US TORT LAW IN THE INTERNATIONAL CONTEXT

eric.allen.engle@justice.com

Attention! Readings and links to readings will be posted on

http://www.geocities.com/engleerica/torts.htm

Course Description

Foreign trained lawyers are often surprised both at the finding of liability and at the extent of liability in U.S. law. This is partly because the US system is based on an adversarial process wherein each party pays their own costs and the court undertakes no inquiry as to evidence limiting itself to the role of arbiter. Tort liability in the U.S. is also much greater than in Europe because tort law serves the function of de facto social insuror.

These facts however have implications for international commerce: European lawyers either will want to seek a hearing before a U.S. court if their client is an injured plaintiff or will prefer to have a hearing elsewhere if they are the defendant.

How can a lawyer limit the liability of their client, or conversely, if their client is injured, maximise their client's award?

COURSE OBJECTIVES

The course objective is to give the students the tools that they will need to succesfully litigate tort cases either at trial or appellate level.

Students will be have learned the following skills by the end of the course

A. Prevention of tortious liability

1. To draft an effective waiver of liability contract.

2. To effectively advise clients as to steps to take to mitigate damages

B. Jurisdictional defenses

1. How to compel a United States court to hear their case

2. How to prevent a United States court from hearing their case

3. Under what circumstances may a foreign lawyer represent a client in the United States? Under what circumstances may a foreign trained lawyer sit for the bar examination of one of the United States? How might that lawyer best pass the bar examination?

4. Class actions

C. Understanding the different standards of Proof

1. Product liability

2. Injuries of minor children

D. How to apply for effective legal remedies

1. Methods to obtain or avoid court awards for attorneys' fees and costs

2. Methods to obtain or avoid punitive damages

3. Methods to limit or maximize substantive (actual) damages

Since waivers of liability are in fact contracts the first part of the course will necessarily teach the essentials of the common law of contracts. Jurisdictional aspects will focus specifically on the United States though are generally valid for other common law countries. Cases will largely be drawn from the United States though leading English cases and possibly Canadian cases will also be considered.

The language of instruction shall be English, though explanations may be given or questions posed in German. During the semester the students will be required to either

1) Draft clauses of a contract for waiver of liability
2) Draft clauses of a contract which will limit jurisdiction
3) Present a summary of the conditions for practice of law bya foreign lawyer in any of the following jurisdictions:
a) New York
b) California
c) District of Columbia
d) Massachussets
4) Draft a summary of strict liability law
5) Propose a drafting exercise, preferably in cooperation with a local law firm
6) Forms: Draft one of the following -

a) Petition

b) Motion

c) Interrogatories
d) Affadavit

These exercises should be relatively straightforward: finding examples of forms from form books and filling them out. They are however of great practical use. They must be given in English. Grammer will not be graded. The drafting exercise comprises 10 percent of the final grade. The drafting exercise however must be submitted during the course and are a precondition to writing the final paper.

The students must also submit a 10 to 20 page paper on international aspects of tort law. Possible topics:

1) Products liability in German and American Law (or any other common law country)

2) Waivers of liability in German and American Law (or any other common law country)

3) Are U.S. tort laws WTO compliant?

4) Toxic torts in US law

5) Environmental clean up of toxic wasteland in US law

6) Tort liability for tobacco

7) Tort liability for firearms

8) Airline liability

9) Polemis and Wagon Mound

10) Dalkon Shield case

Students are permitted and encouraged to make other suggestions!

Suggested methodologies:

1) Problématique: The student must begin with a question which they seek to answer. The research then answers the question and/or leads to other questions... Better for an academic setting than practice but a veryuseful perspective nonetheless.

2) Case history: The student takes a case which they are interested in and traces the cases history and development. This is very straightforward but produces a useful product especially for legal practitioners.

3) Comparative approach: The student takes a legal concept which interests them, and traces the concepts development in two different countries. Ideally the student then synthesizes and concludes what would be a better system than either. Can be good for practice and is good for academic work. Done properly it is very scientific. Done poorly it is wishy-washy.

4) Critique: The student analyses a given law: to determine its weak points. A good method for cynics and nihilists: Rather than seeking to prove something this method seeks to disprove another thing.

5) Polemic: This is the opposite of problématique. Rather than seeking to answer a question the student seeks to prove a hypothesis. This is better for practice than academics since polemical work tends to be less objective but polemic teaches students to organize and direct their thoughts. On the other hand if legal science is a science then it posits facts about law - so polemic has always been able to claim to be scientific - at least in its better forms...

Naturally students may mix these methods. They are in all events only "suggested approaches".

The course focus is practical: the students are intended through drafting exercises to be able to conduct basic legal research and writing in English regarding English or American common law. Methodological or theoretical questions can be considered in students' papers and outside of the course during office hours however methodological and theoretical questions will only play a tangential role in the course.

Students papers will be published on the internet if they so desire. Students will have the opportunity to learn, if they wish, basic HTML, or alternatively will have their papers formatted for them.

The paper may be presented in English, French, German, or Spanish.

Texts:
Dobbs, Remedies

Prof. G. Brueggemeier,Prinzipien des Haftungsrechts

Prosser and Keaton, Torts

Students will be given reading assignments prior to the course. Students are required to read Prof. Brueggemeiers book prior to the beginning of the course!

The work has been translated, but not yet published, into English. So if students prefer an English copy they should let me know.

eric.allen.engle@justice.com

Readings and announcements will be posted onhttp://www.geocities.com/engleerica/torts.htm

I will also require each student’s e-mail address and a short biography indicating prior education, languages spoken, and if desired, reasons for taking this course and or goals they wish to attain via this course.

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