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Fordham Law School

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Jurisprudence

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Full-Text Articles in Law

Hard Cases Make Bad Law? A Theoretical Investigation, Sepehr Shahshahani Jan 2021

Hard Cases Make Bad Law? A Theoretical Investigation, Sepehr Shahshahani

Faculty Scholarship

I use formal models to probe the aphorism that “hard cases make bad law.” The analysis illuminates important features of the common law process, especially the influence of case characteristics on lawmaking and the role of strategic litigators. When a case raises concerns that are not reflected in doctrine, the court might distort the law to avoid a hardship. Distortion is more likely when the case is important or the facts are close to the border of legality. Litigators may exploit courts’ attention to extra-doctrinal concerns by strategically selecting cases for litigation. Surprisingly, though, a strategic litigator improves lawmaking relative …


Motives And Fiduciary Loyalty, Stephen R. Galoob, Ethan J. Leib Jan 2020

Motives And Fiduciary Loyalty, Stephen R. Galoob, Ethan J. Leib

Faculty Scholarship

How, if at all, do motives matter to loyalty? We have argued that loyalty (and the duty of loyalty in fiduciary law) has a cognitive dimension. This kind of “cognitivist” account invites the counterargument that, because most commercial fiduciary relationships involve financial considerations, purity of motive cannot be central to loyalty in the fiduciary context. We contend that this counterargument depends on a flawed understanding of the significance of motive to loyalty. We defend a view of the importance of motivation to loyalty that we call the compatibility account. On this view, A acts loyally toward B only if …