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Full-Text Articles in Law
The Distorted Reality Of Civil Recourse Theory, Alan Calnan
The Distorted Reality Of Civil Recourse Theory, Alan Calnan
Alan Calnan
In their recent article Torts as Wrongs, Professors John C.P. Goldberg and Benjamin C. Zipursky offer their most complete and accessible explanation of the civil recourse theory (CRT) of tort law. A purely descriptive account, CRT holds that tort law is exclusively a scheme of private rights for the redress of legal wrongs and is not a pragmatic mechanism for imposing strict liability or implementing public policy. The present paper challenges this view by revealing critical errors in its perspective, methodology, and analysis. It shows that Goldberg and Zipursky do not objectively observe tort law and uncritically report what they …
The Hidden Legacy Of Palsgraf: A Survey Of Modern Duty Law, W. Jonathan Cardi
The Hidden Legacy Of Palsgraf: A Survey Of Modern Duty Law, W. Jonathan Cardi
W. Jonathan Cardi
The elements of the debate between Justices Cardozo and Andrews in Palsgraf are canonical: (1) What is the nature of duty—is it relational or act-centered?; (2) Is plaintiff-foreseeability a duty inquiry or an aspect of proximate cause?; (3) Is court or jury the proper arbiter of foreseeability? An exhaustive examination of the case law on these questions reveals a deep disconnect between what most of us learned in law school and what is playing out in modern courts. Close scrutiny of Palsgraf’s present-day incarnations also lends an invaluable birds-eye view of duty law, an area so rife with inconsistency and …
Copyright As Tort, Assaf Jacob, Avihay Dorfman
Copyright As Tort, Assaf Jacob, Avihay Dorfman
Avihay Dorfman
In these pages we seek to integrate two claims. First, we argue that, taken to their logical conclusions, the considerations that support a strict form of protection for tangible property rights do not call for a similar form of protection when applied to the case of copyright. More dramatically, these considerations demand, on pain of glaring inconsistency, a substantially weaker protection for copyright. In pursuing this claim, we show that the form of protecting property rights (including rights in tangibles) is, to an important extent, a feature of certain normal, though contingent, facts about the human world. Second, the normative …