Law School professor Peter Schuck said the central point of contention in the case will likely be proving whether or not the Yale Club was negligent in failing to provide stairs to the dais. Bork will try to prove that the club violated a well-established custom of providing stairs, he said, while the club will likely counter by asserting that there was no such custom, that the accident was Bork's fault, or that he assumed the risk of falling.
'He will probably have to try to overcome two defenses,' said Schuck, who includes tort law among his major fields of teaching. 'One is comparative fault, which would be based on the idea that even if Yale was negligent, he was also negligent in having observed the height of the dais and then not asking for assistance, such as steps, to reduce the risk. The other defense is assumption of risk, Yale's claim being that he observed the risk and decided knowingly to take it without assistance.'...
Schuck, who was on the Yale Law School faculty with Bork for a very brief period from 1979 to 1980, said he believes Bork should have been confirmed for the Court seat on the basis of his intellectual merits and academic work. But he said Bork has harbored a grudge against the law school since the confirmation battle.
"I think his having elevated his defeat into a now 20-year crusade of resentment and fury seems rather churlish," Schuck said. "I certainly sympathize with his anger in having been defeated in his bid for a seat he had every reason to believe he deserved, but I think that this is in the nature of modern-style high Supreme Court nomination politics, and he should get over it."
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