Yale Law School

Torts Fall 1998

Visiting Professor James Boyle


You may not discuss this exam with any other person in or out of the class. Please remember that people will be taking the exam throughout the exam period and thus you should refrain from discussing it until the exam period is over.

This is an open book, take-home exam. You may use any material you wish. If you quote directly from any article or book in or out of the materials, you should identify the source. Blue-booking is not required, just acknowledgment.

The total Word Limit Is 4000 Words. (The Exam Can Be Completed in Many Fewer Words). When You Finish Your Exam, Count The Words And Write The Total Number of Words After The Last Question. I Will Not Read Exams Over The Word Limit. You Have 24 Hours(Plus Travel Time) to Complete The Exam. You Can Handwrite Your Exam But I Recommend That You Do Not. If You Are Working on a Computer, Be Sure to Print Your Answer Out Often. Disks Will Not Be Accepted.

I Don't Answer Questions About The Exam. If You Feel The Need to Assume Something Explain What And Why. Keep Your Assumptions Within The Spirit of The Question.

Questions Are Followed by a Suggested Maximum Number of Words. The Credit For That Question Will Be Proportional to The Number of Words Allocated. You Must Answer Three Questions in All; Answer Questions 1 And 2 and then either Question 3 or Question 4.

Use Your Social Security Number, Not Your Name, on Your Answer. Write it on each page. Keep a copy of your exam. Please Return the question sheet with your answer.Good Luck!

Answer both questions 1 and 2 and either question 3 or question 4

1. Karch Carillon, a professional beach volleyball player, has recently fallen on hard times. Normally in the best of health, Mr. Carillon has found himself a victim of Grenadier's disease, a mysterious flu-like illness that causes rashes, headache, double-vision, night-sweats and pervasive insomnia. Mr. Carillon consulted Doctor Huber, a doctor selected from the list provided by his HMO, Demona Inc. His basis of selection was that Doctor Huber practices at York Street Hospital, conveniently close to Mr. Carillon's house. At the initial visit, Doctor Huber soon realised that Mr. Carillon was suffering from Grenadier's, an illness that is extremely easy to diagnose and the symptoms of which can be partially controlled by the regular use of antibiotics, but also a disease which is very hard to cure. Dr. Huber drew blood samples to confirm his suspicions. When the lab reports returned he was fascinated to find that, apart from the tell-tale Grenadier's antibodies, Mr. Carillon's blood also contained an unusual type of white blood cell, hitherto unknown. Seeing the possibility of scientific immortality, Dr. Huber asked Mr. Carillon to return for "follow up tests" during which he took many other samples of Mr. Carillon's bodily fluids. (The research performed on Mr. Carillon's blood provided Dr. Huber with the basis for a path-breaking New England Journal of Medicine article, published the following year. It also led, to Dr. Huber's pleased surprise, to a lucrative book contract, a high-paying consultancy at Yale Medical School and, some years later, a line of extremely profitable blood plasma products.) On Mr. Carillon's third visit to the hospital, Dr. Huber turned to the task of curing Mr. Carillon. He was confronted with two fairly unattractive options. The most efficacious treatment for Grenadier's disease, the complex "campanology interferon apheresis" or (CIA) procedure, provides relief for about one patient in three, but it requires a full team of surgeons and is relatively new. Demona Inc. has a standing policy of only reimbursing doctors on a fixed schedule for each disease, worked out by a complex and painstaking risk and return graph. For treating a patient with Grenadiers, Doctor Huber will be paid $3,800, regardless of how much service he actually provides. This is the median cost of treating a patient with the disease but to prepare Mr. Carillon for the CIA would cost Doctor Huber nearly three times as much. The alternative treatment for Grenadiers, the Edison Industries "Hydrozap," provides relief for one patient in four and is far less expensive. The Hydrozap alternately sprays the patient with ionised water and gives him mild, almost undetectable, electric shocks. For reasons not fully understood, a six week course of this treatment holds the symptoms of the disease under control while the patient is being treated and actually cures the disease 25% of the time. It is this treatment that Dr. Huber recommends to Mr. Carillon. The first time that Mr. Carillon has the treatment, the Hydrozap works as planned. Unfortunately, unknown to him and to the staff of York Street hospital, the electrical generator in the machine stopped working some time after Mr. Carillon's first visit, turning it into little more than a very expensive water pistol. There is conflicting evidence about the cause of the malfunction, but it is assumed that the five year old machine's plastic cover became cracked because of the inevitable vibration as the machine was moved from one examination room to another. The crack, in turn, probably allowed water to enter into the machine's sealed interior and to short out its power supply. The current provided by the Hydrozap is so slight that patients could not have detected the difference and actually opening the Hydrozap to see its circuitry is prohibited by Federal Law, except in an approved medical device repair facility.

While using the Hydrozap, Mr. Carillon followed Dr. Huber's orders and dutifully ceased his course of antibiotics. As the Hydrozap was not working, his disease flared up and though Mr. Carillon has returned to his antibiotics, the Grenadiers disease is now even more debilitating. Worse still, the first, successful, treatment has caused one of the Hydrozap's rare side effects. All of Mr. Carillon's "fast twitch" muscle fibers, the form of muscle that provides explosive force for acceleration and jumping, have been converted to "slow twitch" muscle fibers, good for endurance and distance running. As a result, Mr. Carillon's once proud leaping ability has been all but destroyed, conclusively finishing a career in volleyball that had already been interrupted by his sickness. Where once he could jump 48" straight up into the air, now he would be hard pressed to clear a telephone directory with a single bound. This effect is both so incredibly rare and so harmless for most people that Dr. Huber had not mentioned it. The Hydrozap documentation did warn of this danger, but that warning was not posted on the machine itself.

Jumpy, itchy, nauseated and seeing double, a dispirited and insomniac Mr. Carillon has turned first to the bottle, then to drugs and finally to the law for solace. He comes to you clutching his contract with Dr. Huber which, like all Demona contracts, requires the patient to submit to compulsory binding arbitration, excludes liability for pain and suffering, and punitive damages and which limits the liability of Dr. Huber and Demona "under any legal theory whatsoever" to "the provision of compensatory medical care" and 3 weeks lost wages.

You are Mr. Carillon's lawyer and he has asked you to outline any possible causes of action that he might have. During your discussion, of course, you should explain whom he might sue and for what, any facts that would be relevant, the likelihood and extent of a remedy and the arguments that you think would convince a court.

(2000 Words)


2.) "Furthermore, the realists understood, as had the classics, that the whole structure of the classical scheme depended upon the coherence of private law and the public/private distinction. Thus, the realists spent little time attacking the methodology of constitutional law and concentrated instead upon undermining the coherence of the key private-law categories that purported to define a sphere of pure autonomy. For example, Morris Cohen's Essay "Property and Sovereignty" pointed out that property is necessarily public not private. Property means the legally granted power to withhold from others. As such, it is created by the state and given its only content by legal decisions that limit or extend the property owner's power over others. Thus, property is really an (always conditional) delegation of sovereignty, and property law is simply a form of public law.. Realism had effectively undermined the fundamental premises of liberal legalism, particularly the crucial distinction between legislation (subjective exercise of will) and adjudication (objective exercise of reason.) Inescapably it had also suggested that the whole liberal worldview of (private) rights and (public) sovereignty mediated by the rule of law was only a mirage, a pretty fantasy that masked the reality of economic and political power. Since the realists, American jurists have dedicated themselves to the task of reconstruction...."

Discuss and criticize this quotation with reference to the history of American tort law, using examples drawn from either the development of the law of product liability or the law of causation.

(1000 words)


3.) A large number of states have passed "tort reform" statutes over the last twenty five years. Frequently these laws replace statutes of limitation with statutes of repose, overturn prior common law rulings on strict liability and plaintiff's conduct, limit or eliminate pain and suffering and punitive damages, introduce compulsory arbitration or settlement provisions, mandate demanding notice requirements and divide plaintiffs into different classes based on age and type of injury, each class having a different set of legal rights. Your task is to lay out a general legal theory to explain to state Supreme Courts how they should deal with these statutes in the light of state constitutional guarantees of "equal protection" and "open courts." What limits, if any, should those constitutional provisions put on such transformations of tort law?

As you answer this question keep in mind the following quotations from Ives v. South Buffalo Railway Company 201 N.Y. 271; 94 N.E. 431 (1911), striking down under the state constitution an act which created a limited no-fault system of workplace compensation.

When our Constitutions were adopted it was the law of the land that no man who was without fault or negligence could be held liable in damages for injuries sustained by another... If it is competent to impose upon an employer, who has omitted no legal duty and has committed no wrong, a liability based solely upon a legislative fiat that his business is inherently dangerous, it is equally competent to visit upon him a special tax for the support of hospitals and other charitable institutions, upon the theory that they are devoted largely to the alleviation of ills primarily due to his business. In its final and simple analysis that is taking the property of A and giving it to B, and that cannot be done under our Constitutions ..... Any other view would lead to the absurdity that the Constitutions protect only those rights which the legislatures do not take away.

You should not do any substantive research on state constitutions or caselaw to answer this question and you can assume that most state equal protection and open courts provisions are similar to those in the Arkansas constitution. (1000 words)


4.) "Economic efficiency asks that we choose the set of entitlements which would lead to that allocation of resources which could not be improved in the sense that a further change would not so improve the condition of those who gained by it that they could compensate those who lost from it and still be better off than they were before."

Does this statement solve, restate or actually exacerbate the moral and political problems of tort law? Discuss with reference to Boomer v. Atlantic Cement, INS v. Associated Pressand one other case of your choosing.

(1000 words)



Use your Social Security Number on your answer, not your name. Remember to return the question sheet with your answer. Good Luck!