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Full-Text Articles in Jurisprudence

Sexual Harassment Ndas: Privacy, Complicity, And The Paradox Of Blackmail, Scott Altman Aug 2019

Sexual Harassment Ndas: Privacy, Complicity, And The Paradox Of Blackmail, Scott Altman

University of Southern California Legal Studies Working Paper Series

Harvey Weinstein and the #MeToo movement focused public attention on both sexual predation and the non-disclosure agreements (NDAs) that help it to persist. NDAs help repeat perpetrators avoid detection and punishment, increasing the risk of harm to future victims. At the same time, NDAs are thought to have benefits. They protect informational privacy interests of both perpetrators and victims, facilitate dispute settlement, and provide victims with larger settlement awards.

This article offers moral arguments against the supposed virtues of NDAs. Guilty perpetrators are not entitled to informational privacy about their wrongs. It might be thought that NDAs protect perpetrators from ...


Fair Precaution, Gregory C. Keating Aug 2019

Fair Precaution, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

This book chapter briefly sketches a general framework which explains why questions of fairness have a natural salience when the imposition of risks of harm by some on others is at issue, and it applies that conception to major aspects of negligence law. Fairness comes to the fore because risk impositions require us to compare what those who impose the risks stand to gain, and those upon whom they are imposed stand to lose. Determinations of due care reconcile competing claims of liberty and security, for a plurality of persons. Fairly reconciling liberty and security requires reconciling them on terms ...


Law Matters -- Less Than We Thought, Daniel M. Klerman, Holger Spamann Aug 2019

Law Matters -- Less Than We Thought, Daniel M. Klerman, Holger Spamann

University of Southern California Legal Studies Working Paper Series

In a pre-registered 2×2×2 factorial between-subject randomized lab experiment with 61 federal judges, we test if the law influences judicial decisions, if it does so more under a rule than under a standard, and how its influence compares to that of legally irrelevant sympathies. The judges were given realistic materials and a relatively long period of time (50 minutes) to decide a run-of-the-mill auto accident case. We find weak evidence for the law effect, stronger evidence that rules constrain more than standards, and no evidence of a sympathy effect. Unexpectedly, we find that judges were more likely to ...


Between Absolutism And Efficiency: Reply To Professors Giestfeld, Gray, And Priel, Gregory C. Keating Aug 2019

Between Absolutism And Efficiency: Reply To Professors Giestfeld, Gray, And Priel, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

This paper replies to Professor Geistfeld, Grady, and Priel’s excellent comments on my article Principles of Risk Imposition and the Priority of Avoiding Harm, 36 Revus J. for Const. Th. & Phil. of Law, 7 (2018). Both my article and Professor Geistfeld’s, Grady’s and Priel’s papers are part of the “Symposium: Risk Regulation and Tort Law, A discussion with Gregory C. Keating.” This Reply completes the Symposium. It attempts, briefly, to develop two lines of argument. One line attempts to respond to the specific criticism that Professors Geistfeld, Grady, and Priel, make in the Comments. In part ...


Corrective Justice: Sovereign Or Subordinate?, Gregory C. Keating Aug 2019

Corrective Justice: Sovereign Or Subordinate?, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

The concept of “corrective justice” has figured prominently in debates over the formal structure and normative commitments of private law—especially tort law—over the past generation. This chapter organizes those debates around two very different conceptions of the role and significance of corrective justice in private law, especially tort law. One conception sees corrective justice as “sovereign” the other sees it as “subordinate”. On a subordinate conception, corrective justice is an aspect of the institution of tort law and it must be accounted for by an adequate theory of tort. On a sovereign conception, corrective justice is the master ...


Is Tort Law "Private"?, Gregory C. Keating Aug 2019

Is Tort Law "Private"?, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

A prominent, important strand of contemporary thinking about tort law—represented most powerfully by the work of Arthur Ripstein and Ernest Weinrib—has coalesced around the thesis that the concept of “private law” is the key to the subject. In one familiar usage of the term, the thesis that tort is private law is innocuous. Tort is private law in the sense that it is concerned with relations among persons in civil society. As the banner under which a school of thought marches, “private law” is a much weightier concept. It asserts that the essence of tort law is encapsulated ...


Posner And Class Actions, Daniel M. Klerman Jan 2019

Posner And Class Actions, Daniel M. Klerman

University of Southern California Legal Studies Working Paper Series

The hallmark of Judge Posner’s class action decisions is rigorous review to ensure that aggregate litigation serves the best interests of class members and does not unduly pressure defendants to settle. Although he championed class actions, especially as a way to provide efficient justice in cases involving numerous small claims, Posner also recognized that, because of the agency problems that pervade class action litigation, ordinary adversary procedures were not sufficient to protect class members. As a result, the judge had to act as a fiduciary for the class, especially when approving settlements and fee awards. In addition, the colossal ...


Principles Of Risk Imposition And The Priority Of Avoiding Harm, Gregory C. Keating Nov 2018

Principles Of Risk Imposition And The Priority Of Avoiding Harm, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

Standards which prescribe more than efficient precaution against physical harm and health injury are commonplace in American environmental, health and safety regulation. The “safe level” standard, for example, requires the elimination of all significant risks. The “feasibility” standard requires the elimination of significant risks to the extent insofar as it is possible to do so without impairing the long run survival of the activities which give rise to the risks. These standards reach back more than a generation to the founding of the Environmental Protection and Occupational Health and Safety Agencies. You might expect them to be too well-entrenched to ...


Privatizing Law: Is Rule Of Law An Equilibrium Without Private Ordering?, Gillian K. Hadfield, Barry R. Weingast Nov 2017

Privatizing Law: Is Rule Of Law An Equilibrium Without Private Ordering?, Gillian K. Hadfield, Barry R. Weingast

University of Southern California Legal Studies Working Paper Series

Almost all theorizing about law, including the rule of law, begins with government. Analysts from a wide variety of perspectives make this presumption. We contest this presumption. In this paper, we ask whether rule of law is an equilibrium in the absence of private ordering. To address this question, we rely on the what-is-law model of Hadfield and Weingast (2012). Most legal theory has asserted that legal attributes are characteristic of legal orders, such as generality, clarity and neutrality. In contrast, we show that they can be derived from a minimal normative premise about what constitutes law in a setting ...


From Eternity To Here: In Search Of The Origins Of Secularism, Nomi Stolzenberg Sep 2017

From Eternity To Here: In Search Of The Origins Of Secularism, Nomi Stolzenberg

University of Southern California Legal Studies Working Paper Series

This article puts forth a hypothesis about the theological origins of liberalism and secularism that offers an alternative to standard accounts of the intellectual origins/theological foundations of liberalism and of political theology which see the two as separate and mutually exclusive. On my hypothesis, the emergency theory of the state associated with political theology and the liberal theory of the state are (or were at their point of origin) the same thing. The hypothesis is that the theory that the state must be secular (and must be founded on principles of due process and religious pluralism, which come to ...


Comment On Gardner: Duty And Right In Private Law, Gregory C. Keating Dec 2016

Comment On Gardner: Duty And Right In Private Law, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

John Gardner’s From Personal Life to Private Law is a striking marriage of cultivated sensibility and analytic prowess. Professor Gardner is both acutely sensitive to the lived experience of our moral relationships and highly skilled at disentangling the threads which those relationships weave together to realize rich and distinctive forms of value. From Personal Life to Private Law pursues its thesis that there are multiple and deep connections between the ideas of duty, responsibility and reparation that lie at the center of private law and their counterparts in the relationships that figure centrally in our private lives with both ...


Must The Hand Formula Not Be Named?, Gregory C. Keating Dec 2016

Must The Hand Formula Not Be Named?, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

This paper responds to Benjamin Zipursky’s Reasonableness in and out of Negligence Law 163 U. PA. L. REV. 2131 (2015). It takes issue with Professor Zipursky’s aversion to the Hand Formula. Trying to write the Hand Formula out of negligence law at this late date is tantamount to repudiating one hundred years of tort law and theory. This revisionary theorizing is as unnecessary as it is quixotic. The Hand Formula is not only too deeply embedded in negligence law to uproot; it is also unobjectionable. Indeed, the Hand Formula is one of modern negligence law’s more important ...


Comment On Avraham And Yuracko: Torts And The Paradox Of Conservative Justice, Gregory C. Keating Dec 2016

Comment On Avraham And Yuracko: Torts And The Paradox Of Conservative Justice, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

This paper comments on Ronen Avraham & Kim Yuracko, Torts and Discrimination forthcoming in the Ohio State Law Journal. Professors Avraham and Yuracko’s fine article, Torts and Discrimination, calls our attention to the fact that the entrenched fact of race and gender discrimination exerts a powerful, structural influence on tort damages, especially in bodily injury and wrongful death cases. Damages in tort—and in private law more generally—are reparative. Their role is to put the plaintiff in the position he would have been in but for the defendant’s wrong. Making the plaintiff whole requires that courts determine how ...


Liability Without Regard To Fault: A Comment On Goldberg & Zipursky, Gregory C. Keating Dec 2016

Liability Without Regard To Fault: A Comment On Goldberg & Zipursky, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

This paper comments on John C.P. Goldberg & Benjamin C. Zipursky, The Strict Liability in Fault and the Fault in Strict Liability 85 Fordham L.Rev. 743 (2016). In their important writings over the past twenty years, Professors Goldberg and Zipursky have argued that torts are conduct-based wrongs. A conduct-based wrong is one where an agent violates the right of another by failing to conform her conduct to the standard required by the law. Strict liability in tort poses a formidable challenge to the claim that all torts are wrongs whose distinctive feature is that they violate an applicable standard ...


The Harm Principle And Free Speech, Rebecca L. Brown Sep 2016

The Harm Principle And Free Speech, Rebecca L. Brown

University of Southern California Legal Studies Working Paper Series

This article challenges the recent turn to absolutism in free speech doctrine, and the scheme of "protected" and "unprotected" speech that it enshrines. A more historically and theoretically sound approach to free speech would take into account the actual manner in which expression is alleged to cause harm. If the process of causing harm does not engage the rational processes of the audience, then the strict rule against content regulation is not appropriate. The article offers an original, revisionist perspective on the leading case on content regulation, Police Department v. Mosley, 408 U.S. 92 (1972), which was authored by ...


Finding Certainty In Cert: An Empirical Analysis Of The Factors Involved In Supreme Court Certiorari Decisions From 2001-2015, Adam Feldman, Alexander Kappner Feb 2016

Finding Certainty In Cert: An Empirical Analysis Of The Factors Involved In Supreme Court Certiorari Decisions From 2001-2015, Adam Feldman, Alexander Kappner

University of Southern California Legal Studies Working Paper Series

The Supreme Court annually grants approximately 5% of the petitions to hear cases it receives. It denies petitions from the federal government, from large corporations, and from high-profile attorneys. The decisions of which petitions for writ of certiorari the Court grants sets the Court’s agenda each term and defines the issues which the Court will engage. With such a low likelihood that the Court hears any particular case, what makes a petition more or less likely to be granted? The focus of much of the existing scholarship on certiorari deals with the theoretical underpinnings of these judicial decisions. In ...


Beyond Willful Ignorance, Alexander F. Sarch Jan 2016

Beyond Willful Ignorance, Alexander F. Sarch

University of Southern California Legal Studies Working Paper Series

The law allows willful ignorance to substitute for knowledge on the theory that these two mental states are equally culpable. This Article argues that, as a result, the law is also committed to allowing some forms of egregious non-willful ignorance—most importantly, reckless ignorance—to substitute for knowledge when the conditions of equal culpability are met. In addition to developing this theoretical argument, the Article argues that some courts already allow reckless ignorance to substitute for knowledge—namely, in cases governed by the collective knowledge doctrine. Allowing reckless ignorance to substitute for knowledge is thus not unprecedented. What’s more ...


What Diversity Contributes To Equal Opportunity, Stephen M. Rich Jul 2015

What Diversity Contributes To Equal Opportunity, Stephen M. Rich

University of Southern California Legal Studies Working Paper Series

The ideal of diversity so pervades American public life that we now speak of diversity where we once spoke of equality. This Article rejects the dominant legal conception of diversity found in equal protection jurisprudence but not the relevance of diversity to the project of equal opportunity. In Grutter v. Bollinger, the Supreme Court endorsed diversity as a compelling governmental interest capable of justifying the use of racial preferences in public university admissions. However, rather than quieting public controversies about affirmative action, the decision has been a frequent target of legal and political attack, and its narrow focus on educational ...


One Law Of Race?, Stephen M. Rich Jul 2015

One Law Of Race?, Stephen M. Rich

University of Southern California Legal Studies Working Paper Series

Is race discrimination a single social phenomenon, and, if it is, why not govern it by a single legal rule? The temptation to conform constitutional and statutory standards in race equality law is powerful and appears to have captured the imagination of the Supreme Court in several of its most recent decisions. Historically, the Court’s decisions in this area have sometimes promoted convergence between constitutional and statutory standards, often by using constitutional precedents to resolve issues of statutory interpretation. At other times, they have promoted divergence, by honoring the authority of political institutions to establish equality norms that exceed ...


Inferred Classifications, Stephen M. Rich Jul 2015

Inferred Classifications, Stephen M. Rich

University of Southern California Legal Studies Working Paper Series

This Article discusses a fundamental problem in constitutional law, namely that equal protection doctrine commands strict scrutiny of all racial classifications but does not specify what constitutes a racial classification. This omission has left many public institutions and legal scholars to assume that a racial classification must be explicit in order to receive strict scrutiny. This assumption, however, is false. The Article proposes the concept of “inferred classifications” to describe instances in which the Supreme Court has inferred racial classifications from the form and practical effect of facially neutral legislation. The assumption that racial classifications must be explicit is driven ...


"Rhetoric And Reality": Testing The Harm Of Campaign Spending, Rebecca L. Brown, Andrew D. Martin Mar 2015

"Rhetoric And Reality": Testing The Harm Of Campaign Spending, Rebecca L. Brown, Andrew D. Martin

University of Southern California Legal Studies Working Paper Series

This is an empirical piece prepared for a conference entitled Testing the Constitution, held at the University of Chicago Law School. Brown and Martin collaborated to design a survey experiment aimed at testing some of the factual claims made by the Supreme Court in Citizens United v. FEC. The paper shows that there is a demonstrable harm to the electorate's faith in democracy, and argues that these findings supply a government interest, separate from prevention of corruption, in regulating campaign spending.


What Is The Right To Privacy?, Andrei Marmor Dec 2014

What Is The Right To Privacy?, Andrei Marmor

University of Southern California Legal Studies Working Paper Series

A philosophical account of the right to privacy should explain what is the distinct interest that the right is there to protect, what it takes to secure it, and what would count as a violation of the right. In this paper I argue that the right to privacy is grounded on people’s interest in having a reasonable measure of control over ways in which they present themselves (and what is theirs) to others; I argue that in order to secure this kind of interest we need to have a reasonably secure and predictable environment about the flow of information ...


Making Democracy Safe For Justice: A Tribute To Ronald Dworkin, Rebecca L. Brown May 2014

Making Democracy Safe For Justice: A Tribute To Ronald Dworkin, Rebecca L. Brown

University of Southern California Legal Studies Working Paper Series

This tribute was delivered at a memorial at NYU Law School to honor the great Professor Ronald Dworkin. These remarks call attention to the way in which Dworkin’s work supplied a missing animating spirit to constitutional theory by redefining democracy.


Common Good And Common Ground: The Inevitability Of Fundamental Disagreement, Rebecca L. Brown May 2014

Common Good And Common Ground: The Inevitability Of Fundamental Disagreement, Rebecca L. Brown

University of Southern California Legal Studies Working Paper Series

This review of Ordered Liberty: Rights, Responsibilities, and Virtues, by James E. Fleming and Linda C. McClain, considers the possibility of reconciliation between political liberalism and its critics. The book promises such a reconciliation with a new version of liberalism they call “constitutional liberalism.” This review essay considers four different topics on which constitutional liberalism claims to find compromise and concludes that, in the end, the compromise is elusive. Ultimately, liberalism must choose because rights cannot be subject to communitarian or majoritarian approval; equality cannot yield to intolerance; and political status cannot depend on the tenets of contested moral belief ...


Varieties Of Vagueness In The Law, Andrei Marmor Jul 2013

Varieties Of Vagueness In The Law, Andrei Marmor

University of Southern California Legal Studies Working Paper Series

The main purpose of this essay is to articulate the different types of vagueness, and related linguistic indeterminacies, that we find in statutory language and to explain their different rationales. I argue that the various normative considerations involved in employing vague terms in legislation depend on the kind of vagueness in question. I show that while some cases of vagueness in law are concerned with fairly standard problems of borderline cases, other are not. I also argue that semantic vagueness can be distinguished from conversational vagueness, which we also find in law, and that vagueness in law should be clearly ...


Political Theology With A Difference, Nomi M. Stolzenberg Sep 2012

Political Theology With A Difference, Nomi M. Stolzenberg

University of Southern California Legal Studies Working Paper Series

This paper proposes for consideration a version of political theology that differs from standard accounts of the content of political theology, particularly with regard to political theology's relationship to liberalism. The account of political theology proposed here is "political theology with a difference" both in the sense that it differs from the standard account of political theology (inasmuch as rejects the view that liberalism and political theology are mutually antagonistic) and in the further sense that it is based upon a philosophical doctrine that not only accepts, but valorizes human differences. That doctrine, which stands at the core of ...


Textualism In Context, Andrei Marmor Jul 2012

Textualism In Context, Andrei Marmor

University of Southern California Legal Studies Working Paper Series

The main purpose of this essay is to show that the views about linguistic communication that make Textualism a plausible theory of what the law says, show why textualism is not nearly as helpful a theory of statutory interpretation as its proponents claim. The essay begins with a brief outline of what Textualism is, in light of its critique of Intentionalism and Purposivism; it then proceeds to explain the view of language, particularly asserted linguistic content, that is required to make sense of Textualism, and defends this view against a neo-Gricean critique; finally, the paper strives to show why those ...


Farewell To Conceptual Analysis (In Jurisprudence), Andrei Marmor Jan 2012

Farewell To Conceptual Analysis (In Jurisprudence), Andrei Marmor

University of Southern California Legal Studies Working Paper Series

I have two main purposes in this essay: First, to show that conceptual analysis is not nearly as central to legal philosophy as typically assumed. The main methodological thrust of analytical jurisprudence, and in particular of legal positivism, is reductionism, not conceptual analysis. Consequently, the main objections to legal positivism are best seen as arguing against the possibility of reduction. Second, I aim to show that the interpretivist challenges to analytical jurisprudence bark up the wrong tree in this respect, and actually fail to engage with the methodological stance they aim to replace. Along the way I offer a partial ...


War-Time: An Idea, Its History, Its Consequences, Mary L. Dudziak Jan 2012

War-Time: An Idea, Its History, Its Consequences, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

When is wartime? On the surface, it is a period of time in which a society is at war. But we now live in what President Obama has called "an age without surrender ceremonies," as the Administration announced an "end to conflict in Iraq," even though conflict on the ground is ongoing. It is no longer easy to distinguish between wartime and peacetime. In this inventive meditation on war, time, and the law, Mary Dudziak argues that wartime is not as discrete a time period as we like to think. Instead, America has been engaged in some form of ongoing ...


Truth In Law, Andrei Marmor Nov 2011

Truth In Law, Andrei Marmor

University of Southern California Legal Studies Working Paper Series

In this essay I offer a speech act analysis of truth evaluable content of legal prescriptions. The argument is based on two main frameworks: one, drawn from an analogy with truth in fiction, explains the prefixed nature of legal statements, and the second explores the propositional content of legal prescriptions as a species of exhortative speech acts. Overall, the essay suggests an interpretation of legal prescriptions that allows for the validity of standard legal syllogisms.