From: Dr. Blake Nelson (email@example.com)
Date: Mon Sep 29 2003 - 12:01:24 EDT
Sorry, I did not make it clear enough by trying to be
too brief. The phrase is used in a particular area of
law -- product liability. Wherein, historically, the
risk of something going wrong was often placed on the
manufacturer of the product.
If the product fails to perform as it is normally
intended to perform, that "speaks for itself" in the
sense that the product did not perform as intended.
Given the complexities of proving what exactly went
wrong, the law in *some jurisdictions* did not make a
plaintiff show *exactly* what went wrong, because
something *obviously* went wrong from the "objective"
point of view of the normal functioning of the
product. The failure speaks for itself that the
product did not work as normally or usually intended.
Generally, a "plane" (as opposed to a bomb or missile)
is not intended by the *designer* to "crash" but to
get from point A to point B in one piece.
That presumption, of course, could be overcome by
showing that something that was not the manufacturer's
fault, e.g., improper use (suicidal pilots), someone
else having modified the product, etc. was really at
So, my point was that Glenn's understanding really was
not the correct understanding at all since he did not
understand the context in which the phrase was used
(through no fault of his own). Of course, Jay, if I
recall correctly, used the phrase in too broad of a
sense for its proper legal usage.
The phrase is not a philosophical statement of any
kind, but a shorthand, practical recognition that
plaintiffs often did not (and still don't) have the
ability to necessarily pinpoint where the designer of
a product failed. In order to allow them to not
simply have their suits dimissed for failing to set
forth adequate facts, the doctrine allowed the fact
that the product failed to be sufficient facts to at
least bring a product liability lawsuit. This allowed
the plaintiffs to pursue their theory re product
liability through discovery, etc. to help determine if
there was a design flaw. And again, this was not the
end of the story on the matter as there are many ways
the defendant could still either get the suit
dismissed or prevail on the ultimate facts of the
Failure of something would be defined in terms of its
normal use, so Osama and kamikazees notwithstanding, a
plane that crashes has failed to fulfill its normal
use. Now, of course, if the plane crashes due to
suicide pilots, the airplane manufacturer is not
necessarily liable at all for the crash.
So, the naked fact of a *failure* of the product to
perform normally allows the suit to go forth, but does
not determine whether or not such a suit succeeds.
So, in the legal context, it speaks for itself to the
fact that the product did not perform as it
normatively should have from the standpoint of the
intent of the designers and what a normal user of a
plane would understand its function to be.
In attempts to work "rough (i.e., approximate)
justice" the law can be extremely pragmatic.
--- George Murphy <firstname.lastname@example.org> wrote:
> I've got to agree with Glenn here. There are no
> naked facts bereft of any
> theoretical presuppositions or interpretations.
> You say below, "If a plane crashes, *something*
> went wrong." Really? When
> planes struck the Twin Towers 2 years ago, Osama bin
> Laden didn't think that anything
> had "gone wrong." He thought that what had happened
> was profoundly right. Similarly
> for Japanese kamikaze pilots. & for that matter even
> calling those events "crashes" is
> misleading because it suggests that they (like most
> plane "crashes") were accidental
> rather than deliberate.
> Dr. Blake Nelson wrote:
> > What a novel, literal approach to the phrase.
> > If a plane crashes, *something* went wrong. The
> > (the thing) speaks for itself that something went
> > wrong.
> > What exactly went wrong is a different matter and
> > beside the point for the use of the phrase,
> because it
> > is generally used in liability contexts where
> > bears the risk of the failure, unless they can
> > that *something else* was responsible.
> > A little context is usually a good thing to avoid
> > confusion.
> > --- Glenn Morton <email@example.com> wrote:
> > >
> > > 9-28-03
> > > >-----Original Message-----
> > > >From: firstname.lastname@example.org
> > > [mailto:email@example.com]On
> > > >Behalf Of Jay Willingham
> > > >
> > > >The law has a saying, "res ipsa loquitor", e.g.
> > > "the thing speaks for
> > > >itself".
> > >
> > > res - thing, object, being, matter, affair,
> > > fact, circumstance.
> > >
> > > You know, I have sat outside at night under the
> > > stars, in a library with
> > > lots of facts, and you know, I have never heard
> > > fact speaking for itself.
> > >
> > __________________________________
> > Do you Yahoo!?
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> George L. Murphy
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