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Articles 1 - 12 of 12
Full-Text Articles in Law
The Mobility Case For Regionalism, Nestor M. Davidson, Sheila R. Foster
The Mobility Case For Regionalism, Nestor M. Davidson, Sheila R. Foster
Faculty Scholarship
In the discourse of local government law, the idea that a mobile populace can “vote with its feet” has long served as a justification for devolution and decentralization. Tracing to Charles Tiebout’s seminal work in public finance, the legal-structural prescription that follows is that a diversity of independent and empowered local governments can best satisfy the varied preferences of residents metaphorically shopping for bundles of public services, regulatory environment, and tax burden. This localist paradigm generally presumes that fragmented governments are competing for residents within a given metropolitan area. Contemporary patterns of mobility, however, call into question this foundational assumption. …
State Speech And Political Liberalism, Abner S. Greene
State Speech And Political Liberalism, Abner S. Greene
Faculty Scholarship
Jim Fleming and Linda McClain have written an impressive book on the responsible exercise of rights, which flows from prior writing by each.Their title, "Ordered Liberty," is a bit of a misnomer, however. When one thinks of that phrase, one thinks of the ways in which we balance liberty against order, i.e., against security, police power, controlling the excesses of liberty. Responsibility in the exercise of rights is an aspect of how rights are orderly, but the major hard cases involving rights are hard because significant claims of harm are in play. Think of much of constitutional criminal procedure, free …
Palsgraf, Punitive Damages, And Preemption, Benjamin C. Zipursky
Palsgraf, Punitive Damages, And Preemption, Benjamin C. Zipursky
Faculty Scholarship
This Article utilizes civil recourse theory along with a pragmatic conceptualist methodology to solve three problems in tort law: one on Palsgraf v. Long Island Railroad Co., one on punitive damages (as seen in the Supreme Court’s struggles with Philip Morris v. Williams), and one on federal preemption (as seen in the Supreme Court’s 4-4 deadlock in Warner-Lambert Company v. Kent). Confusion has been generated by a failure to recognize that -- despite the many aspects of tort law that render it importantly public -- there is something distinctively private about the common law of torts. When one firmly rejects …
Consent V. Closure, Howard M. Erichson, Benjamin C. Zipursky
Consent V. Closure, Howard M. Erichson, Benjamin C. Zipursky
Faculty Scholarship
Claimants, defendants, courts, and counsel are understandably frustrated by the difficulty of resolving mass tort cases. Defendants demand closure, but class certification has proved elusive and non-class settlements require individual consent. Lawyers and scholars have been drawn to strategies that solve the problem by empowering plaintiffs’ counsel to negotiate package deals that effectively sidestep individual consent. In the massive Vioxx settlement, the parties achieved closure by including terms that made it unrealistic for any claimant to decline. The American Law Institute’s Principles of the Law of Aggregate Litigation offers another path to closure: it proposes to permit clients to consent …
Torts As Wrongs, John C.P. Goldberg, Benjamin C. Zipursky
Torts As Wrongs, John C.P. Goldberg, Benjamin C. Zipursky
Faculty Scholarship
Torts scholars hold different views on why tort law shifts costs from plaintiffs to defendants. Some invoke notions of justice, some efficiency, and some compensation. Nearly all seem to agree, however, that tort law is about the allocation of losses. This Article challenges the widespread embrace of loss-based accounts as fundamentally misguided. It is wrongs not losses that lie at the foundation of tort law. Tort suits are about affording plaintiffs an avenue of civil recourse against those who have wronged them. Although torts were once routinely understood as wrongs, since Holmes’s time, tort scholars have tended to suppose that …
The Easy Case For Products Liability: A Response To Polinsky & Shavell, Benjamin C. Zipursky, John C.P. Goldberg
The Easy Case For Products Liability: A Response To Polinsky & Shavell, Benjamin C. Zipursky, John C.P. Goldberg
Faculty Scholarship
In their article “The Uneasy Case for Product Liability,” Professors Polinsky and Shavell assert the extraordinary claim that there should be no tort liability - none at all - for injuries caused by widely-sold products. In particular, they claim to have found convincing evidence that the threat of tort liability creates no additional incentives to safety beyond those already provided by regulatory agencies and market forces, and that tort compensation adds little or no benefit to injury victims beyond the compensation already provided by various forms of insurance. In this response, we explain that, even on its own narrow terms, …
Judicial Power And Moral Ideology In Wartime: Shaping The Legal Process In World War I Britain , Rachel Vorspan
Judicial Power And Moral Ideology In Wartime: Shaping The Legal Process In World War I Britain , Rachel Vorspan
Faculty Scholarship
Offering a cautionary lesson of contemporary significance, the Article suggests that judicial power is not in and of itself the solution to executive infringements on due process rights in wartime. It examines the response of the British judiciary to serious threats to its institutional power during the First World War. To facilitate prosecution of the war, the government narrowed the jurisdiction of the traditional courts by eliminating jury trial, subjecting civilians to court-martial, and establishing new administrative tribunals to displace the traditional courts. Rather than remaining passive and deferential to the executive, as scholars have generally assumed, the judges moved …
Law And War: Individual Rights, Executive Authority, And Judicial Power In England During World War I , Rachel Vorspan
Law And War: Individual Rights, Executive Authority, And Judicial Power In England During World War I , Rachel Vorspan
Faculty Scholarship
This Article examines the role of the English courts during World War I, particularly the judicial response to executive infringements on individual liberty. Focusing on the areas of detention, deportation, conscription, and confiscation of property, the Article revises the conventional depiction of the English judiciary during World War I as passive and peripheral. It argues that in four ways the judges were activist and energetic, both in advancing the government's war effort and in promoting their own policies and powers. First, they were judicial warriors, developing innovative legal strategies to legitimize detention and other governmental restrictions on personal. Second, they …
Civil Recourse, Not Corrective Justice, Benjamin C. Zipursky
Civil Recourse, Not Corrective Justice, Benjamin C. Zipursky
Faculty Scholarship
No abstract provided.
Rational Recreation And The Law: The Transformation Of Popular Urban Leisure In Victorian England , Rachel Vorspan
Rational Recreation And The Law: The Transformation Of Popular Urban Leisure In Victorian England , Rachel Vorspan
Faculty Scholarship
In this article, Rachel Vorspan investigates the complex role played by the courts in the social and cultural transformation of Victorian England. Through focusing on judicial rulings in the recreational as well as political and industrial contexts she explains how the English judiciary played an important function in "rationalizing" the major institutions and practices of urban leisure
Freedom Of Assembly And The Right To Passage In Modern English Legal History , Rachel Vorspan
Freedom Of Assembly And The Right To Passage In Modern English Legal History , Rachel Vorspan
Faculty Scholarship
This Article suggests, on the broadest level, that the history of the "right to passage" in the past two centuries is explicable only in terms of the complex interaction between formal legal doctrine on the one hand and social and political pressures on the other. Specific challenges to public order significantly shaped the evolution of legal rules, but these rules, once established, constrained official action and compelled the authorities at critical junctures to develop countervailing strategies. This exploration confirms that neither an externalist nor internalist approach to legal history by itself adequately explains historical change and, moreover, that the relative …
Court Appointment Of Attorneys In Civil Cases: The Constitutionality Of Uncompensated Legal Assistance Note, Bruce A. Green
Court Appointment Of Attorneys In Civil Cases: The Constitutionality Of Uncompensated Legal Assistance Note, Bruce A. Green
Faculty Scholarship
Whether an individual becomes a party to judicial proceeding involuntarily, as a criminal or civil defendant, or voluntarily, as a civil plaintiff seeking redress of an injury, the assistance of counsel will increase his chances for a favorable disposition. When an impecunious litigant is unable to retain counsel, the question arises of who must bear the burden created by the complexity of adjudication. Although the Supreme Court has been sympathetic to the need for counsel in criminal cases, an indigent litigant in civil cases often will be denied legal assistance, and therefore will bear the burden himself In other instances, …