Wednesday, March 31, 2010

Foresseability Reconsidered, but Distinguished Professor Remains Clueless

Speaking of David Owen, Carolina Distinguished Professor of Law, University of South Carolina School of Law. Most tort law professors are biased in favor of the plaintiff side, where they are supposed to be neutral source of learning for their students. Most tort law textbooks read like Mein Kampfs for the plaintiff bar.

I understand, foreseeability was an attempt to limit defendant liability, since a type of strict liability existed prior to its introduction. Problems.

1) Foreseeability has its origin in Scholasticism. It is a power of God to foresee the future and to be able to change it. It is a supernatural power and any mention of it in a legal utterance violates the Establishment Clause. Not even the Medieval Church believed, man could foresee accidents, only the modern lawyer.

2) The foreseeability of future accidents or injuries is like that of the winning lottery ticket in the Pick 5. If the professor believes defendants should foresee rare accidents, then he should provide the winning lottery numbers for tonight. He is more likely to get those correct than to foresee a car crash in the most dangerous intersection in the nation. I can foresee the sun will rise in the East because it has done so a million times before, without exception, meeting this criterion of being more frequent than 51% of the time. I can foresee that more than 50% of people who jump from the fourth floor will because that has happened in the past and has great repeatability.

3) The burden of proof in torts is to reach the preponderance of the evidence, namely 51% likely to be correct. It is impossible to meet that burden if the chance of having the accident is not above 51% likelihood. So if it can be shown that, under the same conditions, an accident will take place 50% of the time, but less than 51% if the time, the burden of proof is impossible to meet.

Tuesday, March 30, 2010

If Torts Replace Violence, Does Immunity Morally and Intellectually Justify Violence?

A criminal defendant was falsely convicted and sued the prosecutor for withholding exculpatory evidence. He admitted the immunity of prosecutors. However, he charged the supervisors negligently trained the prosecutors, an administrative function, no part of the duties of an officer of the court.

In an unanimous decision, the Supreme Court held training was all part of the acts of the office, and rejected any liability. Prosecutors therefore have absolute immunity.

This is an appalling injustice. These are absolutely incompetent government slackers who need liability to motivate an improvement in what they do. They fail to prosecute the overwhelming majority of crimes. When they decide to prosecute, there is an unknown but large fraction of innocence. If the prosecutor embarrasses the office, he is an at will employee. He will likely lose his job after a suitable face saving interval.

So this is the question. If torts liability replaces violence, does immunity morally and intellectually justify violence?