Titan called it re Kavanaugh

[NolaAuTiger 3,295]

If anything can be said of Kavanaugh's "judicial politics" thus far, it's that he is a "centrist" on the court. His majority opinion issued yesterday in DeVries (a maritime case), which essentially determined that manufacturers may be liable when third parties incorporate downstream parts into their products, indisputably further affirms Titan's proposition. The decision holds that manufacturers have a duty to warn when their product requires downstream incorporation of a part, which the manufacturer knows or has reason to know is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe the product's users will realize that danger. Gorsuch authored the dissenting opinion, joined by Thomas and Alito. So while it is a 6-3 opinion, it was nonetheless a very close case that could've fallen either way. 

For liberals, this should reasonably ease concern regarding the judicial philosophical balance of the Court. 

In another vein, what's most telling is that the precedent established is arguably inconsistent with the roots of common law tort liability, which is coherently laid out in Professor Epstein's (NYU Law School) amicus brief. 

@TitanTiger

[TitanTiger 20,475]

Yeah, I'll never really understand why people not in Trump's inner circle were so willing to go to the mat over this guy to get him through.  For Trump and his people, it's a matter of not being embarrassed by having to withdraw a nominee.  It's all political.  For the average Joe going nuts over him, it was completely nonsensical.

[homersapien 11,368]

1 hour ago, NolaAuTiger said:

If anything can be said of Kavanaugh's "judicial politics" thus far, it's that he is a "centrist" on the court. His majority opinion issued yesterday in DeVries (a maritime case), which essentially determined that manufacturers may be liable when third parties incorporate downstream parts into their products, indisputably further affirms Titan's proposition. The decision holds that manufacturers have a duty to warn when their product requires downstream incorporation of a part, which the manufacturer knows or has reason to know is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe the product's users will realize that danger. Gorsuch authored the dissenting opinion, joined by Thomas and Alito. So while it is a 6-3 opinion, it was nonetheless a very close case that could've fallen either way. 

For liberals, this should reasonably ease concern regarding the judicial philosophical balance of the Court. 

In another vein, what's most telling is that the precedent established is arguably inconsistent with the roots of common law tort liability, which is coherently laid out in Professor Epstein's (NYU Law School) amicus brief. 

@TitanTiger

If the product "requires" said part for it's intended application, then Kavanaugh's position seems more like just common sense rather than reflecting a liberal or conservative slant.

Am I reading too much into it?

[NolaAuTiger 3,295]

3 hours ago, homersapien said:

If the product "requires" said part for it's intended application, then Kavanaugh's position seems more like just common sense rather than reflecting a liberal or conservative slant.

Am I reading too much into it?

My position is that it's certainly a liberal slant in the realm of torts. The historical backbone of the position would probably put you to sleep, but there are numerous law review articles and whatnot that can be accessed through the internet if you're interested.

You have to think about the idea that there are also various "incorporator manufacturer's," (all producing the same "product") and the properties that make up that product vary depending on the specific incorporator's choice - even though the end-product they incorporate is the same. Does that make sense? One incorporator might construct/compose the incorporated product in one manner (say without a harmful chemical/ingredient), while another incorporator uses a harmful ingredient - both incorporators are producing the same thing, but the proprietary elements are different (common among competitors). The manufacturer doesn't necessarily know which "incorporator" will incorporate the "other product" into his. If it's the "safe incorporator's" product that is incorporated, then all is well. But, if it's the "dangerous incorporator's" product that is incorporated, then there is liability. In either case though, the initial manufacturer cannot foresee which downstream company will be the "incorporator." 

I would encourage you to read the majority and dissent. Another problem is that under the English common law, it has long been held that a manufacturer has no "duty to warn or instruct about another manufacturer's products, though those products might be used in connection with the manufacturer's own product." Instead the traditional duty of the manufacturer has been restricted to warnings based on characteristics of the manufacturer's own product. 

[NolaAuTiger 3,295]

4 hours ago, TitanTiger said:

Yeah, I'll never really understand why people not in Trump's inner circle were so willing to go to the mat over this guy to get him through.  For Trump and his people, it's a matter of not being embarrassed by having to withdraw a nominee.  It's all political.  For the average Joe going nuts over him, it was completely nonsensical.

I am certainly guilty for not scrutinizing his interpretive methodology more than I did, which wasn't much. 

[TitanTiger 20,475]

1 minute ago, NolaAuTiger said:

I am certainly guilty for not scrutinizing his interpretive methodology more than I did, which wasn't much. 

To be fair, my hunch was that he wouldn't be a reliable social conservative, but would walk virtually lockstep with the GOP on other matters, especially favoring corporations and such over the average citizen.  But he simply may not be a reliable conservative on anything.

[alexava 6,973]

I didn’t see any problem with Kavanaugh until he went all “R Kelly” during that senate hearing. He might be ok but he looked like a guilty crybaby to me.

[homersapien 11,368]

19 hours ago, NolaAuTiger said:

My position is that it's certainly a liberal slant in the realm of torts. The historical backbone of the position would probably put you to sleep, but there are numerous law review articles and whatnot that can be accessed through the internet if you're interested.

You have to think about the idea that there are also various "incorporator manufacturer's," (all producing the same "product") and the properties that make up that product vary depending on the specific incorporator's choice - even though the end-product they incorporate is the same. Does that make sense? One incorporator might construct/compose the incorporated product in one manner (say without a harmful chemical/ingredient), while another incorporator uses a harmful ingredient - both incorporators are producing the same thing, but the proprietary elements are different (common among competitors). The manufacturer doesn't necessarily know which "incorporator" will incorporate the "other product" into his. If it's the "safe incorporator's" product that is incorporated, then all is well. But, if it's the "dangerous incorporator's" product that is incorporated, then there is liability. In either case though, the initial manufacturer cannot foresee which downstream company will be the "incorporator." 

I would encourage you to read the majority and dissent. Another problem is that under the English common law, it has long been held that a manufacturer has no "duty to warn or instruct about another manufacturer's products, though those products might be used in connection with the manufacturer's own product." Instead the traditional duty of the manufacturer has been restricted to warnings based on characteristics of the manufacturer's own product. 

I still come back to this:

"The decision holds that manufacturers have a duty to warn when their product requires downstream incorporation of a part, which the manufacturer knows or has reason to know is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe the product's users will realize that danger."

Let's try a hypothetical: 

Say I manufacture a replica gun that was designed for black power ammunition in the form of cartridges which are available from specialized vendors or can be home-loaded.

However, the use of modern cartridges in this replica weapon - widely available in a compatible size - creates a hazard to the user.

Wouldn't it seem 'just' to at least place a burden on me to warn not to use inappropriate ammo in the replica weapon?

As for my reading all the background, I think you are probably correct, it would likely put me to sleep.  I'd rather you do that hard lifting.  

[alexava 6,973]

Toyota took responsibility when aftermarket floor mats were causing accelerators to get stuck. Mainly because other acceleration problems just so happened to occur in the same time frame and they admitted an overlooked design flaw on the pedal itself. 

Thats my only experience with something like this. But I think every situation is going to be different. 

[NolaAuTiger 3,295]

3 hours ago, homersapien said:

I still come back to this:

"The decision holds that manufacturers have a duty to warn when their product requires downstream incorporation of a part, which the manufacturer knows or has reason to know is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe the product's users will realize that danger."

Let's try a hypothetical: 

Say I manufacture a replica gun that was designed for black power ammunition in the form of cartridges which are available from specialized vendors or can be home-loaded.

However, the use of modern cartridges in this replica weapon - widely available in a compatible size - creates a hazard to the user.

Wouldn't it seem 'just' to at least place a burden on me to warn not to use inappropriate ammo in the replica weapon?

As for my reading all the background, I think you are probably correct, it would likely put me to sleep.  I'd rather you do that hard lifting.  

Manufacturers already have duties to warn about dangers associated with anticipated use. That’s not what this decision is about. DeVries imposes a novel duty, unrecognized in the roots of English tort law. Again, I think it would be helpful to read the opinion. 

Go to SCOTUS blog and search the case docket (Search DeVries). Click on Epstein’s amicus brief and give it a read too.

[AUDub 11,147]

This would make for an interesting twist. 

 

[homersapien 11,368]

2 hours ago, AUDub said:

This would make for an interesting twist. 

 

And a totally welcome one!

[NolaAuTiger 3,295]

6 hours ago, AUDub said:

This would make for an interesting twist. 

 

To uphold gerrymandering in the Maryland case would not help Republicans...

[Brad_ATX 13,654]

55 minutes ago, NolaAuTiger said:

To uphold gerrymandering in the Maryland case would not help Republicans...

I could definitely see Roberts joining the liberals on this one.  Kavanaugh might surprise me a little, but I wouldn't be stunned by it.

[NolaAuTiger 3,295]

14 minutes ago, Brad_ATX said:

I could definitely see Roberts joining the liberals on this one.  Kavanaugh might surprise me a little, but I wouldn't be stunned by it.

But what does that mean in this circumstance? These are two cases. Upholding the gerrymandering “helps” Democrats in one, but not the other. And vice versa wrt Republicans.

[homersapien 11,368]

38 minutes ago, NolaAuTiger said:

But what does that mean in this circumstance? These are two cases. Upholding the gerrymandering “helps” Democrats in one, but not the other. And vice versa wrt Republicans.

But what does it mean regarding the country's interest?

Shouldn't that be the "bottom line"?

[Brad_ATX 13,654]

1 hour ago, NolaAuTiger said:

But what does that mean in this circumstance? These are two cases. Upholding the gerrymandering “helps” Democrats in one, but not the other. And vice versa wrt Republicans.

Good point.  Personally I would love to see it where non-partisan commissions draw up districts based on purely population instead of these weird lines we have now that make up our maps.

[NolaAuTiger 3,295]

10 hours ago, Brad_ATX said:

Good point.  Personally I would love to see it where non-partisan commissions draw up districts based on purely population instead of these weird lines we have now that make up our maps.

Unless my brief understanding of the cases is misplaced - the gerrymandering in Maryland helps Dems (repubs are plaintiffs in that case), while the NC case hurts them.