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August 2016 Archives


There is a Supreme Court election in Ohio this Fall, and recent news coverage of the candidates have referred to the candidate's position regarding "legislating from the bench." For example, Supreme Court Justice candidate Judge Pat DeWine is quoted as saying that what Ohio needs is justices who will "not legislate from the bench." It is not always clear, however, just what is meant by this phrase, and it is most often invoked when decrying a court's recognition of a claimed constitutional right. But, to the extent that such a philosophy is also applicable to the law of tort liability, it is problematic. It is submitted that judges should be able to fulfill their traditional role vis-à-vis tort law, and should be able to apply longstanding principles of tort liability to new fact patterns, without being accused of improperly "legislating from the bench." Moreover, when judges are prevented from fulfilling their traditional role, because the General Assembly has enacted TORT REFORM legislation addressing an area of tort liability, there are, inevitably, disturbing results.

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