Faculty Bibliography

This Article sketches two ways in which Judge Weinstein’s judicial performance raises issues of responsibility. First, it considers how he has deployed responsibility concepts that are central to tort law. Unsurprisingly, it concludes that, in his efforts to do “equity” through mass tort litigation, he has stretched these concepts quite far. This conclusion raises a second set of questions about responsibility—namely, questions about the role responsibilities of federal district court judges. As to these, the Article contends that Judge Weinstein’s tort decisions are consistent with a familiar and plausible account of judicial decision-making. It also notes ways in which he has been especially responsible in his handling of claims and claimants.

This article addresses Frances Kamm's discussion, in Ethics for Enemies, of how intentions should figure in determining whether a nation's act of war is morally permissible. The authors, experts in law rather than moral philosophy, seek to show how certain facets of domestic and international law might pose challenges to Kamm’s argument. They first consider how domestic law addresses individual behavioral analogs to the kind of state behavior with which Kamm is concerned. They then turn to state behavior and the law of war, addressing how the legality of conduct indicates the conduct's moral permissibility.

This Article examines the nature, origin, and policy soundness of the tort of interference with inheritance. We argue that the tort should be repudiated because it is conceptually and practically unsound. Endorsed by the Second Restatement of Torts and recognized by the U.S. Supreme Court in a recent decision, the tort has been adopted by courts in nearly half the states. But it is deeply problematic from the perspectives of both inheritance law and tort law. It undermines the core principle of freedom of disposition that undergirds American inheritance law. It invites circumvention of principled policies encoded in the specialized rules of procedure applicable in inheritance disputes. In many cases, it has displaced venerable and better-fitting causes of action for equitable relief. It has a derivative structure that violates the settled principle that torts identify and vindicate rights personal to the plaintiff. We conclude that the emergence of the interference-with-inheritance tort is symptomatic of two related and unhealthy tendencies in modern legal thought: the forgetting of restitution and equitable remedies, and the treatment of tort as an unstructured delegation of power to courts to impose liability whenever doing so promises to deter antisocial conduct or compensate victims of such conduct.

This contribution to a festschrift honoring Professor Robert Rabin examines overlap and divergence between his approach to Torts and our own civil recourse theory. We first flesh out Rabin’s approach by identifying three antinomies that serve as organizing themes in his work – individualized v. bureaucratic compensation; the fault principle v. enterprise liability; and Realism v. Formalism. We then provide an in-depth analysis of Seffert v. Los Angeles Transit Lines, a decision that Rabin and his casebook co-author Marc Franklin helped make famous among torts scholars. Seffert illustrates both the power and the limitations of law-and-society methodology as applied to tort law. It also demonstrates the capacity of civil recourse theory to capture dimensions of tort law that are obscured by other approaches, and to elucidate contemporary issues in tort reform, such as the propriety of limits on pain and suffering damages.

Contract as Promise, Charles Fried’s modern classic, famously argued that contract law stands apart from tort law because it is grounded on the moral principle that promises must be kept. In this contribution to a symposium marking the 30th anniversary of the book’s publication, we argue that Fried’s argument is impaired by an unresolved tension between its libertarian and its moralistic aspects. Insofar as he emphasizes the voluntaristic nature of promissory obligations, Fried succeeds in generating a sharp distinction between contract and tort. And yet, by doing so, he undermines the notion that contract law is grounded in the moral principle that a promise must be kept. This tension, we argue, is best appreciated by considering a special kind of agreement, namely, one in which the parties agree that their agreement shall be morally binding only, not legally binding. The voluntarist side of Fried’s argument suggests that courts should honor the term that renders the agreement legally unenforceable. Yet the moralist side of Fried’s argument suggests that courts should ignore that aspect of the agreement, since otherwise contract law would not be upholding the moral obligations that attend the promises in the agreement. Having offered this critique, we conclude on a more constructive note. For Fried was quite right to perceive important links between contract and promise; links that had been missed or downplayed by the death-of-contract theorists to whom he was responding. Contract may not be grounded in the morality of promising, as Fried maintained, but contracts routinely incorporate promissory morality, a social fact reflected in contract doctrine. Contractual obligations are distinct from tort obligations because the former, like promissory obligations, are defined by agreement. Moreover, contracts tend to create genuine obligations of the sort incurred when promises are made, as opposed to merely creating options. Finally, contractual obligations, like promissory obligations, carry with them a modest internal morality — the morality of good faith — and thus contractual arrangements ordinarily should be interpreted in light of that morality. For helping to articulate these and other connections between contracting and promising, Contract as Promise deserves its status as a classic in contract theory.

t is not difficult to come up with a rough definition of private law. Private law defines the rights and duties of individuals and private entities as they relate to one another. Yet, whereas scholars in commonwealth jurisdictions generally are comfortable invoking this category, U.S. legal academics are not. The idea that “all law is public law” is no less taken for granted than the idea that “we are all realists now.” This essay, written as the Introduction to a 2012 Harvard Law Review symposium, traces academic skepticism about private law to the dominance in the Twentieth Century of a particular species of pragmatism, which it labels “brass tacks pragmatism.” The essay then identifies an alternative but equally pragmatic approach to law — “inclusive pragmatism” — that permits less skeptical approaches. Finally, it outlines the elements of an emerging body of private law scholarship that is new precisely in its rejection of skepticism.

An adequate understanding of tort law requires distinguishing four senses in which “rights” figure in tort. First and most obviously, tort law imposes duties on actors to refrain from injuring others that are correlative to rights not to be injured in the ways proscribed by tort law. Second, tort law confers on one who suffers a violation of the right of non-injury a right of action, i.e., a legal power to hold the tortfeasor liable. Third, the legal power conferred on tort victims is grounded in a duty owed by the state to its citizens and their corresponding right to an avenue of civil recourse against those who have wronged them. Finally, the victim’s right against the state to law for the recourse of wrongs derives in part from the natural right – or, more precisely, the natural privilege – of individuals to make certain demands of those who have wronged them. By distinguishing among the kinds of rights involved in tort law, and explaining how they connect to one another, civil recourse theory explains more satisfactorily than other theories the particular sense in which tort is a law of rights and responsibilities.

This essay responds to the extensive and thoughtful commentary on civil recourse theory provided by Curtis Bridgeman, Julian and Stephen Darwall, John Gardner, Andrew Gold, Scott Hershovitz, Gabe Mendlow, Nathan Oman, Arthur Ripstein, Anthony Sebok, Emily Sherwin, Jason Solomon, and Ernest Weinrib, all of whom participated in a 2011 symposium at Florida State University School of Law that was devoted to the subject. In it, we defend civil recourse theory against corrective justice theory and (following our own, independent contributions to the symposium) further develop our critiques of that theory. Against methodological criticisms, we maintain that civil recourse theory is an interpretive theory that has both explanatory and normative power. Finally, we briefly tease out some of the implications of civil recourse theory for private law beyond torts (contract law, in particular), and for the philosophical analysis of concepts such as accountability and responsibility.

A concise, highly accessible guide to exam success.

In his influential History of American Law, Lawrence Friedman suggests that tort law was “totally insignificant” prior to the late Nineteenth Century. Implicit in this assessment is a judgment that a body of law is significant only insofar is it addresses a large-scale social problem as such. This criterion stacks the deck against tort law, which is not law of this kind. Rather, it is a law of civil recourse. In fulfillment of a governmental responsibility to its citizens, tort defines a certain kind of wrong and empowers victims of this kind of wrong to obtain redress from wrongdoers. Written for a 2011 symposium held at Florida State University, this essay melds the insights of civil recourse theory with recent historical scholarship to demonstrate that tort law was central to American legal practice and legal thought long before the Industrial Revolution. In fact, the tort notion of civil recourse set the terms on which this nation was founded. Quite self-consciously, Jefferson cast the Declaration of Independence in the language of civil recourse; the Declaration is our founding lawsuit. The inclusion of the Alien Tort Statute in the Judiciary Act of 1789 and the emergence of the nineteenth-century congressional practice of indemnifying officials for their tort liabilities further demonstrate our early embrace of the core tort notion that government bears a responsibility to provide citizens with law for the recourse of wrongs.

Report Prepared for Gulf Coast Claims Facility

This paper, written for a symposium on Ronald Dworkin’s Justice for Hedgehogs, comments on that book’s attempt to ground liberal egalitarian political principles in the idea that each person bears a responsibility to live well. Taking at face value the book’s claim that living well is a genuine obligation, it argues that this obligation is – to borrow Kent Greenawalt’s usage – too rich and too thin. It is too rich because it entails the condemnation of many ordinary lives as failures and is in this sense illiberal and inegalitarian. It is too thin because its emphasis on the ethical responsibility of individuals to live well seems to entail an impoverished account of the moral duties one owes to others. These criticisms notwithstanding, Hedgehogs is to be credited for inviting liberal egalitarians to develop a distinctive account of ethical and moral responsibility that is responsive to contemporary conservative claims that liberals do not take responsibility seriously.

In their article “The Uneasy Case for Product Liability,” Professors Polinsky and Shavell assert the extraordinary claim that there should be no tort liability - none at all - for injuries caused by widely-sold products. In particular, they claim to have found convincing evidence that the threat of tort liability creates no additional incentives to safety beyond those already provided by regulatory agencies and market forces, and that tort compensation adds little or no benefit to injury victims beyond the compensation already provided by various forms of insurance. In this response, we explain that, even on its own narrow terms, “Uneasy,” comes nowhere near to demonstrating what it purports to demonstrate. We also identify various “benefits” provided by tort liability for product-related injuries that Polinsky and Shavell entirely fail to consider. In fact, the case for some form of products liability - whether fault-based or defect-based - is really quite easy.

Torts--personal injury law--is a fundamental yet controversial part of our legal system. The Oxford Introductions to U.S. Law: Torts provides a clear and comprehensive account of what tort law is, how it works, what it stands to accomplish, and why it is now much-disputed. Goldberg and Zipursky--two of the world's most prominent tort scholars--carefully analyze leading judicial decisions and prominent tort-related legislation, and place each event into its proper context. Topics covered include products liability, negligence, medical malpractice, intentional torts, defamation and privacy torts, punitive damages, and tort reform.

Torts scholars hold different views on why tort law shifts costs from plaintiffs to defendants. Some invoke notions of justice, some efficiency, and some compensation. Nearly all seem to agree, however, that tort law is about the allocation of losses. This Article challenges the widespread embrace of loss-based accounts as fundamentally misguided. It is wrongs not losses that lie at the foundation of tort law. Tort suits are about affording plaintiffs an avenue of civil recourse against those who have wronged them. Although torts were once routinely understood as wrongs, since Holmes’s time, tort scholars have tended to suppose that the concept of a wrong is either too moralistic to explain the terms on which liability is imposed or so capacious as to be vacuous. We demonstrate that torts can be understood as a special kind of wrong without draining the content from the concept of a wrong. Specifically, every tort is a legal, relational, civil, and injury-inclusive wrong. In turn, tort law provides victims of such wrongs with a power to obtain recourse against those who have wronged them. A view of torts as wrongs is not only conceptually available but interpretively superior to loss-based views. Indeed, the latter prove to be incapable of accounting for basic features of tort law, including: claims that are viable without proof of loss; claims that are not viable even though an actor has foreseeably caused a victim to suffer a loss; suits giving rise to remedies that do not involve the shifting of a loss; suits in which recovery turns on whether a certain kind of loss is parasitic on a predicate injury; and suits in which recovery is denied, or defenses rendered inapplicable, because there is a heightened or attenuated connection between the agency of the defendant and the plaintiff’s injury. In contrast to loss-based theories, a wrongs-based theory can easily account for all of these aspects of basic tort doctrine. Perhaps the greatest challenge to wrongs-based theories lies in explaining what value there is, apart from loss-shifting, in having tort law. Our answer is that tort law is law for the recourse of wrongs. Hand-in-hand with their articulation of legal wrongs, courts provide victims of such wrongs with an avenue of civil recourse against their wrongdoers. This is what tort law does. It makes real the principle that for every right there is a remedy.

Goldberg praises Meir Dan-Cohen's creative thinking about state wrongdoing but argues that it is ultimately unclear how a nation gets relieved of responsibility for its past harms. Equally unclear is why as a normative matter nations should be permitted to obtain temporal shifts. Dyadic conflicts that redefine the wrongdoer might be easier to envision because the victim is empowered to redraw the boundary of the wrongdoer. When a nation commits wrong, the justification for redrawing its boundaries often must come from somewhere other than a single victim's forgiveness.

Judges have long struggled to articulate rules and principles governing the responsibility in tort of a remote actor whose wrong consists of setting the stage for a second wrongdoer who inflicts injury on a victim. The problem is found in a wide variety of scenarios ranging from drivers who leave keys in cars that are stolen, to social hosts whose intoxicated guests drive home, to gun manufacturers who market in ways that arguably render their guns more available for criminal misuse. Building on Robert Rabin’s idea of “enabling torts,” the Restatement (Third) of Torts: Liability for Physical and Emotional Harm adopts an aggressive strategy for dealing with this problem: it denies that there really is a problem. Claims against remote actors, it says, require no different treatment than claims against those who cause injury without intervening wrongdoing. In this contribution to a symposium on the Restatement’s Physical and Emotional Harm provisions, we demonstrate that the Reporters’ proposed approach runs afoul of numerous well-established doctrines that limit remote-actor liability while unjustifiably glossing over the actual grounds on which courts allow for the imposition of liability on remote actors. We then lay out an alternative framework for assessing remote actor liability that is truer to doctrine, more workable for judges, and more in keeping with the nature of tort as a law of wrongs and recourse.

John Kenneth Galbraith coined the phrase "the conventional wisdom" to refer to a collection of ideas that members of a group find acceptable. Acceptability, he observed, rests on a variety of considerations other than veracity, which means conventional wisdom can be wrong. Sometimes it is dead wrong. Other times it blurs truth and falsity. In the latter case, it might be said to contain half-truths. Because professors are in the business of critical inquiry, one might think that they are less reliant on "mere" conventional wisdom, but this supposition is false. Conventional wisdom plays as much of a role in academia as in other walks of life. The concern of this Article, based on the 2007 Valparaiso University Monsanto Lecture, is to explore conventional wisdom among torts professors, and perhaps law professors more generally. Specifically, it identifies ten half-truths embedded in standard academic depictions of tort. Because each distorts as much as or more than it enlightens, each must be discarded. The point of this exercise is conceptual and pragmatic. The immediate goal is to clarify; the further hope is that clarification might lead to better judgments about how to adjudicate tort cases, how to undertake legislative reform of tort law, and how to teach torts.

Jason Solomon’s very interesting Article Judging Plaintiffs argues that neither efficient-deterrence theories nor corrective justice theories adequately explain the existence of rules that bar or limit recovery by a tort victim on the ground that she failed to take certain pre-tort steps to protect herself from harm, or failed to take certain post-tort steps in response to the harm. The vitality of these “judging plaintiffs” doctrines, he maintains, attests to the superiority of an alternative theory of tort known as civil recourse theory. According to Solomon, recourse theory treats tort law as one component of a liberal political order and thus explains these doctrines in terms of a liberal principle calling for state nonintervention where it was or is unnecessary. In this Response, I situate Judging Plaintiffs within current tort theory debates, describe briefly its major claims, and discuss some of the doctrinal and theoretical strengths and weaknesses of the position it stakes out.

Tort liability often turns to a substantial degree on an actor's good or bad luck. For example, a driver may be lucky to be more skilled than average, or unlucky to be less. Alternatively, she may be lucky to avoid hitting a pedestrian, or unlucky to hit him, or very unlucky to hit a person with an 'eggshell skull.' Whether a person's conduct falls below the relevant standard of conduct, whether it causes injury, and how much liability results - these matters determine whether someone is a tortfeasor and, if so, how much she will have to pay in damages. And yet each of these factors lies outside of her control. Because tort liability is sensitive to luck in these ways, scholars such as Christopher Schroeder and Jeremy Waldron have condemned tort law as morally arbitrary. Others, such as Justice Holmes and Judge Posner, have seized on tort law's luck-sensitivity to argue that tort - which seems on its face to be a law of wrongs - really has nothing to do with wrongs. Assessments of conduct as right and wrong, they suppose, cannot possibly attribute so much significance to dumb luck. In this Article we are argue that the role of luck in torts does not undermine the case for understanding tort as a law of wrongs, nor does it make the case for dismissing tort law as morally arbitrary. Drawing upon the canonical articles on "moral luck" by Bernard Williams and Thomas Nagel, we argue that is false to suppose that an actor cannot be held responsible for having committed a wrong unless all the relevant features of the situation in which she acted were in principle subject to her control. The Article proceeds by distinguishing and explaining two aspects of tort law's luck-sensitivity: (1) luck regarding whether one's tortious conduct causes damage, and, if so, how much ("causal luck"); and (2) luck regarding whether one's efforts to comply with tort law's objective standards are successful ("compliance luck"). Causal luck, we argue, does not introduce objectionable arbitrariness into tort law. On the contrary, it is a natural and necessary feature of a body of law that is concerned to permit those who have been wronged to redress the wrongs done to them. As to the problem of compliance luck, we explain why it is sensible for courts and legislatures to fashion tort norms of conduct with external measures of compliance, and why such norms can properly count as norms that define "wrongs." We conclude by suggesting that careful attention to the particular senses in which torts are wrongs not only entails the rejection of familiar critiques of tort, but also sheds light on values that tort law can serve within in our legal system, as well as the content and operation of legal and extra-legal notions of wrongdoing and responsibility.

This Essay, part of a Fordham Law Review symposium on the "internal point of view" in law and ethics, explores the intersection of jurisprudence and tort theory. In American legal thought, these two subjects were indelibly linked in the work of Oliver Wendell Holmes, Jr. In particular, Holmes's claim that legal duties are just predictions of judicially-imposed sanctions went hand in hand in with his understanding of tort as a law of indemnity or loss-shifting. As it turns out, these two core features of Holmes's thought have suffered radically different fates. More than a century after the publication of The Common Law, Holmesian-inspired thinking still dominates academic tort theory. Yet in modern jurisprudence, H.L.A. Hart is widely credited with having demolished the prediction-of-sanction account of duty. Conceding that Holmes's analysis was well-motivated in its attempt to distinguish legal from moral duties, Hart nonetheless demonstrated that the prediction theory errs in divorcing the concept of a duty from notions of normativity or "oughtness." In place of an emphasis on sanctions, Hart located the distinctiveness of legal duties in their being grounded in legal rules, and the observation that citizens who accept legal rules feel a special sort of normative pull to comply with those rules. We argue that it is time for tort theory to catch up with analytic jurisprudence. Tort law ought to be understood as a law of genuine legal duties (guidance rules), rather than predictions about sanctions (liability rules). In developing this claim, we rebut several prominent contemporary arguments meant to bolster the case for treating tort law as a collection of liability rules.

From 1950 to 1980 the California Supreme Court set as one of its main tasks the project of modernizing negligence law. This program had two main facets. With respect to substantive doctrine, the court sought to purge what it regarded as vestiges of politically regressive common law, particularly limited-duty or “no duty” rules that governed premises liability claims, nonphysical harm claims, and claims alleging nonfeasance. In terms of method, the court adopted and advocated an antiformalist, reductively instrumentalist approach to judicial decisionmaking. These efforts were thought to be complementary. The view was that nineteenth century negligence doctrine, including duty doctrines, as well as the defenses of assumption of risk and contributory negligence, systematically accorded undue protection to landowners and firms, either out of medieval notions of privilege (in the case of the former) or a pro-entrepreneur, every-man-for-himself ideology (in the case of the latter). Seizing on these doctrines, late nineteenth century judges had been all too prone to issue matter-of-law rulings that, for a given class of negligence claims, either assigned responsibility for victims’ injuries to the fault or choices of victims, or wrote them off as harms not traceable to anyone’s wrong. Antiformalism permitted judges to undermine this deep bias in the law by redefining the question being posed to judges in negligence cases. Thus, nominally legal questions that seemed rather obviously to raise issues of responsibility – questions of duty, fault, assumption of risk, etc. – were “revealed” instead to be open-ended policy questions about appropriate levels of liability: whether it would serve the cause of justice or the common good to leave it open to juries to award damages in the class of cases represented by a given case.

To prevail on a claim of common law fraud, the plaintiff must prove reliance on the defendant's misrepresentation. This requirement is puzzling, given that, under many modern formulations of the tort, the plaintiff must also prove that the misrepresentation was a factual and proximate cause of the plaintiff's detriment. One standard view of reliance emphasizes its role as the mechanism by which defendant's misrepresentation generates harm to the plaintiff. But, cast as such, it seems redundant with factual causation. Another way reliance is understood is as setting a practical limit on the amount of liability that a misrepresentation can generate. So regarded, it seems redundant with proximate cause. In this Article, we explain why reliance forms a distinct element of fraud. Conceptually, we argue, the wrong of fraud is not an interference with the victim's interest in avoiding certain types of harm, such as economic loss, but instead an interference with her interest in being able to make certain kinds of decisions free of misinformation generated by others. Thus, a knowing misrepresentation that foreseeably causes harm to another does not defraud that other unless and until she is induced by that misrepresentation to make a decision she would not have otherwise made. Structurally, we argue that the requirement of reliance is linked to a more general feature of tort law, namely, the relational structure of tort duties. To commit a tort is to breach a duty that is owed by an actor to a class of potential victims. Therefore, to prevail, a tort plaintiff must establish not merely that wrongful conduct has caused harm to her, but that the conduct was wrongful as to a person in her position. When it comes to fraud, plaintiff's reliance is essential to establishing that the defendant's conduct was wrongful as to her, and hence to establishing her right to recover. Having explained the place of reliance within fraud, we next explain why reliance need not be central to other wrongs that bear some resemblance to fraud, including, for example, private enforcement actions brought under consumer protection statutes. Likewise, we demonstrate that some claimants who have been injured by misrepresentations without relying on them will have valid claims for other torts, such as negligence and tortious interference with contract. The take-away point is this: An understanding of why reliance functions (or doesn't function) as a component of a legal wrong that involves misrepresentation must be sensitive to the institutional source of the legal prohibition that defines the wrong and, relatedly, the interests that are meant to be served by that prohibition.

This article argues against the now-conventional idea that the remedial concept of make-whole compensation - understood to refer to a damages payment that corresponds to the losses a tort victim has suffered - is somehow an essential feature of substantive tort law. The article proceeds mainly by reviewing historical materials, including judicial decisions and treatises. These suggest that the prevailing notion of tort damages was until the late Nineteenth Century one of "fair" rather than "full" compensation. They also suggest that the modern tendency to equate tort with the idea of making whole rests on a subtle but critical re-characterization of the concept of injury, which once predominantly referred to a doing - a wronging of the victim by the tortfeasor - but now predominantly refers to an outcome - a loss suffered by the victim. Appreciation of these contrasts, I argue, sheds light on various contemporary debates, including those concerning the propriety and purposes of punitive damages. It also helps us to see that the tendency of modern academics, starting with Holmes, to define tort in terms of a notion of indemnification or restoration is in fact an attempt to impose a particular and controversial theory of tort onto tort doctrine and practices. Finally, I argue that a recovery of the traditional division between substantive tort law and the law of remedies, as well as an appreciation of the fair compensation conception of tort damages, will help academics grasp more clearly what tort law is and what sort of work it is well-suited and poorly-suited to do within our legal system.

This Essay explains why lawyers, policy-makers and scholars interested in medical malpractice reform and tort reform more generally must attend to tort theory. Theory does not provide answers to policy questions. Rather, it frames and guides analysis. The Essay uses two examples to make its point. The first concerns the phenomenon of "underlitigation," which is typically treated by commentators as a symptom of tort law's deficiencies as a scheme for deterring undesirable behavior and/or compensating injury victims. This evaluation presupposes, of course, that tort law is properly theorized as a scheme for deterring and/or compensating. An alternative and more satisfactory conception of tort treats it as a law that empowers victims of wrongs to respond to those wrongs by seeking redress from their wrongdoers. Given this alternative conception, we will want to know much more about why malpractice victims tend not to sue. For if they are knowingly and voluntary choosing not to pursue claims that the law has made available to them, then, on a wrongs-and-redress theory, there is nothing at all wrong with the tort system. The second example concerns the constitutionality of reform measures that cut back on malpractice liability in the name of making medical services more readily available or cheaper. If tort law is conceived as public regulation of bad medical practices - i.e., enforcement actions brought by plaintiffs playing the role of private attorneys general - then courts probably should assess the constitutionality of malpractice reform measures under toothless rational basis analysis. If, by contrast, tort is understood as a law for the redress of wrongs, courts will be entitled to deploy a more robust form of judicial review.

By meditating on displays of cunning in literature, history, and current events, Don Herzog in his new book isolates and probes difficult puzzles concerning how to understand and evaluate human conduct. The point of the exercise is not to offer a system or framework for resolving these puzzles. Quite the opposite, Cunning aims to discomfit its academic audience in two ways. First, it sets out to show that some of the central dichotomies of modem thought-those between means and ends, reason and desire, self-interest and morality, fact and value, virtue and vice, knowledge and politics, authenticity and artifice, and appearance and reality-tend not to function as useful analytic constructs, but instead operate as blinders that prevent us from accurately grasping the wellsprings, stratagems, and character of human action. Second, it asks us to confront related and daunting questions of what and whom one can justifiably believe, and how one ought to behave in a world that, at every turn, seems to invite and reward artifice and deception. In addressing these topics, Herzog eschews road maps and linear exposition for casuistry and jazzy riffs. The result might profitably be described as Wonka for professors-a fantastic, vertiginous, somewhat menacing tour of a rogue's gallery, led by a guide with roguish sensibilities of his own. Painstakingly crafted, darkly witty, honestly observed, and hyper-literate, the book delivers on its promise to unsettle. It also demonstrates the edifying power of a style of analysis that is historical, philosophical, humane, and resolutely anti-reductionist but not ethereal, arcane, grandiose, or softminded. In short, Cunning's mind-bending inquiry teaches us as much about the possibilities for humanism as it does about humans.

Although published in 1970, The Costs of Accidents was written in the 1960s. In its boldness, its brilliance, and its progressive aspirations, the book is emblematic of the great society movement out of which it developed. Unimpressed with the legal and scholarly status quo, Calabresi set out to reinvent "accident law" in a manner that would best realize the set of values we care about most: minimizing accident costs within the limits set by justice. As confident as he was in his own framework, so was he critical of the value of the fault system which governed much of accident law then, and still does today. The bottom line is that the fault system is ill-suited to reducing primary accident costs. And, he argues, it is not even well suited to doing justice, so there is nothing to justify its ineptitude at cost reduction. We respond to Calabresi's critique both within his framework of primary cost reduction, and more broadly, and we articulate both responses in terms of social norms of responsibility. As a means of primary cost reduction, we argue, the internalization of social norms of safe conduct is critical. These norms are sustained, in part, by their entrenchment within a legal system that links liability to duties and duties with norms of responsibility. Moreover, the creation of "loci of responsibility", the articulation of obligations, and the provision of private individuals with an avenue of redress against one another are valuable aspects of the fault system even apart from their connection with primary cost reduction. The Costs of Accidents, by looking only at cost reduction and justice, entirely overlooks a range of values enjoyed by the fault system. In the inspiring enthusiasm to improve human welfare across the board, thinkers of the 1960s risked rendering "responsibility" a casualty of the Great Society. In following those thinkers, we must understand notions of responsibility as a friend, not a foe, of social improvement.

The last two decades have witnessed the enactment of an array of defendant-friendly tort reforms, in turn prompting numerous constitutional challenges to them. Some state courts have been receptive to these challenges, but the likely prevailing view among them, and certainly the predominant view in the federal courts and the legal academy, is that such challenges amount to attempts to resurrect Lochner's misguided constitutionalization of mere common law. According to this view, modern tort reform measures are a textbook example of the sort of social and economic legislation to which highly deferential rational basis review ought to apply. This Article takes a fresh look at the issue of constitutional limits on tort reform. It argues that, as a matter of history, text, structure, and normative theory, the Fourteenth Amendment confers on individuals a "structural due process" right to a body of law that empowers them to seek redress against those who have committed legal wrongs against them. Corresponding to this right is a prima facie affirmative obligation on states to provide a law of redress. Recognition of this right and duty in turn warrants judicial review of defendant-friendly tort reforms that is more searching than rational basis analysis, and more sensitive to the underlying tort claim and the type of reform at issue, yet still leaves ample room for states to engage in responsible law reform. One broader ambition of this Article is to recover an intellectual tradition that views public and private law holistically - as integrated components of our constitutional frame of government - while also demonstrating that this way of thinking is not bound up with commitments to laissez faire, formalism, or judicial imperialism. It also outlines a political theory, inspired by Locke and Blackstone, which identifies the special characteristics and functions of a law for the redress of private wrongs, and thereby helps to explain why tort law has enjoyed, and perhaps should continue to enjoy, a central place within our legal system.

Reproduced herein with learned commentary is a report from the first Student-Faculty Relations Committee ever to convene in a law school. That Committee was formed in the winter of 1882 by Dean Langdell of the Harvard Law School. Outraged at the incomprehensible instruction of a new faculty member (one Professor Holmes), dozens of Harvard 1Ls petitioned for a tuition refund or, in the alternative, admission to Yale. The students' threats were dropped when Langdell promised to "arrange something else" for Holmes - a judgeship, as it turns out - and after the Committee produced the subsequently ratified Bill of Rights. Dean Langdell's endorsement of the Bill of Rights demonstrates that he was interested not only in constructing arid legal taxonomies, but also in the education of law students. Here the modern reader must resist presentism. Strange as it may now seem, both of these objectives were at the time treated as worthy goals. Langdell's purpose is amply reflected in various inter-office memoranda that were later published as the Formalist Papers, particularly No. 10 (concerning the potential of self-interested faculties to dominate law school decision-making at student expense). Needless to say, the purpose of the modern law school is to oversell its reputation. Still, despite the passage of time and this shift in orientation, the Law Student's Bill of Rights speaks directly to our contemporary predicament.

This essay argues in favor of understanding tort law as a law of private redress, rather than public regulatory law. Part I uses the U.S. Supreme Court's 2003 decision on punitive damages in State Farm Mut. Ins. Co. v. Campbell to demonstrate some of the weaknesses of public law conceptions of tort, and some of the strengths of a private law conception. Part II maintains that a private law model need not be associated with formalist reasoning, an elevation of common law over statute, or political conservatism.

Roundtable Discussion Held at the Brooklyn Law School on November 9, 2001 to honor Judge Weinstein.

In 1964, Justice Byron White joined the majority opinion in New York Times v. Sullivan. Yet, within ten years, he was angrily dissenting from post-Sullivan decisions, and within twenty years he was advocating the adoption of an entirely different approach to setting constitutional limitations on defamation liability. Standard analyses suggest that this record reveals both inconsistency and growing conservatism. I maintain instead that White held to a consistently narrow reading of Sullivan, one which recognized a "conditional privilege" to injure certain persons by means of false statements innocently or carelessly published. By contrast, the shifting coalitions of Justices who formed the majorities in post-Sullivan decisions were, for various reasons, being slowly pulled toward the idea that Sullivan had implicitly held that government altogether lacks the power to attach liability to the publication of statements on matters of public concern, even when they are published for the purpose of injuring another. In the course of establishing these claims about Justice White's defamation jurisprudence, this comment also seeks to demonstrate a broader point, namely, that Justice White has been mislabeled by critics and admirers as a "quintessential" New Deal Liberal. The dominant strain of New Deal Liberalism was Benthamite in spirit. It embraced legislation and regulation - public law - as the superior, progressive alternative to hidebound common law. Justice White is an interesting figure in the intellectual history of Twentieth-Century law in part because he was one of the rare New Dealers who appreciated the importance of common law. In his view, the Court's abandonment of Lochner-ism and the idea of law as a brooding omnipresence simply did not entail a rejection of the common law as an important means for vindicating individual rights. Thus, his concern that the Court not expand Sullivan turns out to have been motivated by an unfashionable yet coherent conception of our constitutional system in which the private law of tort, property and contract has an important role to play even after the rise of the administrative state.

In commenting on an Article by Professor Stephen Perry, this piece first sets out to clarify the concepts of "harm" and "injury" as used in tort law. Specifically, it suggests that harm should be understood as a special instance of injury, to be contrasted with other forms of injury, including rights-violations and lost expectancies. In its second part, the paper offers a novel analysis of the proximate cause limitation on tort liability. Rejecting standard views that proximate cause serves as a floodgate to prevent "excessive" litigation or liability, I argue that the doctrine instead specifies a requirement of "wronging": In negligence law, it is only if an actor's carelessness causes harm in a "natural" sequence that the victim is "entitled" to claim that she has been mistreated by the defendant. By preventing the attribution of responsibility for certain fortuitously-caused harms, proximate cause doctrine thus limits liability to instances in which there is not merely wrongful conduct on the part of the tortfeasor, but wrongful conduct towards - i.e., a wronging of - the victim. I suggest that this understanding of proximate cause fits well within a "civil recourse" theory of tort law, and helps explain away various puzzles, such as the thin-skull rule, and the greater willingness of intentional tort doctrine to impose liability notwithstanding fortuitous causation.

This article analyzes twentieth-century tort scholarship in terms of a five-sided debate between compensation-deterrence theory, enterprise liability theory, economic deterrence theory, social justice theory, and individual justice theory. It surveys, parses, and analyzes the central interpretive and prescriptive claims made by each of these theories, exploring and exposing to criticism their underlying assumptions and commitments. The article concludes with a plea for greater theoretical self-consciousness among tort scholars, and for a shift in focus away from the strict-liability v. negligence debate.

Loss-of-a-chance doctrine has been developed primarily in the context of medical malpractice law. When employed, it eases the plaintiff's burden of proving causation. Instead of having to prove that the doctor's neglect of duty more likely than not was a but-for cause of the plaintiff's injury, the loss-of-a-chance plaintiff only has to prove that the malpractice made it somewhat more likely that she would suffer an injury. Several prominent commentators have recently called for application of loss-of-a-chance to legal malpractice, primarily out of concern over the difficulty a legal malpractice plaintiff faces in proving that, but for her lawyer's carelessness, she probably would have prevailed in the matter in which she was being represented. These remarks attempt to explain why, despite the intuitive appeal of the doctrine on grounds of both fairness and deterrence, courts ought to be wary about transplanting it into the law of legal malpractice.

In The Idea of Private Law, Ernest Weinrib argues that tort law is "just like love." By this, he means that tort law is best understood formally, for what it is, rather than functionally, for what it does. Formalist theory is presented as a stark alternative to the instrumentalist theories that have dominated modern American torts scholarship. This essay argues that Weinrib's approach is, in one important and revealing respect, of a piece with those that he criticizes. Specifically, by conveying an attitude of fatalistic acceptance toward tort law, it partakes of the generally unsympathetic disposition maintained by the vast majority of modern tort scholars toward their subject. For Weinrib, no less than for Calabresi, Coleman, Epstein, and Posner, tort law remains "unloved."

This article addresses negligence claims brought by persons who are placed at heightened risk of as-yet unmanifested injuries. It argues, first, that such claims are not rightly characterized as creating a class of "inchoate" torts: we maintain that there are no inchoate torts. Further, we note that the absence of inchoate torts, although difficult to explain on standard economic-deterrence views, is quite intelligible on a conception of tort as a law of civil recourse. Second, the article argues that claims for unripened injuries cannot be salvaged as claims for the "harm" of being exposed to heightened risk of illness. The duties of negligence law are duties to take care not cause full-blown injuries, not duties to avoid creating risks of injuries, and we offer several overlapping explanations as to why negligence law operates in terms of such duties. Third, the article asserts that heightened-risk claims are not well captured within the doctrinal category of "negligent infliction of emotional distress," in large part because the category itself does not make much sense. To the extent, claims for fear of future injury ought to be actionable, it is only in situations where that fear arises from the plaintiff's having been exposed to an objective threat of physical harm or disease. To the extent actionable, actions for negligence causing fear of future injury are thus best seen as close cousins of the ancient tort of assault. Finally, we maintain that suits seeking reimbursement for medical monitoring to detect the future onset of illness are best understood not as seeking compensatory damages for ripened torts, but instead as requesting equitable relief prior to ripening in the form of court-ordered funding of medical treatment. Conceptualizing medical monitoring suits in this manner, we argue, makes sense of the courts' reluctance to award lump sum damages to such claimants, and provides judges with a more coherent framework within which to determine when they should award funds for monitoring.