Law Commons^™

Foreword: From Personal Life To Private Law: The Jurisprudence Of John Gardner, Scott Hershovitz

Other Publications

John Gardner was a great philosopher. He was appointed as the Professor of Jurisprudence at Oxford when he was still quite junior in the profession. It was a big job. Ronald Dworkin held the post before Gardner, and H.L.A. Hart before him. Gardner delivered on his promise. He had wide-ranging interests. He wrote about jurisprudence, criminal law, and tort law. His pushed those fields forward—and others too. Gardner’s scholarship was incisive, creative, rigorous, generous, and witty. He had a knack for illuminating law and life too. In recent years, Gardner published two books that tackled tort law: From Personal Life …

Public Policy And The Insurability Of Cyber Risk, Asaf Lubin

Articles by Maurer Faculty

In June 2017, the food and beverage conglomerate Mondelez International became a victim of the NotPetya ransomware attack. Around 1,700 of its servers and 24,000 of the company’s laptops were suddenly and permanently unusable. Commercial supply and distribution disruptions, theft of credentials from many users, and unfulfilled customer orders soon followed, leading to losses that totaled more than $100 million. Unfortunately, Zurich, which had sold the company a property insurance policy that included a variety of coverages, informed Mondelez in 2018 that cyber coverage would be denied under the policy based on the “war exclusion clause.” This case, now pending, …

Intellectual Property Harms: A Paradigm For The Twenty-First Century, Jessica Silbey

Faculty Scholarship

This short essay is part of a larger book project that investigates how contemporary intellectual property debates, especially in the digital age, are taking place over less familiar terrain: fundamental rights and values. Its argument draws from the diverse, personal accounts of interviews from everyday creators and innovators and focuses on descriptions of harms and, as some say “abuses,” they suffer within their practicing communities. The harms are not described are the usual harms that intellectual property law is understood to prevent. Typically, intellectual property injuries are conceived in individual terms and as economic injuries. An infringer is a thief. …

Value Hypocrisy And Policy Sincerity: A Food Law Case Study, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

t is tempting to say that in 2017 there is a unique problem of hypocrisy in politics, where words and behaviors are so often in opposition. In fact, hypocrisy is nothing new. A robust legal and psychological literature on the importance of procedural justice demonstrates a longstanding concern with developing more just governing processes. One of the important features of this scholarship is that it does not focus only on the consequences of policymaking, in which behaviors, but not words, are relevant. Instead, it respects the intrinsic importance of fair process, lending credence not only to votes but also to …

Discrimination Law: The New Franken-Tort, Sandra F. Sperino

Faculty Articles and Other Publications

This article was part of the Clifford Symposium in Tort Law. The article discusses how the Supreme Court has used tort law to define certain elements of discrimination law, but has not described all of the elements of this new tort. The article is the first one to try to piece together the new "tort" created by the Supreme Court.

Through Our Glass Darkly: Does Comparative Law Counsel The Use Of Foreign Law In U.S. Constitutional Adjudication?, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

This (35 pp.) essay appears as a contribution to a law review symposium on the work of Harvard Law School professor Mary Ann Glendon in comparative law. The essay begins by asking what comparative law as a scholarly discipline might suggest about the use of foreign (or unratified or nationally "unaccepted" international law) by US courts in US constitutional adjudication. The trend seemed to be gathering steam in US courts between the early-1990s and mid-2000s, but by the late-2000s, it appeared to be stalled as a practice, notwithstanding the intense scholarly interest throughout this period.

Practical politics within the US …

Private Law In The Gaps, Jeffrey A. Pojanowski

Journal Articles

Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …

The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen

Articles

This Article starts with a puzzle: Why is the doctrinal approach to “proximate cause” so resilient despite longstanding criticism? Proximate cause is a particularly extreme example of doctrine that limps along despite near universal consensus that it cannot actually determine legal outcomes. Why doesn’t that widely recognized indeterminacy disable proximate cause as a decision-making device? To address this puzzle, I pick up a cue from the legal realists, a group of skeptical lawyers, law professors, and judges, who, in the 1920s and 1930s, compared legal doctrine to ritual magic. I take that comparison seriously, perhaps more seriously, and definitely in …

Rights-Based Theories Of Accident Law, Gregory J. Hall

All Faculty Scholarship

This article shows that extant rights-based theories of accident law contain a gaping hole. They inadequately address the following question: What justifies using community standards to assign accident costs in tort law?

In the United States, the jury determines negligence for accidental harm by asking whether the defendant met the objective reasonable person standard. However, what determines the content of the reasonable person standard is enigmatic. Some tort theorists say that the content is filled out by juries using cost benefit analysis while others say that juries apply community norms and conventions. I demonstrate that what is missing from this …

Notes On Borrowing And Convergence, Robert Tsai, Nelson Tebbe

Articles in Law Reviews & Other Academic Journals

his is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

The Dignity, Rights, And Responsibilities Of The Jury: On The Structure Of Normative Argument, Robert P. Burns

Faculty Working Papers

Many theorists follow an inevitably circular method in evaluating legal institutions and practices. "Considered judgments of justice" embedded in practices and institutions in which we have a high level of confidence can serve as partial evidence for the principles with which they are consistent, principles that can then have broader implications. Conversely, principles that we have good reason to embrace can serve as partial justification for institutions and practices with which they are consistent. This is the heart of Rawls' notion of "reflective equilibrium," where we "work at both ends" to justify institutions, practices, and principles. This method is applicable …

An Essay On Torts: States Of Argument, Marshall S. Shapo

Faculty Working Papers

This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the "states of argument" that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the tradtional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice. The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism …

The "Bad Samaritan" Paradigm, Anthony D'Amato

Faculty Working Papers

This essay will attempt to show that the disparity between the rule of law and the dictates of morality is itself a product of the paradigmatic way in which the "Bad Samaritan" cases are analyzed. If we examine the cases in an entirely different way, many of the standard problems will dissolve and new alternatives will become apparent. The essay will also show that the "Bad Samaritan" paradigm is part of a larger paradigm linking the law of torts with the criminal law, which also needs to be reexamined. Finally a recommendation for dealing with the "Bad Samaritan" problem legislatively …

Foreseeability And Copyright Incentives, Shyamkrishna Balganesh

All Faculty Scholarship

Copyright law’s principal justification today is the economic theory of creator incentives. Central to this theory is the recognition that while copyright’s exclusive rights framework provides creators with an economic incentive to create, it also entails large social costs, and that creators therefore need to be given just enough incentive to create in order to balance the system’s benefits against its costs. Yet, none of copyright’s current doctrines enable courts to circumscribe a creator’s entitlement by reference to limitations inherent in the very idea of incentives. While the common law too relies on providing actors with incentives to behave in …

Roscoe Pound, Melvin Belli, And The Personal-Injury Bar: The Tale Of An Odd Coupling, Joseph A. Page

Georgetown Law Faculty Publications and Other Works

In the fourth chapter of Patriots and Cosmopolitans: Hidden Histories of American Law, legal historian John Fabian Witt tells the story of a collaboration between storied scholar Roscoe Pound and trial virtuoso Melvin M. Belli, which he calls "among the most startling and yet unremarked-upon relationships in the annals of American law." Witt argues that it both shaped and energized the efforts of personal-injury lawyers to oppose proposals that would shift to the administrative branch of government responsibility for compensating auto-accident victims. Entitled "The King and the Dean," in reference to the media's coronation of Belli as the "King of …

Liability For Possible Wrongs: Causation, Statistical Probability And The Burden Of Proof, In Symposium, The Frontiers Of Tort Law, Richard W. Wright

All Faculty Scholarship

Courts around the world are increasingly considering whether liability should exist in various types of situations in which a plaintiff can prove that a defendant’s tortious conduct may have contributed to the plaintiff’s injury, but it is inherently impossible, given the nature of the situation, for the plaintiff to prove that the defendant’s tortious conduct actually contributed to the injury. The problematic nature of the causal issue is usually recognized when the probability of causation is not greater than 50 percent, with courts adopting different views, depending on the type of situation, on whether liability nevertheless is appropriate and, if …

Post-Realist Blues: Formalism, Instrumentalism, And The Hybrid Nature Of Common Law Jurisprudence, Marin Roger Scordato

Scholarly Articles

At the beginning of the twentieth century, it was widely believed that appellate courts determined the outcome of disputed issues of law predominately by the application of pre-existing precedent and time honored legal maxims. The primary work of the common law courts was thought to be this distinctive identification, maintenance, inductive development and case specific deductive application of the body of precedent in its jurisdiction, sometimes known as formalism.

Starting with the influence of the legal realists in the 1920s, a profound shift took place in the dominant conception of the nature of common law jurisprudence. Here, at the beginning …

The Virtues Of Uncertainty In Law: An Experimental Approach, Tom Baker, Alon Harel, Tamar Kugler

All Faculty Scholarship

Predictability in civil and criminal sanctions is generally understood as desirable. Conversely, unpredictability is condemned as a violation of the rule of law. This paper explores predictability in sanctioning from the point of view of efficiency. It is argued that, given a constant expected sanction, deterrence is increased when either the size of the sanction or the probability that it will be imposed is uncertain. This conclusion follows from earlier findings in behavioral decision research and the results of an experiment conducted specifically to examine this hypothesis. The findings suggest that, within an efficiency framework, there are virtues to uncertainty …

Method And Principle In Legal Theory, Stephen R. Perry

All Faculty Scholarship

No abstract provided.

Substantive Corrective Justice, In Symposium, Corrective Justice And Formalism, Richard W. Wright

All Faculty Scholarship

No abstract provided.

Tort Law As A Comparative Institution, Claire Oakes Finkelstein

All Faculty Scholarship

No abstract provided.

Evidence, Roslyn M. Litman

Scholarship

This article is not intended to constitute a comprehensive review of all evidence cases decided in Pennsylvania in the past ten years. The cases selected, of necessity, have been limited. They have been chosen because they affect either a field of special interest or one of special confusion. Cases dealing with applications of the parol evi­dence rule and with constitutional issues in criminal prosecutions have been omitted entirely because they are covered elsewhere in this Survey.