The Myths of Macpherson

For a symposium marking the centenary of MacPherson v. Buick, we identify three common characterizations of Cardozo’s famous opinion that purport to explain its importance. Unfortunately, each of these characterizations turns out to be a myth. MacPherson is worthy of celebration, but not because it recognizes that negligence law’s duty of care is owed to the world, nor because it displays the promise of an instrumental, policy-oriented approach to adjudication, nor because it embraces a nascent form of strict products liability. These myths of MacPherson reflect deep misunderstandings of tort law, and of Cardozo’s distinctively pragmatic approach to adjudication. Ironically, although they have been largely fostered by progressives, the myths lend support to the cause of modern tort reform. By contrast, an accurate appreciation of MacPherson’s virtues permits an understanding of negligence, tort law, and common law adjudication that provides grounds for resisting regressive reforms

Compensating Market Value Losses: Rethinking the Theory of Damages in a Market Economy

The BP Deepwater Horizon spill and the Toyota car recalls have highlighted an important legal anomaly that has been overlooked by scholars — judicial inconsistency and confusion in ruling whether to compensate for the loss in market value of wrongfully affected property. This article seeks to understand the anomaly and, in the process, to build a stronger foundation for enabling courts to decide when — and in what amounts — to award damages for market value losses. To that end, the Article analyzes the normative rationales for generally awarding damages, adapting those rationales to derive a theory of damages that covers market value losses, not only of financial securities (such as stocks and bonds) but also ordinary products (such as automobiles and lightbulbs)

A Patent Reformist Supreme Court and Its Unearthed Precedent

How is it that the Supreme Court, a generalist court, is leading a project of innovation reform in our times while the court of appeals established to encourage innovation is having its precedent stricken down time and again? This decade the Supreme Court has issued far more patent law decisions than in any decade since the passage of the Patent Act of 1952. In doing so, the Supreme Court has overruled the Federal Circuit in roughly threequarters of the patent cases in which the Supreme Court has issued opinions. In most of these cases, the Supreme Court has established rules that favor accused infringers over patent holders, and the result has been an era of patent litigation reform far more impactful than anything Congress has achieved. Scholars have observed that the Supreme Court tends to overrule Federal Circuit decisions that (1) impose rigid legal rules as opposed to flexible standards; (2) adopt special rules for patent law cases rather than applying general principles of law and equity applicable to all federal cases; and/or (3) fail to grant sufficient discretion to the district courts. This paper examines the twenty-eight Supreme Court opinions overruling the Federal Circuit since 2000 and quantifies their rationales to discover that, while these reasons are often invoked, the Supreme Court’s most common rationale is that the Federal Circuit has disregarded or cabined its older precedent from before the 1982 creation of the Federal Circuit, from before the 1952 Patent Act, and even from before the 20th Century. The Court has relied on this rationale in twenty-one of the twenty-eight cases. The paper then seeks to probe beneath the surface level patterns to discover the deeper roots of the discord between the Supreme Court and the Federal Circuit. Constitutional law scholars have observed that the Supreme Court’s policy preferences are the primary, unstated motivation behind its decisions. The Court writes opinions that rely on the flexible tools of precedent and stare decisis in order to implement its policy choices while maintaining its institutional reputation for neutrality. The Court does this by influencing precedent vitality; the Court selects which of its precedent to rely upon and augment and which of its precedent to distinguish and narrow. This process runs in direct conflict with the Federal Circuit, a court that was originally conceived and viewed by some of its members as a court intended to bring uniformity to patent law in a way that would reinvigorate patent rights. The Federal Circuit would implement the 1952 Patent Act in a way that would draw patent law out of the nineteenth century. But for the Supreme Court, the 1952 Act was a mere codification of patent law as developed by the courts for over a hundred years. Hence, the Federal Circuit seeks to influence precedent vitality at direct cross-purposes with the Supreme Court. The result of the Supreme Court’s project has been a new era of common law patent reform in favor of accused infringers, which is gaining momentum as the Supreme Court decides far more patent cases than it has since the passage of the Patent Act of 1952

Refugee Policy in Australia and New Zealand: An Approach for Resettling Environmentally Displaced Persons?

An increase in human mobility as a consequence of climate change induced slow-onset environmental degradation and sudden-onset natural disasters is expected to be a defining feature of the 21st century. Inexorably shifting the global migratory landscape, the United Nations High Commissioner for Refugees (UNHCR) approximates that roughly 250 million people will be forcefully displaced due to adverse climate impacts by 2050. While there is no international consensus on appropriately categorizing such people, this thesis refers to them as environmentally-displaced persons (EDPs). Since EDPs do not qualify for refugee status, they are not afforded access to assistance under the 1951 Convention and 1967 Protocol; leading to what is known as the protection-gap . By employing Oceania as the case-study, through a critical refugee studies framework, this thesis aims to contribute to the worst-case scenario where EDPs will need to be resettled in a third country to secure safety from uninhabitable climate conditions. Specifically, this research seeks to uncover innovative approaches towards motivating states to resettle EDPs and asks, what rationale most compelled or deterred positive traditional refugee resettlement policies in Australia and New Zealand, and how can this model be applied in the case of EDPs from the Pacific Islands? Thematic and content analysis was deployed through a non-experimental comparative case-study design built on secondary qualitative data. The findings reveal the predominance of the national security rationale and legal rationale in Australia and New Zealand\u27s refugee policymaking, respectively. While limited to islands or coastline countries, these results under a “Pacific Peoples’ Solution” framework can help stakeholders identify potential avenues for soft approaches towards EDP resettlement in the absence of binding obligations

Validating a forced‑choice method for eliciting quality‑of‑reasoning judgments

In this paper we investigate the criterion validity of forced-choice comparisons of the quality of written arguments with normative solutions. Across two studies, novices and experts assessing quality of reasoning through a forced-choice design were both able to choose arguments supporting more accurate solutions—62.2% (SE = 1%) of the time for novices and 74.4% (SE = 1%) for experts—and arguments produced by larger teams—up to 82% of the time for novices and 85% for experts—with high inter-rater reliability, namely 70.58% (95% CI = 1.18) agreement for novices and 80.98% (95% CI = 2.26) for experts. We also explored two methods for increasing efficiency. We found that the number of comparative judgments needed could be substantially reduced with little accuracy loss by leveraging transitivity and producing quality-of-reasoning assessments using an AVL tree method. Moreover, a regression model trained to predict scores based on automatically derived linguistic features of participants’ judgments achieved a high correlation with the objective accuracy scores of the arguments in our dataset. Despite the inherent subjectivity involved in evaluating differing quality of reasoning, the forced-choice paradigm allows even novice raters to perform beyond chance and can provide a valid, reliable, and efficient method for producing quality-of-reasoning assessments at scale

Regional design

In recent decades the Netherlands has seen an increase in the use of regional design-led practices in national indicative planning. Despite this, the interrelations between design and planning decision making are not well understood and attempts to involve the expertise and ambition of designers in planning have had unclear outcomes. This paper elaborates on the role and position of regional design in indicative planning. It is argued that design in this realm resembles discretionary action, implying that design both influences, and is influenced by, prevailing planning rationales. An analytical framework is developed on these grounds and applied to a set of regional design initiatives that evolved in the context of Dutch national plans between 1988 and 2012. Significantly, the analysis reveals forms of discretional control that shape the creative design practice, of particular importance being the flexibility of planning guidance and the resulting room for interpretation. In theoretical terms, the article contributes to the discussion of how design – as an explorative search for solutions to problems in a particular spatial context – and design theory can contribute to an understanding of the multiple planning experiments emerging in this post-regulative era

Conclusions

To design for the purpose of planning was not new when regional design emerged as a distinguished discipline in the 1980s in the Netherlands. On the contrary, to imagine solutions for particular areas and to discuss these for the purpose of planning has been a long-standing tradition that can be traced back to the emergence of urban planning in the early 20th century. However, when spatial planning emerged as a new, more collaborative and anticipatory planning approach in the last decades, expectations concerning performances of design in planning decision-making increased. Design came to be seen as a practice that not only improves the spatial and technical quality of plans, but also enhances planning innovation, clarifies political agendas, forges societal alliances and raises the efficiency of planning through timely consideration of conflicts that planning may cause in societal and political domains. Since the 1990s, regional design underwent a process of institutionalisation in Dutch national planning. The practice became repetitively used and was formally embedded in planning procedures. Despite more varied expectations and institutionalisation, interrelations between regional design and spatial planning are not well understood. As a result, the performances of regional design are difficult to predict and consequently, often disappointing. Therefore, this research has sought to conceptualise interrelations between regional design and spatial planning. It aimed at an enhanced explanation and prediction of performances. The main research question was: how do the interrelations between regional design and spatial planning influence the performances of regional design? Answers to this question were sought through case-study research. During two consecutive rounds of exploration, two perspectives were taken. During a first in-depth case-study, key performances of regional design were analysed. During a second multiple case-studies analysis, the contextual determinants of these performances were investigated. Detailed results of this dissertation are embodied in Chapter 3 to 7 of this publication. Below, these outcomes are summarised in order to form one coherent line of argument. Theoretical notions, which were considered during the research but were not mentioned in earlier publications of the chapters in the form of journal articles and book chapters, are added. The chapter also contains a critical reflection on the research approaches that were used. A dedicated section summarises the implications of findings for future research

From \u3cem\u3eFeres v. United States\u3c/em\u3e to \u3cem\u3eBoyle v. United Technologies Corp.\u3c/em\u3e: An Examination of Supreme Court Jurisprudence and a Couple of Suggestions

Absent any clear legislative history, the Supreme Court concluded in Feres that Congress had not intended the Federal Tort Claims Act to apply to injuries incident to military service. Since the Feres decision, the Court has offered a series of unpersuasive and inconstant rationales for its conclusion. This article offers a unified rationale that reflects a rational legislative concern and invites intelligent and consistent application by the Courts. Paradoxically, in determining the validity and scope of the government contractor defense, the Court having available a carefully considered, clearly articulated judicial opinion spelling out the applicability of that defense, saw fit to repudiate that judicial reasoning, thereby fashioning a defense far more sweeping than the defense requested. The author suggests that the Court would do well to reconsider its conclusion, tempering it with the preexisting judicial reasoning and with the unified rational the author offers for the Feres doctrine

The Antiregulatory Arsenal, Antidemocratic Can(n)ons, and the Waters Wars

The Clean Water Act (CWA) has become a centerpiece in an enduring multifront battle against both environmental regulation and federal regulatory power in all of its settings. This article focuses on the emergence, elements, and linked uses of an antiregulatory arsenal now central to battles over what are federally protected “waters of the United States.” This is the key jurisdictional hook for CWA jurisdiction, and hence, logically, has become the heart of CWA contestation. The multi-decade battle over Waters protections has both drawn on emergent antiregulatory moves and generated new weapons in this increasingly prevalent and powerful antiregulatory arsenal. This array of antiregulatory skews and frames can be decisive, especially when wielded before sympathetic judges skeptical about the administrative state or environmental protection. The article questions the legitimacy of this antiregulatory arsenal, points out ways these antiregulatory moves in the Waters setting often dodge actual statutory choices, and identifies countervailing strategies that are more respectful of democratic choices. The new antiregulatory canons are akin to weaponized cannons empowering judges. The article calls for judges to apply more legislatively respectful frames in exploring questions of legal meaning, statutes’ policy priorities, or regulatory power as allocated by Congress and wielded by agencies based on scientific or factual criteria prioritized in governing statutes