Tort Law and Economic regulation

Question 1

Name 4 regulatory tools of Public Health Agencies and briefly describe their functions.

Answer 1

1. Licenses:
   Licenses help with setting standards for entry and monitoring activity.
2. Inspections and Administrative searches: Inspections and administrative searches work by identifying and responding to unsanitary conditions, unsafe environments, impure products
3. Nuisance abatement: Nuisance abatement prohibits hazardous activities (pollution, dangerous
   construction, places that encourage risky behavior).
4. Direct regulation of use and operation: As the name suggests, direct regulation is application of regulations directly.

Question 2

What are potential problems with licenses?

Answer 2

• Social and economic fairness
• Procedural fairness
• Constitutional issues

Question 3

What are potential problems with administrative searches?

Answer 3

Warrant: A warrant is required unless one of the following exceptions are met-
permission, emergencies; “open fields” doctrine for public places; pervasively regulated industries
Admissibility of evidence- depends on how it was obtained. Primary purpose must be PH (then evidence can ALSO be used for criminal purposes).

Question 4

What are potential problems with nuisance abatement?

Answer 4

• Nuisance abatement is difficult to define since it covers the broad area of “anything which is injurious to health”
• Courts retain power to determine if it exists
• Courts also use remedies in “equity”* to abate

Question 5

Which case was one of the most important landmarks during the economic due process evolution?

Answer 5

Lockner (1905)

Question 6

What time period is defined as the Lockner era?

Answer 6

1905-1937

Question 7

What happened during the Lockner era?

Answer 7

Courts overturned many economic regulations in favor of the individual’s right to contract

Question 8

What happened in the post-Lockner era?

Answer 8

Courts have presumed police power regulation to be valid, even in economic sphere

Question 9

What standard of review do the courts use to evaluate issues involving freedom to contract?

Answer 9

Rational basis review

Question 10

What was the holding in RUI Corp. v City of Berkeley

Answer 10

In Rui Corp. v. City of Berkeley, the court held that there was no infringement of contracts when the city decided to set a minimum wage regulation, since the ‘power to regulate wages and employment conditions’ lies clearly within the state’s police power. Legislative bodies have a broad authority to exercise such power.

Question 11

Describe the three part test the court would use to assess government regulation that interferes with private contracts?

Answer 11

1.  Is there a substantial impairment of a contractual relationship?
2.  If so, does it serve a significant and legitimate public purpose?
3.  Is it reasonably related to achieving the goal (public purpose)?

Question 12

Define regulatory taking.

Answer 12

Empowered by the 5th Amendment, the government can take possession of property for public purpose, but it must compensate owner. This is known as regulatory taking.

Question 13

Describe the components of the balancing test established in the Penn Central Transportation Co. v. New York City.

Answer 13

1. the economic impact of the regulation on the property owner
2. the extent to which the regulation has interfered with investment-backed expectation
3. the character of the governmental action.

Question 14

Define tort.

Answer 14

A tort is a civil, non contractual wrong for which an injured person or group of persons, seeks remedy usually in the form of monetary damages.

Question 15

What are the goals or functions of tort law?

Answer 15

The following are the goals or functions of Tort Law-

• Assign responsibility
• Compensate the injured party/parties
• Deter unreasonably hazardous conduct
• Encourage innovation.

Question 16

Name 3 major theories of tort liability

Answer 16

• Negligence
• Private Nuisance
• Strict liability- product liability

Question 17

Name the four modern elements of a cause of action based on negligence.

Answer 17

• Duty of care
• Breach of duty
• Causation
• Loss or Damage

Question 18

What is duty to care?

Answer 18

Duty to care is the obligation to conform to standard of conduct of protecting others against unreasonable risks of harm.

Question 19

What is breach of duty?

Answer 19

Breach of duty happens when a person fails to conform to legally recognized standard of safe behavior.

Question 20

What is private nuisance?

Answer 20

Private nuisance is unreasonable interference with the possessor’s use and enjoyment of land.

Question 21

The court would assess the reasonableness of private nuisance by weighing the following elements:

Answer 21

• extent and duration of harm
• social value of the activity
• cost of avoiding harm
• comparable economic effects.

Question 22

What are the limitations of strict liability?

Answer 22

• intention- defendent must knowingly engage in the activity
• proximate cause- persons must be foreseeably harmed
• Public duty privilege- liability is not imposed when law expressly authorizes or imposes a duty to conduct the activity
• Sovereign immunity- federal tort claims act waives sovereign immunity.

Question 23

What activities define the doctrine of ‘abnormally dangerous activities’?

Answer 23

high degree of risk, seriousness of resulting harm, inability to eliminate the risk by due care, danger versus value to community.

Question 24

Name 3 categories of product liability

Answer 24

• Manufacturing defect
• Design defect
• Failure to warn

Question 25

What is ‘reasonable design alternative’?

Answer 25

Reasonable design alternative is a liability limiting test that requires the plaintiff to demonstrate that the product could be made safer.

Question 26

State four problems of scientific proof in mass exposure litigation.

Answer 26

• Exposure: large number of people have exposure, but some have alleged health condition and some do not.
• Confounders: some people are exposed to other agents that could cause same health condition.
• Background levels of disease
• Latency: because of passage of time it is difficult to prove causation.

Question 27

What kind of evidence does Frye’s general acceptance test allow?

Answer 27

Frye’s general acceptance test permits into evidence only “a well- recognized scientific principle or discovery.. sufficiently established to have gained general acceptance in the particular field.

Question 28

What kind of evidence do the Federal rules of evidence allow?

Answer 28

If scientific, technical, or specialized knowledge will assist the trier of fact to understand the evidence, a witness qualified as an expert may testify.

Question 29

What was Daubert’s 2 part test?

Answer 29

Under Daubert, the court established a two-part test to determine the admissibility of scientific evidence:
relevancy and reliability.
For reliability the court considered four factors: testing, peer review, error rate and general acceptance.

Question 30

What did Joiner contribute in terms of criteria for scientific evidence?

Answer 30

As per Joiner (1997), the court could critically examine whether the expert’s conclusions were supported by the studies cited.

Question 31

What conclusion did Supreme court reach under the Kumbo case?

Answer 31

In the Kumbo case, the supreme court held that the Daubert factors apply not only to scentific factors but to all experts.

Question 32

What are the social and economic costs of tort law?

Answer 32

• Economic burdens due to monetary compensation
• Penalizing business judgement
• Deter and stifle innovation
• Wrong incentives