Law Commons^™

Private Rights Of Action In Privacy Law, Lauren Henry Scholz

William & Mary Law Review

Many privacy advocates assume that the key to providing individuals with more privacy protection is strengthening the government’s power to directly sanction actors that hurt the privacy interests of citizens. This Article contests the conventional wisdom, arguing that private rights of action are essential for privacy regulation. First, I show how private rights of action make privacy law regimes more effective in general. Private rights of action are the most direct regulatory access point to the private sphere. They leverage private expertise and knowledge, create accountability through discovery, and have expressive value in creating privacy-protective norms. Then to illustrate the …

The Temptation Of Cosmic Private Law Theory, Nathan B. Oman

Faculty Publications

It’s a heady time to be a theorist of private law. After decades of vague post-Realist functionalism or reductive economic theories, the latest generation of private law theorists have provided a proliferation of new philosophies of tort, contract, and property. The result has been a tremendous burst of intellectual creativity. While Kant and Hegel have been dragooned into debates over torts and contracts and even such supposedly wooly headed thinkers as Coke and Blackstone have been rehabilitated, there have been fewer efforts to generate natural law accounts of private law than one might expect, particularly in light of the revival …

The Morality Of Fiduciary Law, Paul B. Miller

William & Mary Law Review

Recent work of fiduciary theory has provided conceptual synthesis requisite to understanding core fiduciary principles and the structure of fiduciary liability. However, normative questions have received only sporadic attention. What values animate fiduciary law? How does, or should, fiduciary law prove responsive to them?

While in other areas of private law theory—notably, tort theory— pioneering scholars went directly at normative questions like these, fiduciary theory has been exceptional in the reticence shown toward them. The reticence is sensible. Fiduciary principles are the product of equity’s most extended and convoluted program of supplementing surrounding law. They span several distinct forms of …

Pernicious Loyalty, Andrew S. Gold

William & Mary Law Review

Fiduciary loyalty is generally considered valuable, and in the usual case it is. Yet some of the very features of loyalty that make it valuable also encourage behaviors harmful to beneficiaries, third parties, or society as a whole. Examples include the corporate director whose concern with shareholder wealth maximization leads to considerable environmental harm and the skillful attorney whose zealous representation undermines justice between the parties. In short, actions that are motivated by good-faith fiduciary loyalty may be undesirable in individual cases. I will describe such cases as cases of pernicious loyalty. Outside the law, pernicious loyalty is often limited …

The Logic Of Contract In The World Of Investment Treaties, Julian Arato

William & Mary Law Review

Investment treaties protect foreign investors who contract with sovereign states. It remains unclear, however, whether parties are free to contract around these treaty rules, or whether treaty provisions should be understood as mandatory terms that constrain party choice. While investment treaties clearly apply to contracts in some way, they are silent as to how these instruments ultimately interact. Moreover, arbitral jurisprudence has varied wildly on this point, creating significant problems of certainty, efficiency, and fairness—for states and foreign investors alike.

This Article reappraises the treaty/contract issue from the ex ante perspective of contracting states and foreign investors. I advance three …

Juries, Social Norms, And Civil Justice, Jason M. Solomon

Faculty Publications

At the root of many contemporary debates and landmark cases in the civil justice system are underlying questions about the role of the civil jury. In prior work, I examined the justifications for the civil jury as a political institution, and found them wanting in our contemporary legal system.

This Article looks closely and critically at the justification for the civil jury as an adjudicative institution and questions the conventional wisdom behind it. The focus is on tort law because the jury has more power to decide questions of law in tort than any other area of law. The Article …

Diversity And The Civil Jury, Christina S. Carbone, Victoria C. Plaut

William & Mary Law Review

No abstract provided.

Juries As Regulators Of Last Resort, Stephan Landsman

William & Mary Law Review

No abstract provided.

An Exploration Of "Noneconomic" Damages In Civil Jury Awards, Herbert M. Kritzer, Guangya Liu, Neil Vidmar

William & Mary Law Review

No abstract provided.

A Theory Of Civil Liability, Nathan B. Oman

Faculty Publications

No abstract provided.

Magna Carta, Civil Law, And Canon Law, Thomas J. Mcsweeney

Faculty Publications

No abstract provided.

The Supreme Court's Theory Of Private Law, Nathan B. Oman, Jason M. Solomon

Faculty Publications

In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court’s recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival.

Our argument is that the Supreme Court’s theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment–tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has …

The Political Puzzle Of The Civil Jury, Jason M. Solomon

Faculty Publications

At the root of many contemporary debates over the civil justice or tort system—debates over punitive damages, preemption, and tort reform more broadly—are underlying questions about the justification for the civil jury. The United States is the only country that still uses a jury in civil cases, and most civil jury trials are tort trials. The jury has more power to decide questions of law in tort than in any other area of law, so any serious discussion of tort law must have the civil jury at its center.

The debate over the jury—in both the academic literature and the …

Promise And Private Law, Nathan B. Oman

Faculty Publications

This essay was part of a symposium on the thirtieth anniversary of the publication of Charles Fried's Contract as Promise and revisits Fried's theory in light of two developments in the private-law scholarship: the rise of corrective justice and civil-recourse theories. The structural features that motivate these theories-the bilateralism of damages and the private standing of plaintiffs-are both elements of the law of contracts that Contract as Promise sets out to explain. I begin with the issue of bilateralism. Remedies--in particular the defense of expectation damages--occupy much of Fried's attention in Contract as Promise, and he insists that this particular …

Secular Rights And Religious Wrongs? Family Law, Religion And Women In Israel, Pascale Fournier, Pascal Mcdougall, Merissa Lichtsztral

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Why There Is No Duty To Pay Damages: Powers, Duties, And Private Law, Nathan B. Oman

Faculty Publications

This Article was part of a symposium on the rise of civil recourse theory. It contributes to this debate by defending a simple but counterintuitive claim: There is no duty to pay damages in either tort or contract law. The absence of such a duty provides a reason for believing that civil recourse provides a better account of private law than does corrective justice. Corrective justice is committed to interpreting private law as creating duties for wrongdoers to compensate their victims. In contrast, civil recourse sees the law as empowering plaintiffs against defendants. My argument is that a careful analysis …

Civil Recourse As Social Equality, Jason M. Solomon

Faculty Publications

No abstract provided.

The Advantages Of The Civil Law Judiciary As The Model For Emerging Legal Systems, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Envisioning A Global Legal Culture, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Statutory Inflation And Institutional Choice, Lawrence M. Solan

William & Mary Law Review

No abstract provided.

Book Review Of Private Law And Social Inequality In The Industrial Age, Michael Ashley Stein

Faculty Publications

No abstract provided.

Federal Procedure - Declaratory Judgments In Civil Suits Following Conviction Of One Of The Parties In A Criminal Case, James Goodson

William & Mary Law Review

No abstract provided.

Common Law Interpleader In Equity, Kenneth H. Lambert

William & Mary Law Review

No abstract provided.

An Analysis Of Summary Proceedings Under Special Statutes In Virginia, Philip G. Denman

William & Mary Law Review

No abstract provided.