by the public, an implied warranty that it is reasonably suitable for use as such accompanies it into the hands of the ultimate purchaser.”
A new general rule emerged: Courts would presume that silence on the question of safety meant that the seller of a consumer product promised the moon.
If this is not too much of an exaggeration, that’s kinda crazy. I get assuming some level of safety. I don’t get the assumption that the seller “promised the moon”.
It is curious to consider, however, what a cheap article ink is, and how far it can be made to go. Those empty spaces could be filled with more print, and they soon were. Many sellers were not at all eager to accept more liability for accidents. If the courts were going to read a no-accident guar- antee into their silence, sellers would take pains to speak up. The lawn mower contract would say, in large and conspicuous type, that the device was very dangerous, that it frequently amputated toes and fingers, and that its manufacturer had no intention whatsoever of paying the hospital bills, which surely would arrive in short order. And in the law’s unending battle of words, express disclaimers still trumped implied warranties every time. Sellers began to use them in torrents.
The objective for the reactionaries was to write disclaimers of liability that would stick. The objective for the reformers was to get over, under, or around disclaimers one way or another. It wasn’t really a balanced contest, because the reformers had by then captured the courts, and the courts always had the final word.
So the reasoning behind saying a seller promised the moon had less to do with “clear” and good logic and instead had more to do with trying to get what they wanted into law.
This death-by-painful-scrutiny method for killing contracts worked well enough for a while, but it contained the seeds of its own downfall. Each disclaimer case taught the losers another lesson, and they grew in- creasingly skilled at spelling out just what they wanted to sell (a lawn mower, say) and what they did not care to sell (an insurance contract).
So the courts turned their attention from the terms of the contract to the competence of the contracting parties. And that, without doubt, was the end.
Standardized contracts between a large corporate seller and a small con- sumer, new tort scholars and judges now declared, were not really agree- ments at all; they were mere contracts “of adhesion,” and should be dis- missed out of hand. A single frail individual could hardly hope to hold his own in a deal with a large, knowledgeable institution.
The flypaper theory of contracts was infinitely powerful. Take-it-or- leave-it contracts of course typify virtually all mass-market sales of con- sumer products and services. Used skillfully, the theory allowed judges to get rid of almost any unwanted language they chose, anywhere they might find it. Adhesion theories could transform any deal, no matter how seem- ingly consensual, into the legal equivalent of a car accident.
Oh I see. I think part of their premise went something like this: if you have a gun to your head and sign a contract you are not expected to actually follow through with that contract. You have to be free to sign up for it. I think they conflated economic power and physical power.
tldr -
Torts are what we (used to) do in cases of accidents and assaults (and similar things). It was done in cases where people did not have a pre-established relationship to handle accidents that happen between two parties. Most accidents that happened, happened between two parties that generally contractually agreed on how to handle these accidents.
Courts believed two things:
1.) The handling of the accidents was unfair. The little guy, such as an employee, got screwed over in their contracts. Big corporations (and even smaller ones at times) don’t negotiate contracts with their low-level employees. There economic power was equivalent to physical power. Therefore, the contracts were not really contracts.
2.) Related to the 1st point, courts believed that one issue with these unfair contracts was the fact that the victims had no recourse for the harms they suffered. Your big powerful boss says they take on no liability. You take the job because you have no option. You suffer an accident at the job and lose your job. You have medical bills and a loss of income. This could all be addressed if we could hold your employer liable, regardless of the liabilities we agreed to previously. Also especially with employers we will hold them liable regardless of fault. The big companies (and even small ones) can afford it.