The Erosion of the Law: Let's Just Certify a Class...Any Class
“The truth isn't a thing of fact, or reason. It's simply what everyone agrees on.” - The Wizard in Wicked
In the rush to adopt and simplify class action law by searching for any common issue to certify, more and more courts ignore long-held substantive legal concepts and principles.
On the first day of my first class in law school - which is more years ago than I like to think - I was greeted with a single and clear cut notion: the tort (or claim) of negligence had three necessary elements:
The existence of a duty
The breach of that duty and
Damages caused by the breach
Because these three things are elements of the negligence tort itself and not defenses, a plaintiff had to establish each one in every case to prevail.
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