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Discussion in 'Hangar Talk' started by FlyingTiger, Mar 24, 2015.
We did it!
Too bad most of the thread is filler.
Welcome to PoA.
LMAO. You don't think the AFU applies?
Let’s start with the easy, objectively wrong stuff. The rules of civil procedure were promulgated by the U.S. Supreme Court. It’s right in the forward published with them: “This document contains the Federal Rules of Civil Procedure together with forms, as amended to December 1, 2014. The rules and forms have been promulgated and amended by the United States Supreme Court pursuant to law, and further amended by Acts of Congress.”
So yes, judges did create the rules that cause the parties excessive litigation costs. Fortunately, the Supreme Court is aware, and taking a hard look at it, and the biggest change will likely be the proportionality test for required discovery.
Now, as far as your “repeat after me” crap, tort law was a creation of common law, which is the law that was made up by judges in their opinions. Let’s just take one example, products liability law. It’s a creation at common law, which is judge made law. It starts with MacPherson v. Buick Motor Co., 217 N.Y. 382, 385, 111 N.E. 1050, 1051 (1916), an opinion by justice Cardozo chipping away at privity requirements going back to English common law (see Winterbottom v. Wright (10 M. & W. 109). Strict liability? Also created by judges. It started out in the early 1900s based on an implied warranty theory, and was limited only to defective food products. In 1960, it was extended to all products. See, Henningsen v. Bloomfield Motors, Inc., 1960, 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1. Then, in 1962, the California supreme court did away with the warranty fiction, and expressly created the doctrice of strict liability is tort. See, Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (Cal.1962).
We could go through this for loss of consortium claims, negligent infliction of emotional distress, public disclosure of private facts, etc. Any number of tort claims—all created at common law. More importantly, exceptions to limits on liability are invariably created by judges. The maxim “bad facts make bad law” is a recognition of the phenomenon. When a judge is presented with a sympathetic plaintiff, all too often that judge finds a way to make some exception to expend liability for just that case. Plaintiff’s lawyers then drive trucks through it.
In states where legislatures have passed tort liability reform, often as not, judges strike them down. See Illinois (Lebron v. Gottlieb Mem'l Hosp., 237 Ill. 2d 217, 930 N.E.2d 895 (2010)) and Oklahoma (Douglas v. Cox Ret. Properties, Inc., 2013 OK 37, ¶ 4, 302 P.3d 789, 792) for two states I am aware of off the top of my head with no research.
Summary judgments that should be granted aren’t. Judges bend over backwards to “give plaintiff’s their day in court.” Never mind the fact that the judge tossing their case IS their day in court. In reality, often they just hope it settles so they don’t have to expend the effort of hosting a trial, and so they can’t be reversed.
I think that’ll do for now.