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Articles 1 - 12 of 12
Full-Text Articles in Law
Personal Inviolability And "Private Law", Gregory C. Keating
Personal Inviolability And "Private Law", Gregory C. Keating
Gregory C. Keating
The “idea of private law” has occupied a prominent place in tort theorizing over the past twenty years. To American ears, the idea has a libertarian ring, implying a realm of private freedom beyond the reach of public power. But the idea of “private law” pursued in recent tort theory is different. This strand of tort theory takes an essentially formal view of “private law” as a type of adjudication through which one member of civil society invokes the public power of the state to call another member of civil society to account for breach of an obligation, owed by …
Settling Through Consent Decree In Prison Reform Litigation: Exploring The Effects Of Rufo V. Inmates Of Suffolk County Jail, Gregory C. Keating
Settling Through Consent Decree In Prison Reform Litigation: Exploring The Effects Of Rufo V. Inmates Of Suffolk County Jail, Gregory C. Keating
Gregory C. Keating
No abstract provided.
Pricelessness And Life: An Essay For Guido Calabresi, Gregory C. Keating
Pricelessness And Life: An Essay For Guido Calabresi, Gregory C. Keating
Gregory C. Keating
This paper - written for a conference celebrating "The Costs of Accidents," three and half decades after its publication - pays tribute to Calabresi's remarkable exploration of the deepest, most disturbing and most difficult problem in the law of accidents. Throughout his long and distinguished career, Guido Calabresi has insisted that a tragic conflict of irreconcilable values lies at the heart of our law of accidents. We are profoundly committed both to "the ideal that life is a pearl beyond price" and to the practice of valuing people's lives in market terms - to the practice of pricing life. We …
Is Tort A Remedial Institution?, Gregory C. Keating
Is Tort A Remedial Institution?, Gregory C. Keating
Gregory C. Keating
In the past 30 years, philosophers of tort have performed invaluable work in restoring the concept of a “wrong” to prominence in tort scholarship, and in building a persuasive case that no adequate account of tort can replace the idea of a “wrong” with the idea of a “cost”. The structure of tort adjudication, which pits an injured victim against the party allegedly responsible for injuring her, is powerfully explained and justified by the thesis that the plaintiff has a claim for redress against the defendant when and because the defendant has wronged the plaintiff. The competing claim that tort …
Putting "Duty" In Its Place: A Reply To Professors Goldberg And Zipursky, Dilan Esper, Gregory C. Keating
Putting "Duty" In Its Place: A Reply To Professors Goldberg And Zipursky, Dilan Esper, Gregory C. Keating
Gregory C. Keating
Black-letter law has it that “duty”—the first element of a prima facie case of negligence in tort—is a nonissue in most cases. “Duty” fixes the legal standard applicable to the conduct in question and that standard is generally the tort obligation to exercise reasonable care for the protection of those who might foreseeably be endangered by one’s actions. Commentators from Oliver Wendell Holmes to the drafters of the pending Restatement Third of Torts have recognized a general duty not to subject others to unreasonable risk of physical harm as the very foundation of modern negligence law. From the time of …
Rawlsian Fairness And Regime Choice In The Law Of Accidents, Gregory Keating
Rawlsian Fairness And Regime Choice In The Law Of Accidents, Gregory Keating
Gregory C. Keating
Early in the 1970's George Fletcher wrote a remarkable article Fairness and Utility in Tort Theory—connecting distinctively Rawlsian ideas of fairness with reciprocity of risk imposition. Fletcher argued that nonreciprocity of risk both characterized realms of strict liability in tort and justified those realms, whereas reciprocity of risk characterized realms of tort law which were governed by negligence liability, and appropriately so. This article argues (1) against Fletcher’s identification of fairness in the choice of an accident law regime with the presence or absence of reciprocity of risk, and (2) in favor of focusing on the fair distribution of the …
Is Negligent Infliction Of Emotional Distress A Freestanding Tort?, Gregory C. Keating
Is Negligent Infliction Of Emotional Distress A Freestanding Tort?, Gregory C. Keating
Gregory C. Keating
Liability for negligent infliction of emotional distress (NIED) is often taken to be a freestanding tort, which guards our interest in emotional tranquility against careless injury. Scope of duty determinations− settling who owes a legal obligation to exercise reasonable care and to whom they owe that obligation− are paramount on this account. Gruesome accidents may traumatize hundreds and even thousands of people. Unless the duty to exercise reasonable care not to inflict emotional harm is carefully controlled, liability will be excessive. In this paper, prepared for a conference on the Restatement 3rd of Torts, I argue that courts have come …
Tort, Rawlsian Fairness And Regime Choice In The Law Of Accidents, Gregory C. Keating
Tort, Rawlsian Fairness And Regime Choice In The Law Of Accidents, Gregory C. Keating
Gregory C. Keating
No abstract provided.
Strict Liability And The Mitigation Of Moral Luck, Gregory C. Keating
Strict Liability And The Mitigation Of Moral Luck, Gregory C. Keating
Gregory C. Keating
The general problem of moral luck—that responsibility is profoundly affected by factors beyond the control of the person held responsible—has two distinct dimensions in the case of accidental injury (and no doubt in many other cases). One dimension is concerned with attribution of moral blame. Thomas Nagel explains: “If one negligently leaves the bath running with the baby in it, one will realize, as one bounds up the stairs towards the bathroom, that if the baby has drowned one has done something awful, whereas if it has not one has merely been careless.” How badly one has behaved and hence …
Abusing "Duty", Dilan Esper, Gregory C. Keating
Abusing "Duty", Dilan Esper, Gregory C. Keating
Gregory C. Keating
Black-letter law has it that “duty”—the first element of a prima facie case of negligence in tort—is a nonissue in most cases. “Duty” fixes the legal standard applicable to the conduct in question and that standard is generally the tort obligation to exercise reasonable care for the protection of those who might foreseeably be endangered by one’s actions. Commentators from Oliver Wendell Holmes to the drafters of the pending Restatement Third of Torts have recognized a general duty not to subject others to unreasonable risk of physical harm as the very foundation of modern negligence law. From the time of …
The Heroic Enterprise Of The Asbestos Cases, Gregory C. Keating
The Heroic Enterprise Of The Asbestos Cases, Gregory C. Keating
Gregory C. Keating
The asbestos crisis pushed our adjudicative institutions to the brink of failure, and exposed the extraordinary difficulty of managing mass tort litigation on a scale so vast. Even so, there is much to praise in the efforts of courts to come to grips with this, the greatest of all mass accidents. The asbestos cases are an heroic judicial effort to construct a form of enterprise liability, one tailored to the distinctive features of a mass disaster of unprecedented scope and duration. Asbestos is the greatest of modern mass accidents. It is the expression of a nightmarishly well-organized world of systematically …
Recovering Rylands (Forthcoming), Gregory C. Keating
Recovering Rylands (Forthcoming), Gregory C. Keating
Gregory C. Keating
No abstract provided.