In the light of Harold’s first line, and previous discussions on the ODG, I can’t help mentioning the extraordinary case of Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 532 P.2d 1226, in which the majority of the California S.C. introduced comparative negligence by judicial innovation in the face of a codification (California has a Civil Code) of contributory negligence as a complete defence. You could probably run a whole series of seminars on this one case, which raises issues of judicial method, the nature of a code as opposed to a statute, interpretation of a legal text, the constitutional role of judges, retroactivity of judicial decisions, and so on.
This may not be directly responsive to Chaim’s question, but on the other hand the approach of the majority may be one of the clearest illustrations of the expansionary tendency of US courts.
Lionel

On 12/12/08 6:41 AM, "Harold Luntz" <haroldjen@netspace.net.au> wrote:

-------- Original Message --------   
 Subject:  Re: differences in US/C-wealth substantive private law  
 Date:  Fri, 12 Dec 2008 22:17:17 +1100  
 From:  Harold Luntz <haroldjen@netspace.net.au> <mailto:haroldjen@netspace.net.au>   
 Reply-To:  haroldjen@netspace.net.au  
 To:  Chaim Saiman <Saiman@law.villanova.edu> <mailto:Saiman@law.villanova.edu>   
 References:  <40F53470E00D7B4DA941B99B2FF418880434619625@LAWSTOR.lawad.villanova.edu> <mailto:40F53470E00D7B4DA941B99B2FF418880434619625@LAWSTOR.lawad.villanova.edu>   

Chaim,

One area where the Commonwealth beat the US in liberalising the law (through legislation) was in relation to contributory negligence. England allowed for reduction of damages instead of a complete defence from 1945 and this was followed by legislatures throughout the Commonwealth. Canadians may even be able to tell you that legislatures there went first. John Fleming once told me that it was almost impossible to get such legislation through US legislatures because of lobbying. I think he also said that legislatures passed legislation only every second year and this added to the difficulty. Of course, the US courts eventually got tired of waiting, some introducing so-called comparative negligence rules, with variations among the different jurisdictions.

According to Gary Schwartz, 'The Beginning and the Possible End of the Rise of Modern American Tort Law’ (1992) 26 Georgia L Rev 601 at 688–9', Sindell and market share hasn't worked in practice and didn't spread beyond DES. A law reform committee in South Australia, while refusing to recommend its adoption, pointed out that we were long familiar with the notion in our provisions for compulsory insurers to bear proportionate liability for unidentified and uninsured drivers.

On what the US can learn from the Commonwealth re liability for pure economic loss in negligence, see Jane Stapleton, 'Comparative Economic Loss: Lessons from Case-Law-Focused "Middle Theory"' (2002) 50 UCLA L Rev 531.

For what it is worth the High Court of Australia also ventured into the third party beneficiary area in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; 80 ALR 574.

I hope these quick thoughts are of some help to you.

Harold.

Chaim Saiman wrote:

  
 

Dear Obligationists
 
 
 
Since the law and theology discussion ended in a big thud, I’ll return to issues more traditionally associated with this forum.  J

 
 
In essence am looking for a rough catalogue of major differences in US vs. Commonwealth substantive law private. My basic sense is that (for the period 1930- 1980), American law was significantly more expansionary (liberal) than the law of Commonwealth jurisdictions.  Moreover, even in places where Commonwealth law expanded: (i) the US was likely to do so earlier and, (ii) US law was more likely to change via judicial development whereas CW countries may have relied more heavily on the legitimization of legislation (EG. the third party beneficiaries legislation in UK vs. American common law development in this area). In short, US courts were far quicker to give up on the technicalities of the common law (e.g. privity) that traditionally constrained the expansion of liability.
 
 
 
Here are a few examples that come to mind.
 
 
 

1. The Allen v. Flood / Tuttle v. Buck debate regarding prima facie torts recently discussed in OBG v. Allan.
2. Debate over whether promissory estopple/Restatement Contracts § 90 can be used as a cause of action, and related, whether there is any difference between the various forms of estopple.
3. Theories of “enterprise” or “market share” liability in tort that elide difficult questions of causation in the mass tort context. These had their heyday here in the 60’s and 70’s, and my sense is that they were never accepted in much of the Commonwealth.
4. Doctrine of equitable subordination in bankruptcy which allows a court to move creditors up and down the priority chain. This doctrine was developed by US courts without statutory authorization---but is now codified in the Bankruptcy Code. I’ve heard that this is far more controversial in CW.
5. The doctrine of oppression in corporate law and whether majority shareholders owe any fiduciary duties towards the minority. My sense is that US courts (rather than legislation) are more willing to find rights that protect minority shareholders from than in the CW. This seems limited to the close corporation context.
   

 
 
[While In reality, of course, the differences are far more likely to be relative than absolute, but I don’t think that changes the basic premise underlying this email. ]
 
 
 
 
 
Basically, I am looking for any other examples, counterexamples, scholarship that addresses the question comparatively or explores these questions within the national/ intra-commonwealth perspective.  Real property examples similarly welcomed, and most importantly, feel free to plug your own work!!
 
 
 
 
 
Thanks much,
 
 
 
Chaim
 
 
 
 
 
Chaim Saiman
 
Assistant Professor
 
Villanova Law School
 
610.519.3296
 
saiman@law.villanova.edu
 
view my research at http://ssrn.com/author=549545