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Alani Golanski

Articles 1 - 9 of 9

Full-Text Articles in Law

Nonmoral Theoretical Disagreement In Law, Alani Golanski Mar 2016

Nonmoral Theoretical Disagreement In Law, Alani Golanski

Alani Golanski

I agree with Dworkin that there is widespread theoretical disagreement in law. I hope to show, however, why this disagreement should not be seen as moral in nature. Legal philosophers have nearly always viewed the existence of theoretical disagreement in law as the indicium of moral dispute. If that is so, and if such disagreement is widespread, then this would be compelling evidence of law’s incorporation of moral standards. Thus, theoretical disagreement has posed a powerful challenge to the "positivist" approach, which claims that, for the most part, legality can be determined without resort to moral criteria. This paper draws …

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Legal Theory From The Regulative Point Of View, Alani Golanski Dec 2012

Legal Theory From The Regulative Point Of View, Alani Golanski

Alani Golanski

I argue that a concept of law that assigns primacy to the regulative role fulfilled by legal systems is best suited for explaining law’s discrete practice areas.  This regulative point of view facilitates the development of a concept of law capable of cohering with theories of discrete legal areas.  This posted paper revises the originally published Cumberland Law Review version.

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A New Look At Duty In Tort Law: Rehabilitating Foreseeability, And Related Themes, Alani Golanski Mar 2012

A New Look At Duty In Tort Law: Rehabilitating Foreseeability, And Related Themes, Alani Golanski

Alani Golanski

This article addresses the subtle yet turbulent “duty wars” currently raging with respect to the conceptual nature of duty in tort law. The scholars have thus far divided principally into three camps, and the courts have increasingly been taking their cue from this scholarship and altering their previously settled notions of the duty element. The main dispute has been over the role of foreseeability in the duty analysis. This article critiques the principal approaches taken in the literature, demonstrating, for example, why the vision of duty articulated in the new Restatement (Third) of Torts and represented by one of the …

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Paradigm Shifts In Products Liability And Negligence, Alani Golanski Dec 2009

Paradigm Shifts In Products Liability And Negligence, Alani Golanski

Alani Golanski

Three interrelated paradigm shifts are currently at play within products liability law. The first results from the tort reform movement’s heated efforts at dramatically restricting compensatory rights and options. The second arises from the countervailing effort to preserve products accountability by relinquishing no-fault strict-liability theories. The article’s resulting treatment of negligence introduces the third paradigm shift, by which the elements of accident law are restated more accurately. This shift from the traditional negligence formula will hone the reader’s ability to analyze tort law agendas, and the new analysis is here applied in critiquing three major initiatives in the tort reform …

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When Sellers Of "Safe" Products Turn Ostrich In Relation To Dangerous Post-Sale Components, Alani Golanski Dec 2008

When Sellers Of "Safe" Products Turn Ostrich In Relation To Dangerous Post-Sale Components, Alani Golanski

Alani Golanski

This article tackles a products liability issue that is currently raging in litigations nationwide, especially in the asbestos context. Although tort reform attempts to preclude the seller's liability for dangerous post-sale components under the no-duty-to-rescue doctrine, that effort is misguided, and ignores legal doctrine and marketplace realities. Fairness and efficiency policy factors also warrant the imposition of failure-to-warn liability upon product sellers who implicitly or explicitly endorse (via foreseeability in a financially advantageous context, or actual inclusion of the later-replaced dangerous parts) ultrahazardous post-sale component parts.

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General Causation At A Crossroads In Toxic Tort Cases, Alani Golanski Dec 2003

General Causation At A Crossroads In Toxic Tort Cases, Alani Golanski

Alani Golanski

Traditional approaches to specific causation are not feasible in toxic tort litigations. This article explores in depth the middle path between such unworkable, traditional approaches and institutionally improbable proposals that causation simply be abolished when toxic products are at issue. The middle way relies on the new judicial acceptance of certain forms of statistical proof. Epidemiological findings, especially when conjoined with case-specific differential diagnosis testimony, support causal inferences and should be attainable in a wide variety of toxic tort cases.

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Linguistics In Law, Alani Golanski Jan 2002

Linguistics In Law, Alani Golanski

Alani Golanski

The "new textualism" is amenable to the use of linguists in legal cases. New textualists seek to interpret statutes "objectively," according to the "plain meaning" of the statutory terms; these jurists and scholars see plain-meaning analysis as linguistics, and linguistics as science. Law and linguistics pursue different ends, however, and linguists construing statutes will miss legally decisive issues. Modern linguistics theory is an area of central concern to cognitive psychologists as well as philosophers of mind and language. While not hegemonic, Chomsky's psychological program influences modern linguistics, and the linguist's approach often leads in a different direction from that taken …

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Why Legal Scholars Get Daubert Wrong: A Contextualist Explanation Of Law's Epistemology, Alani Golanski Jan 2001

Why Legal Scholars Get Daubert Wrong: A Contextualist Explanation Of Law's Epistemology, Alani Golanski

Alani Golanski

Daubert requires the court to make judgments about scientific evidence. But judges, like jurors, are lay persons in relation to such evidence. So Daubert has been criticized as requiring too much of the court, and such alternatives as blue ribbon panels have been proposed. This article shows that, notwithstanding any problems that Daubert itself might have, the Daubert scholarship is significantly hampered by the way legal scholars categorize knowledge. A "contextualist" (as opposed to "invariantist") theory of knowledge is both philosophically best, and makes sense of law's relation to science.

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Kahn's Reign And Its Metaphors For Law -- A Critique In The Philosophy Of Legal Culture, Alani Golanski Jan 2000

Kahn's Reign And Its Metaphors For Law -- A Critique In The Philosophy Of Legal Culture, Alani Golanski

Alani Golanski

This essay analyzes the three main metaphors through which Professor Paul Kahn, Yale Law, constructs both a substantive picture of law's appearance and his methodological thesis that nonlegal sources need not, and should not, be explored in explaining the rule of law. These metaphors are (1) law as language, (2) law as religion, and (3) law as "legal" artifact. This essay argues that (1) and (2) are acceptable metaphors, but that Kahn's treatment is imprecise, and the metaphors work better if handled differently. Regarding (3), the limitations Kahn imposes are untenable.

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