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Full-Text Articles in Law
Hand, Posner, And The Myth Of The "Hand Formula", In Symposium, Negligence In The Law, Richard W. Wright
Hand, Posner, And The Myth Of The "Hand Formula", In Symposium, Negligence In The Law, Richard W. Wright
All Faculty Scholarship
There is a striking incongruence between the discussions of negligence in the legal literature, including the American Law Institute's Restatement of Torts, and the understandings of ordinary people and the actual practice of the courts. The legal literature generally assumes that an aggregate-risk-utility test is employed to determine whether conduct was reasonable or negligent. This test was invented by legal academics and inserted in the first Restatement during the first part of the twentieth century, although, as recent studies all conclude, it had almost no support in the cases prior to its adoption in the Restatement and for several decades …
The Grounds And Extent Of Legal Responsibility, In Symposium, What Do Compensatory Damages Compensate?, Richard W. Wright
The Grounds And Extent Of Legal Responsibility, In Symposium, What Do Compensatory Damages Compensate?, Richard W. Wright
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This article identifies and discusses the three principal limitations on the extent of legal responsibility for tortiously caused harm and explains and justifies them by reference to the principle of interactive justice, which holds one legally responsible for causing (or being imminently about to cause) harm to another's person or property as a result of conduct that is inconsistent with others' right to equal freedom. The three principal limitations prevent liability for a tortiously caused harm when (1) the harm almost certainly would have occurred anyway in the absence of any tortious conduct or condition (the "no worse off" limitation), …
Legal Protection For Conversational And Communication Privacy In Family, Marriage And Domestic Disputes: An Examination Federal And State Wiretap And Stored Communications Acts And The Common Law Privacy Intrusion Tort, Richard C. Turkington
Working Paper Series
In the article I examine the legality of the not uncommon practice of surreptitiously recording telephone conversations, videotaping activities and accessing e-mail or voicemail communications by parties in domestic disputes. First, I examine the important values that are implicated by such activities. These values include conversation, communication and physical privacy. Conversation (and communication) privacy are valued on both intrinsic and instrumentalist grounds. These values run into countervailing values in domestic conflict cases. These include parental autonomy in child rearing and the best interests of the child. I argue that the pervasiveness of electronic surveillance and the emerging tradition in our …
Pain-And-Suffering Damages In Tort Law: Revisiting The Theoretical Framework And The Empirical Evidence, Ronen Avraham
Pain-And-Suffering Damages In Tort Law: Revisiting The Theoretical Framework And The Empirical Evidence, Ronen Avraham
Law & Economics Working Papers Archive: 2003-2009
Should there be pain-and-suffering damages in tort law? Most legal economists who wrote on the subject that there should not be pain-and-suffering damages in tort law. A minority of scholars thought the decision of whether tort law should provide pain-and-suffering damages is an empirical, or an experimental, question that cannot be armchair-theorized. Yet, all scholars who have done empirical or experimental work to explore the desirability of pain-and-suffering damages reached the conclusion that it is undesirable. In this paper I argue that the majority view cannot serve as a policy-making aid. I side with the minority of scholars who argue …
The Supreme Court, The Gun Industry, And The Misguided Revival Of Strict Territorial Limits On The Reach Of State Law, Allen K. Rostron
The Supreme Court, The Gun Industry, And The Misguided Revival Of Strict Territorial Limits On The Reach Of State Law, Allen K. Rostron
Faculty Works
While tort lawsuits against gun manufacturers and sellers have captured much attention in recent years, there is an intriguing constitutional issue arising in the cases that has largely escaped notice. The gun companies build a defense from statements in a line of recent Supreme Court opinions indicating that the dormant Commerce Clause forbids application of a state statute to commerce occurring wholly outside the state's borders. The gun companies contend that it would be unconstitutional for them to be held liable under state tort law for the manufacture or sale of a gun that occurred outside the state. Several courts …
Before And After: Temporal Anomalies In Legal Doctrine, Leo Katz
Before And After: Temporal Anomalies In Legal Doctrine, Leo Katz
All Faculty Scholarship
Legal doctrine exhibits some striking temporal anomalies, previously not much adverted to. Wrongdoing looked at before it has occurred, and after is has occurred, is apt to look very different. I take up the two key components of wrongdoing seriatim, the harm-portion and the misconduct-portion: the "damage" part and the "liability" part. We tend to look at harm in a harm-agnifying way before it has occurred, and in a harm-inimizing way afterwards. We thus tend to think about negligence and the harm it wreaks in seemingly inconsistent ways. I examine and reject some possible explanations of this. Misconduct too looks …