WHETHER a person is under a duty to make any effort to control the conduct of another to avoid harm to a third person presents a problem in the law of Torts which is generally treated as one of affirmative obligation. The distinction between misfeasance and mere non-feasance is an old one and, while the line is recognized as shadowy in places, it still affords a practical basis for analysis. Whether given conduct is to be described as the improper performance of proper acts or a failure to perform acts which should have been performed is the orthodox touchstone for deciding many tort cases.' To be sure, this formula is capable of manipulation, and any given set of facts can be compressed to come within the concept of non-feasance or expanded to fit the mould of misfeasance. The trick is a simple one of selecting that point in the series of happenings from which the analysis is to start.2 An accident at a level crossing, for example, may logically be regarded as the result of the mere failure of the engineer to sound a warning or make timely application of his brakes; or it can be regarded as the improper operation of the locomotive. But although the formula is thus superficial and inexact, the basic principles for determining duty are the same in all cases. A sounder basis for analysis is the relationship of the parties. If the conduct of the actor has brought him into a human relationship with another, of such character that sound social policy requires either some affirmative action or some precaution on his part to avoid harm, the duty to act or take the precaution is imposed by law. "Given a relation," says Judge Cardozo with characteristic insight,3
{"title":"The Duty to Control the Conduct of Another","authors":"Posey M. Kime, F. V. Harper","doi":"10.2307/791468","DOIUrl":"https://doi.org/10.2307/791468","url":null,"abstract":"WHETHER a person is under a duty to make any effort to control the conduct of another to avoid harm to a third person presents a problem in the law of Torts which is generally treated as one of affirmative obligation. The distinction between misfeasance and mere non-feasance is an old one and, while the line is recognized as shadowy in places, it still affords a practical basis for analysis. Whether given conduct is to be described as the improper performance of proper acts or a failure to perform acts which should have been performed is the orthodox touchstone for deciding many tort cases.' To be sure, this formula is capable of manipulation, and any given set of facts can be compressed to come within the concept of non-feasance or expanded to fit the mould of misfeasance. The trick is a simple one of selecting that point in the series of happenings from which the analysis is to start.2 An accident at a level crossing, for example, may logically be regarded as the result of the mere failure of the engineer to sound a warning or make timely application of his brakes; or it can be regarded as the improper operation of the locomotive. But although the formula is thus superficial and inexact, the basic principles for determining duty are the same in all cases. A sounder basis for analysis is the relationship of the parties. If the conduct of the actor has brought him into a human relationship with another, of such character that sound social policy requires either some affirmative action or some precaution on his part to avoid harm, the duty to act or take the precaution is imposed by law. \"Given a relation,\" says Judge Cardozo with characteristic insight,3","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"1934-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79348938","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"International Congress of Comparative Law","authors":"A. Bracken","doi":"10.1093/ajcl/34.4.827","DOIUrl":"https://doi.org/10.1093/ajcl/34.4.827","url":null,"abstract":"","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"1933-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76640575","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Writ of Error Coram Nobis","authors":"L. Orfield","doi":"10.2307/1329353","DOIUrl":"https://doi.org/10.2307/1329353","url":null,"abstract":"","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"1933-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89629802","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Frankenstein, Incorporated, by I. Maurice Wormser","authors":"D. James","doi":"10.1086/254422","DOIUrl":"https://doi.org/10.1086/254422","url":null,"abstract":"","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"1931-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75445003","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Custody of Children","authors":"R. Brown","doi":"10.2307/1101779","DOIUrl":"https://doi.org/10.2307/1101779","url":null,"abstract":"","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87800772","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Covenants Running with the Land","authors":"B. Gavit","doi":"10.2307/1110532","DOIUrl":"https://doi.org/10.2307/1110532","url":null,"abstract":"","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75886625","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Senate and the League of Nations, by Henry Cabot Lodge","authors":"A. S. Hershey","doi":"10.1086/ahr/31.3.555","DOIUrl":"https://doi.org/10.1086/ahr/31.3.555","url":null,"abstract":"","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85875083","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1002/j.1551-8833.1937.tb13925.x
Willis Van Devanter
Respondent South Coast Air Quality Management District (District)— the California subdivision responsible for air pollution control in the Los Angeles metropolitan area—enacted six Fleet Rules prohibiting the purchase or lease by various public and private fleet operators of vehicles that do not comply with requirements in the Rules. Petitioner Engine Manufacturers Association sued the District and its officials, claiming that the Fleet Rules were pre-empted by §209 of the federal Clean Air Act (CAA), which prohibits the adoption or attempted enforcement of any state or local “standard relating to the control of emissions from new motor vehicles or new motor vehicle engines,” 42 U. S. C. §7543(a). In upholding the Rules, the District Court found that they were not “standard[s]” under §209 because they regulate only the purchase of vehicles that are otherwise certified for sale in California, and distinguished decisions of the First and Second Circuits pre-empting similar state laws as involving a restriction on vehicle sales rather than vehicle purchases. The Ninth Circuit affirmed.
{"title":"The Supreme Court of the United States","authors":"Willis Van Devanter","doi":"10.1002/j.1551-8833.1937.tb13925.x","DOIUrl":"https://doi.org/10.1002/j.1551-8833.1937.tb13925.x","url":null,"abstract":"Respondent South Coast Air Quality Management District (District)— the California subdivision responsible for air pollution control in the Los Angeles metropolitan area—enacted six Fleet Rules prohibiting the purchase or lease by various public and private fleet operators of vehicles that do not comply with requirements in the Rules. Petitioner Engine Manufacturers Association sued the District and its officials, claiming that the Fleet Rules were pre-empted by §209 of the federal Clean Air Act (CAA), which prohibits the adoption or attempted enforcement of any state or local “standard relating to the control of emissions from new motor vehicles or new motor vehicle engines,” 42 U. S. C. §7543(a). In upholding the Rules, the District Court found that they were not “standard[s]” under §209 because they regulate only the purchase of vehicles that are otherwise certified for sale in California, and distinguished decisions of the First and Second Circuits pre-empting similar state laws as involving a restriction on vehicle sales rather than vehicle purchases. The Ninth Circuit affirmed.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73225172","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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