Law Commons^™

Preliminary Damages, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well off. In this Essay, we propose a new remedy that can dramatically improve the fortunes of poor plaintiffs and thereby change the errant path of the law: preliminary damages. The unavailability of preliminary damages has dire implications for poor plaintiffs, especially those wronged by affluent individuals and corporations. Resource constrained plaintiffs cannot afford prolonged litigation on account of their limited financial means. Consequently, they are forced to either …

Retroactive Adjudication, Samuel Beswick

All Faculty Publications

This Article defends the retroactive nature of judicial lawmaking. Recent Supreme Court judgments have reignited debate on the retroactivity of novel precedent. When a court announces a new rule, does it apply only to future cases or also to disputes arising in the past? This Article shows that the doctrine of non-retroactive adjudication offers no adequate answer. In attempting to articulate a law of non-retroactivity, the Supreme Court has cycled through five flawed frame-works. It has variously characterized adjudicative non-retroactivity as (1) a problem of legal philosophy; (2) a discretionary exercise for balancing competing right and reliance interests; (3) a …

Empowering Individual Plaintiffs, Alex Stein, Gideon Parchomovsky

All Faculty Scholarship

The individual plaintiff plays a critical—yet, underappreciated—role in our legal system. Only lawsuits that are brought by individual plaintiffs allow the law to achieve the twin goals of efficiency and fairness. The ability of individual plaintiffs to seek justice against those who wronged them deters wrongdoing, ex ante, and in those cases in which a wrong has been committed nevertheless, it guarantees the payment of compensation, ex post. No other form of litigation, including class actions and criminal prosecutions, or even compensation funds, can accomplish the same result. Yet, as we show in this Essay, in many key sectors of …

Empirical Doctrine, Jessie Allen

Articles

We can observe and measure how legal decision makers use formal legal authorities, but there is no way to empirically test the determinative capacity of legal doctrine itself. Yet, discussions of empirical studies of judicial behavior sometimes conflate judges’ attention to legal rules with legal rules determining outcomes. Doctrinal determinacy is not the same thing as legal predictability. The extent to which legal outcomes are predictable in given contexts is surely testable empirically. But the idea that doctrine’s capacity to produce or limit those outcomes can be measured empirically is fundamentally misguided. The problem is that to measure doctrinal determinacy, …

The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen

Articles

This Article starts with a puzzle: Why is the doctrinal approach to “proximate cause” so resilient despite longstanding criticism? Proximate cause is a particularly extreme example of doctrine that limps along despite near universal consensus that it cannot actually determine legal outcomes. Why doesn’t that widely recognized indeterminacy disable proximate cause as a decision-making device? To address this puzzle, I pick up a cue from the legal realists, a group of skeptical lawyers, law professors, and judges, who, in the 1920s and 1930s, compared legal doctrine to ritual magic. I take that comparison seriously, perhaps more seriously, and definitely in …

Two Kinds Of Plain Meaning, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Is plain meaning so plain? This is not meant to be a philosophical question, but one deserving serious legal analysis. The plain-meaning rule claims to provide certainty and narrow statutes' domains. The author agrees with, as a relative claim, comparing plain meaning with purposivism. She does not agree that plain-meaning analysis is as easy as its proponents suggest. In this piece, the author teases out two very different ideas of plain meaning--ordinary/popular meaning and expansive/legalist meaning--suggesting that doctrinal analysis requires more than plain-meaning simpliciter. Perhaps more importantly, she argues that plain meaning, as legalist meaning, can quite …

Attorney Hit With Sanctions For Poor Brief (New York Law Journal), Deborah Pines

News Articles

No abstract provided.

Listening To Tribal Legends: An Essay On Law And The Scientific Method, Nancy Levit

Faculty Works

Much of jurisprudence is storytelling, recounting tales of what has gone before; improvising and crafting new stories of legal theory from old ones. Useful kernels are passed from one generation of legal thinkers to the next. Like tribal legends, the messages in many stories of jurisprudence can be understood only by a select audience. Legends often come with morals; theories of jurisprudence often impart prescription for living within the law. Jurisprudence, like legends, concerns fundamental issues, confronts cosmic questions and weaves in magic. Sometimes both possess humor as well.

Unfortunately, some modern versions of jurisprudential theories have become anecdotal. The …

Book Review Of Passion: An Essay On Personality , Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

Passion is a cogently structured, compel Jingly argued and seductively enthralling masterpiece which, in years to come, will undoubtedly stand out as an inspirational source for many who seek social transformation. Unger's style, in this essay at least, is lucid and inviting. Substantively, Passion demonstrates not only the depth of his penetrating intellect but also his command of an array of' disciplines. Unger's polymathy is all the more impressive when we remember that ours is an era in which idiosyncratic specialization is the norm.

An Attack On Categorical Approaches To Freedom Of Speech, Pierre J. Schlag

Publications

No abstract provided.

Extradition Between France And The United States: An Exercise In Comparative And International Law, Christopher L. Blakesley

Scholarly Works

In 1878 Cardaillac defined extradition as “the right for a State on the territory of which an accused or convicted person has take refuge, to deliver him up to another State wich has requisitioned his return and is competent to judge and punish him.” The term “extradition” was imported to the United States from France, where the decret-loi of Febraury 19, 1791, appears to be the first official document to have used the term. The term is not found in treaties or conventions until 1828. The Latin equivalent to extradition, “tradere”, is not found in early Latin works, but the …