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Torts: Cases and Context Volume 2

Torts: Cases and Context Volume 2
1st Edition
Eric E. Johnson
Introduction
Torts, Volume Two

Torts, Volume Two

Eric E. Johnson

Associate Professor of Law

University of North Dakota School of Law

 

 

eLangdell Press 2016

Introduction.1. About the Author

Eric E. Johnson is an Associate Professor of Law at the University of North Dakota. He has taught torts, intellectual property, sales, entertainment law, media law, sports law, employment law, and writing courses. He has twice been selected by students as the keynote speaker for UND Law’s graduation banquet. His writing on legal pedagogy has appeared in the Journal of Legal Education.

With scholarly interests in intellectual property and the intersection of law and science, Eric’s publications include the Northwestern University Law Review, the Boston University Law Review, the University of Illinois Law Review, and New Scientist magazine. His work was selected for the Yale/Stanford/Harvard Junior Faculty Forum in 2013.

Eric’s practice experience includes a wide array of business torts, intellectual property, and contract matters. As a litigation associate at Irell & Manella in Los Angeles, his clients included Paramount, MTV, CBS, Touchstone, and the bankruptcy estate of eToys.com. As in-house counsel at Fox Cable Networks, he drafted and negotiated deals for the Fox Sports cable networks.

Eric received his J.D. cum laude from Harvard Law School in 2000, where he was an instructor of the first-year course in legal reasoning and argument. He received his B.A. with Highest and Special Honors from the Plan II program at the University of Texas at Austin.

Outside of his legal career, Eric performed as a stand-up comic and was a top-40 radio disc jockey. Eric archives teaching materials on his website at ericejohnson.com. His online exam archive includes more than a dozen torts essay exams and a bank of multiple-choice questions.

 

For my mom, Gretchen Johnson

Introduction.2. Notices

This is the first edition of this casebook, updated December 2016. Visit http://elangdell.cali.org/ for the latest version and for revision history.

This work (but not including the cover art, CALI logo, and eLangdell logo) is authored by Eric E. Johnson, published by CALI eLangdell Press, and licensed under a Creative Commons Attribution-ShareAlike 4.0 International License (CC BY-SA 4.0). © 2016 CALI. All rights not expressly granted by this Creative Commons license are reserved. No copyright is asserted in U.S. Government works or other public domain material included herein.

In brief, the terms of the license are that you may copy, distribute, and display this work, or make derivative works, so long as

  • you give CALI eLangdell Press and the author credit; and
  • you distribute any works derived from this one under the same licensing terms as this.

Suggested attribution format for original work:

Eric E. Johnson, Torts: Cases and Context, Volume 2, 2016, published by CALI eLangdell Press. Available under a Creative Commons BY-SA 4.0 License.

This book is konomarked – requests for gratis permissions beyond the scope of the Creative Commons license are welcomed. Contact feedback@cali.org.

CALI® and eLangdell® are United States federally registered trademarks owned by the Center for Computer-Assisted Legal Instruction. The cover art design is a copyrighted work of CALI, all rights reserved. The CALI graphical logo is a trademark and may not be used without permission.

Should you create derivative works based on the text of this book or other Creative Commons materials therein, you may not use this book’s cover art and the aforementioned logos, or any derivative thereof, to imply endorsement or otherwise without written permission from CALI.

This material does not contain nor is it intended to be legal advice. Users seeking legal advice should consult with a licensed attorney in their jurisdiction.  The editors have endeavored to provide complete and accurate information in this book.  However, CALI does not warrant that the information provided is complete and accurate.  CALI disclaims all liability to any person for any loss caused by errors or omissions in this collection of information.

Introduction.2.1. Rights Information

Silkwood v. Kerr-McGee (in Chapter 13, Strict Liability): For the “FACTS,” all but the first and last paragraphs of the facts are taken, nearly verbatim, from James F. McInroy, A True Measure of Exposure: The Karen Silkwood Story, 23 Los Alamos Science 252 (1995).

The website from which this archived article was retrieved contained the following:

Copyright Notice

For Scientific and Technical Information Only

© Copyright 2011 Los Alamos National Security, LLC All rights reserved

For All Information

Unless otherwise indicated, this information has been authored by an employee or employees of the Los Alamos National Security, LLC employee or employees of the Los Alamos National Security, LLC (LANS), operator of the Los Alamos National Laboratory under Contract No. DE-AC52-06NA25396 with the U.S. Department of Energy. The U.S. Government has rights to use, reproduce, and distribute this information. The public may copy and use this information without charge, provided that this Notice and any statement of authorship are reproduced on all copies. Neither the Government nor LANS makes any warranty, express or implied, or assumes any liability or responsibility for the use of this information.

Introduction.3. About eLangdell Press

The Center for Computer-Assisted Legal Instruction (CALI®) is a nonprofit organization with over 200 member US law schools, and an innovative force pushing legal education toward change for the better. There are benefits to CALI membership for your school, firm, or organization. eLangdell® is our electronic press with a mission to publish more open books for legal education.

How do we define “open?”

  • Compatibility with devices like smartphones, tablets, and e-readers; as well as print.
  • The right for educators to remix the materials through more lenient copyright policies.
  • The ability for educators and students to adopt the materials for free.

Find available and upcoming eLangdell titles at elangdell.cali.org. Show support for CALI by following us on Facebook and Twitter, and by telling your friends and colleagues where you received your free book.

Introduction.4. Preface

What Makes this Casebook Different

This book is different from other casebooks in at least three key ways.

First, and most importantly, this casebook is free. It is free in both senses of the word. In one sense, it is free in that it does not cost the reader any money. That is, the price is zero. You can get an electronic copy for free, or you can buy a printed copy for whatever the paper and ink costs. You can also print it out yourself, if you’d like. The no-money sense of free is great, but this casebook is also free in a deeper sense: It is unfettered by proprietary legal claims that would prevent it from being abridged, expanded, repurposed, or adapted. That is to say, this book is “open source.” Consistent with the terms of the Creative Commons license that this book is published under, generations of instructors and students will be able to rip and remix this book to suit their needs.

Next, this casebook is different from many traditional casebooks in that it has made a deliberate effort to explain the law, rather than just present a series of readings and questions. All casebooks contain some explanatory matter, but few casebooks emphasize it. This is changing. More and more casebooks are built around the idea of actively explaining concepts to the reader rather than relying solely on the judicial opinions’ internal exposition. This book embraces that trend.

Finally, this casebook is offered not merely as a one-way communication. Instead, this book constitutes an invitation to you. If you are an instructor, please get in touch with me. I’d love to hear how your class is going, and I would be happy to provide you with notes, slides, advice, and anything else I can. If you are a student, I would love to hear your comments about how this casebook is working and how it could be improved. An advantage of in-person speaking over writing is that you can see from the reactions of students whether you are doing a good job explaining something. Since, in writing this book, I can’t see any faces, I am relying on you and other readers to not be shy about telling me what I am doing well and what I could be doing better. You can find me at ericejohnson.com.

Questions and Problems

There are two types of questions in this book, and they are separately labeled as such. In addition, there are problems for you to work.

Questions to Ponder: These questions are intended to be interesting and helpful to think about after reading the preceding material. You should not, however, attempt to figure out “the answer” to these questions. They are not meant to have clearly correct answers. Instead, the idea is to prompt you to think more deeply about one or more facets of the case.

Check-Your-Understanding Questions: These questions are intended to help you see if you absorbed the preceding material. Unlike “Questions to Ponder,” the questions labeled as “Check-Your-Understanding Questions” do have clearly correct answers. 

Problems: The problems in this casebook are much more involved than the questions. Rather than asking for you to ponder ideas or come up with simple answers, the problems call upon you to do analysis. That is, you are expected to apply what you have learned. With the problems, you mirror to some extent the task of the practicing lawyer. As you will learn by working through them, some of the problems in this book have well-defined solutions. Others are more open-ended and invite creativity. But all are meant to get you to utilize doctrine and concepts to generate fresh insights in view of new facts.

Editing of Cases

In editing the cases for inclusion in this book, I have strived primarily for readability and brevity. Thus, I have been quite liberal in cutting down courts’ text, and, in some cases, re-arranging it.

I have left a record of my editing either in the cases themselves, in the annotations below, or in the aftermatter at the end of the book. I realize most casebooks do not provide this level of detail about the editing, but by thoroughly cataloging my edits, I hope to facilitate the revision and adaptation of this book by others.

Footnotes

I have handled footnotes in a slightly unconventional manner. The reason why is that this book is being written to work in multiple formats, including print, the print-like PDF format, and various e-book formats with variable pagination. Achieving compatibility across formats presents a problem with regard to footnotes. Footnotes are no problem in print. But footnotes are often rendered awkwardly in e-book formats.

This is a particular problem for a casebook. Courts love footnotes. Gather together a collection of judicial opinions, and footnotes are everywhere. In truth, footnotes are a wonderful structural tool for writing, since they give the reader choices. Less essential matter is kept out of the text, allowing a time-pressed reader to forge ahead. But if a more probing reader wants to read the footnote material, the eyes do not have to go far to find it. Unfortunately, standards developers have not provided a way of dealing with digital footnotes that preserves all the functionality they exhibit on paper.

One way around the problem posed by continuous pagination in electronic formats would be to convert the footnotes to endnotes. Hyperlinking can then facilitate a reader’s movement from the text to the endnotes and back again. But that does not work in this casebook for two reasons. First, even though clicking links back and forth is easier than finding your way through a document with a scroll wheel or slide knob, clicking links is still time consuming. And with a lot of footnotes, the clicking time adds up. Second, this book is intended also to work well in a print distribution, and you can’t use hyperlinks to avoid page turning in a physical book.

Because of these concerns, I have adopted a zero-footnote/zero-endnote policy for this book. Nevertheless, there is footnote material in many cases that deserves to be read. So, where I felt footnote material was important, I have incorporated into the inline text.

I have adopted this convention for marking footnote material:

A The superscript right-pointing descending arrow indicates the beginning of footnote material.

@ The superscript left-pointing descending arrow indicates the end of a passage of footnote material.

While this system works well, there is one wrinkle: Sometimes courts put footnote references in the middle of a sentence. Where this has happened, I have had to depart from the exact linear order of the text, usually by inserting the footnote material after the end of the sentence.

Editing Marks

Because I think it is good for the reader to be able to get a sense of the relative fidelity of the edited version of a reading compared to the original, I have left editing marks in many places.

Editing a casebook presents a special challenge in indicating what edits you have made. Courts themselves, when writing opinions, include an enormous amount of quoted material. Thus, unedited court opinions are filled with ellipses to show where the quoted version differs from the original. If I used ellipses in editing the opinions themselves, how could the reader of this casebook tell my edits from the court’s?

To avoid such ambiguity, I have used a special mark in lieu of an ellipse where the chopping was mine:

~ The superscript tilda denotes matter omitted.

The superscript tilda also has the advantage of being less obtrusive than an ellipse.

Insertions are indicated with brackets – and generally they are mine if they are not in a quote.

[] Brackets indicate an insertion. The insertion may be mine or the court’s.

Also, some courts use brackets in and around citations as part of their adopted citation style. Those brackets, which do not indicate an insertion, are the court’s, not mine.

Any other editing marks you see are the court’s, not mine. 

Unmarked Edits

While I have sought to indicate significant edits in the text, as I’ve just described, I also have made unmarked changes. In such cases, I left them unmarked because marking them in some way would have been unduly distracting. In particular, throughout the cases I have liberally omitted citation matter, including parallel cites, portions of cites, and whole cites. (Note that I didn’t remove all citation; in many places I thought it was essential to what the court was trying to say or that it otherwise made a helpful contribution.) Other unmarked edits are cataloged in the aftermatter at the end of this book.

Introduction.5. Acknowledgements

First and foremost, I want to acknowledge and thank my students, particularly my torts students over the years at the University of North Dakota. They helped me immeasurably to grow as a teacher, and they provided invaluable feedback for the early forms of material that evolved into this casebook. A particular note of thanks is due my 2014-2015 torts students. Many of them went above-and-beyond-the-call in helping me ferret out typos and rework unclear passages. I am truly indebted to them. I also owe thanks to the faculty, staff, and administration at the University of North Dakota School of Law for their considerable support.

Many other people lent me their time and advice to help with this book. In particular, I grateful to Michael L. Corrado, Patti Alleva, Murray Tabb, Paul LeBel, Keith Richotte, James Grijalva, Adam Gutride, Jim Dedman, Brian Schmidt, Devin Rogers, Pete Boll, Susan Carlson, Karen Martin, Jan Stone, and Kit Johnson. I also want to thank the anonymous reviewers who, through the CALI editing process, provided excellent counsel.

In addition, I want to thank many people who have helped me in indirect but important ways by having illuminating discussions with me about torts – discussions that ultimately helped me frame the explanations that appear in this book. Those people include Sanne Knudsen, Paul Gowder, Sandra Sperino, John L. Watts, Bruce L. Hay, Guido Calabresi, and, most especially, my own torts teacher, Jon Hanson.

I am also grateful to Justice Raymond D. Austin who suggested Benally v. Navajo Nation to me as a good teaching case, as well as Jennifer L. Schulz for making the same suggestion with regard to Dobson v. Dobson.

Finally, I want to warmly thank Deb Quentel and everyone at CALI for supporting me in this endeavor. I am grateful to them not only for their work with regard to this particular project, but also more broadly for their efforts to make legal education more efficient, effective, affordable, and accessible.

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