Faculty Bibliography

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.

In the Moral of MacPherson, it was argued that the concept of duty does not does important work in judicial decisions about tort, and in the academic enterprise of explaining and interpreting tort law. Indeed, it is suggested that, without the concept of duty, a cogent general description of the structure of negligence law would not be possible. This article intends to do what was argued could not be done: to re-describe the law of negligence in terms of unreasonableness, causation, and injury, with duty serving merely as a question-begging label for the absence of a policy-based exemption. The central critical goal of this article is to demonstrate that the self-conscious and carefully-constructed three-element views put forward in the drafts of the Restatement do not capture the law, and hence that a sound restatement of negligence cannot simply neglect duty.

In this review, Professor John C.P. Goldberg examines Professor Andrew L. Kaufman's biography of Justice Cardozo. While Cardozo presents a rich factual picture of its subject's life and legal career, Goldberg argues that it fails to capture the essence of his jurisprudence or satisfactorily explain why Cardozo is considered a great judge. Contrary to the opinions of scholars such as Kaufman and Judge Richard Posner, who each consider Cardozo a different form of Legal Realist, Goldberg argues that Cardozo was among the most accomplished anti-Realist judges of the twentieth century. Goldberg takes issue with Kaufman's thesis that Cardozo merely balanced various competing factors in deciding cases - which does little to explain why Cardozo reached the decisions he did - and with Judge Posner's attribution of Cardozo's fame to his literary prowess. Instead, Goldberg argues that Cardozo believed that the law contained meaningful concepts and that the job of the judge is to apply these concepts. Cardozo's talent for conceptual analysis, his detachment from the world, his acknowledgment of his own limitations, his judicial humility, and his perceptiveness shaped his particular style of judging - that of a pragmatic conceptualist. Ultimately, Goldberg argues that Cardozo's greatness can be explained by his ability to combine astute legal analysis with an awareness of social conditions and changing social norms.

In this Comment on Professor Minow's article, Professor Goldberg explores Judge Weinstein's understanding of the relationship between justice and compensation in mass tort litigation. Professor Goldberg questions whether Judge Weinstein accepts the traditional notion that justice requires full restoration of an injured plaintiff to the status quo ante. Instead, in mass tort cases, where either there is no wrongdoer or the extent of injury to the plaintiff is disproportionate to the degree of wrongdoing by the defendant, Judge Weinstein may believe that compensation is more properly measured by the plaintiff's needs. This belief may explain why damage awards approved by Judge Weinstein have sometimes fallen substantially below the full compensation demanded by the traditional doctrine. While a need-based approach to compensation departs from tort law orthodoxy, Professor Goldberg shows that Judge Weinstein's approach finds support in the works of tort theorist Fleming James. James likened mass torts to natural disasters. Whereas the orthodox tort model presupposes an individual wrongdoer who directly caused the plaintiff's losses, responsibility in modern mass torts may be so widespread and diffuse as to be attributable to no one in particular. In such cases, where liability may not track fault, Weinstein and James question the need, and even the justice, of requiring the defendant to make the plaintiff whole. Professor Goldberg demonstrates how Weinstein, like James, shows a preference in mass tort cases for distributive, rather than corrective, justice. He thus answers the charges of critics who would see mass tort settlements approved by Judge Weinstein as a denial of justice, while assuring admirers that, in the area of compensation too, Judge Weinstein's ultimate concern is that justice is done.

As Neil Duxbury notes, Holmes consistently provokes strong reactions in his readers. The substance of those reactions, however, is notably inconsistent. Some tend toward the view that Holmes is an empty vessel; a font of legal aphorisms for every occasion. Others find Holmes to have advocated a bleak and noxious account of law that equates right with might. Still others seem to believe both. This panel on the European reception of The Path of the Law contains representatives of the first two positions. Dr. Duxbury argues that the success of Holmes's essay is proof that Holmes's significance owes less to the content and coherence of his ideas than to the stylish and suggestive manner in which he expressed them. In contrast, Professor Dyzenhaus reads the essay as advancing a comprehensive political theory that endorses an amoral and deeply cynical account of law and adjudication. Speaking in broad terms, there is another quite different scholarly take on Holmes--one evidenced on this panel by Professor Twining and in the papers of other conferees, including Judge Posner and Professor Grey. These interpreters maintain that, when handled with sufficient care, Holmes's rhetoric reveals a nuanced liberal theory of law and adjudication. Professor Twining, a representative of this "camp," insists, for example, that Holmes has been done a disservice by those who mistake the "bad man" for the hero of The Path of the Law, when in fact it represents only one aspect of Holmes's vision. As is perhaps already evident from the foregoing, I am sympathetic to the views of the latter group, and this article aims to promote their cause by taking issue with Duxbury and Dyzenhaus. Part I attempts to rebut Duxbury's argument that Holmes's legacy can be reduced to a notion of style divorced from substance. Part II maintains that Dyzenhaus errs in contending that Holmes's commitment to a version of legal positivism led him to endorse a cynical, statist account of law and a passive theory of judging. This contention, I argue, is mistaken both as a conceptual argument about legal positivism and as a descriptive claim about The Path of the Law. Part II concludes by offering evidence in support of the claim that Holmes's theories of law and adjudication are best described as a relatively moderate and liberal form of positivism.