Torts Article

Duties, Liabilities, and Damages

Vol. 125 No. 7 In this Article I explore two ways of understanding damage awards. The first way, which I call the duty view, supposes that damage awards confirm existing legal duties to pay damages. According to this view, damage awards are structurally similar to awards that require defendants to do things such as deliver contractually promised goods, cease nuisances, or pay contractual debts. Like these awards, damage awards are essentially rubber stamps: they require defendants to do what they should have done already. In contrast, the second way of understanding damage awards, which I call the liability view, supposes that insofar as it makes sense to speak at all of legal duties to pay damages, such duties are created – not confirmed – by damage awards. According to this view, damage awards are structurally similar to awards that require criminal wrongdoers to pay fines.
Contract Law Article

Introduction: Pragmatism and Private Law

Vol. 125 No. 7 Like many legal concepts, “private law” has recognizable referents yet eludes precise definition. Private law defines the rights and duties of individuals and private entities as they relate to one another. It stands in contrast to public law, which establishes the powers and responsibilities of governments, defines the rights and duties of individuals in relation to governments, and governs relations between and among nations. Private law includes the common law subjects that have long been central to U.S. legal education – contracts, property, and torts. But it is not limited to those subjects, nor to common law. Statutory fields such as intellectual property and commercial law fall within private law. So too do areas of law now mostly neglected in U.S. law schools, such as agency, unjust enrichment, and remedies. At a broader level, the phrase “private law” gestures toward an elusive set of distinctions between what is public and what is private. Private law is law, so government is involved, albeit in a particular way. Typically, it makes available institutions and procedures that enable individuals and entities to define their relationships and to assert and demand the resolution of claims against others. Courts are central to this framework, but so too are arbitral panels. In turn, this institutional framework builds on and partly incorporates customs and social norms pertaining to interpersonal interaction.
Law and Economics Article

A Skeptical Attitude About Product Liability Is Justified: A Reply to Professors Goldberg and Zipursky

Response to The Easy Case for Products Liability Law: A Response to Professors Polinsky and Shavell, The Uneasy Case for Product Liability
Vol. 123 No. 8 In The Uneasy Case for Product Liability, Professors A. Mitchell Polinsky and Steven Shavell maintained that the benefits of product liability are likely to be less than its costs for many products, especially widely sold ones. The article was intended to alter the dominant view held by the judiciary and commentators that product liability has a clear justification on grounds of public policy. It argued instead that a skeptical attitude toward product liability should be adopted. Professors John Goldberg and Benjamin Zipursky strongly criticize the article in The Easy Case for Products Liability Law: A Response to Professors Polinsky and Shavell. To a significant extent, however, they attack a straw man, for they impute to the article a radical thesis – that product liability should be eliminated for all widely sold products – that Uneasy manifestly did not advance.
Law and Economics Article

The Easy Case for Products Liability Law: A Response to Professors Polinsky and Shavell

Response to The Uneasy Case for Product Liability
Vol. 123 No. 8 The Uneasy Case for Product Liability, authored by Professors A. Mitchell Polinsky and Steven Shavell, cannot sustain the burden it has set for itself. The evidence it marshals is surprisingly scant, consisting of anecdotes about products that suffered declining sales after being linked to certain injuries, observations about consumer’s improved access to safety information, a brief review of inconclusive studies of whether a rule of strict liability better deters the sale of unsafe products than a negligence rule, reminders of the high costs of civil litigation, and a smattering of microeconomic theory. These observations are nowhere near sufficient. In essence, Uneasy argues for the elimination of an entire body of law based on the absence of social scientific evidence of a certain sort demonstrating the significance of its contribution to the goals of deterrence and compensation.