Re: Darwinian and non-Darwinian (was Re: RFEP & ID)

From: Dr. Blake Nelson (
Date: Mon Sep 29 2003 - 12:01:24 EDT

  • Next message: Alexanian, Moorad: "RE: Darwinian and non-Darwinian (was Re: RFEP & ID)"

    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 <> 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.
    > Shalom,
    > George
    > Dr. Blake Nelson wrote:
    > >
    > > What a novel, literal approach to the phrase.
    > >
    > > If a plane crashes, *something* went wrong. The
    > crash
    > > (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
    > someone
    > > bears the risk of the failure, unless they can
    > show
    > > that *something else* was responsible.
    > >
    > > A little context is usually a good thing to avoid
    > > confusion.
    > >
    > > --- Glenn Morton <> wrote:
    > > >
    > > > 9-28-03
    > > > >-----Original Message-----
    > > > >From:
    > > > []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,
    > event,
    > > > 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
    > a
    > > > fact speaking for itself.
    > > >
    > >
    > > __________________________________
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    > --
    > George L. Murphy

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