Some Reasons Courts Have Become Active Participants in the Search for Ultimate Moral and Political Truth

This short essay was prompted by the increasing delegation to courts of the responsibility for deciding what are basically moral questions, such as in litigation involving human rights conventions, as well as the responsibility for deciding basic issues of social policy with at best only the most general guidelines to guide their exercise of judicial discretion. The essay discusses some of the reasons for this delegation of authority and briefly describes how courts have struggled to meet this obligation without transcending accepted notions governing the limits of judicial discretion

The Uneasy and Often Unhelpful Interaction of Tort Law and Constitutional Law in First Amendment Litigation

There are increasing tensions between the First Amendment and the common law torts of intentional infliction of emotional distress, defamation, and privacy. This Article discusses the conflicting interactions among the three models that are competing for primacy as the tort law governing expressive activities evolves to accommodate the requirements of the First Amendment. At one extreme there is the model that expression containing information which has been lawfully obtained that contains neither intentional falsehoods nor incitements to immediate violence can only be sanctioned in narrowly defined exceptional circumstances, even if that expression involves matters that are universally regarded as being of no public interest. At the other extreme is the model that some expression which, though lawfully obtained, reveals to a wider audience intimate private information about another should be subject to sanction, as should verbal abuse of a private figure even if there is no implicit threat of physical violence. Some provisions of the American Restatement adopted with scant attention to constitutional developments have taken, and to some extent continue to take, that position. Finally, there is an intermediate model—now gaining wide-spread support in Europe and to some extent in America, even among some members of the United States Supreme Court—that expression which does not concern matters of “public concern” can be subject to public sanction even if it has been lawfully acquired and involves no threats of physical aggression against others. This Article sets out how this confusing impasse has come about and the dangers that this lack of clarity present for freedom of expression

Dworkin’s Empire

Review of: Law\u27s Empire. By Ronald Dworkin. The Belknap Press of Harvard University Press, Cambridge, Mass., 1986

A Comment on Restatement Third of Torts’ Proposed Treatment of the Liability of Possessors of Land

In §§ 51 and 52 of the forthcoming second volume of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm, the reporters have sought to accommodate the trend to extend the liability of possessors of land to trespassers. The courts that have led the way in this legal transformation of the traditional common law have largely focused on the foreseeability of the trespasser and of the likelihood of injury from the disrepair of the premises. The Restatement (Third) takes a different approach by focusing on the flagrancy of the trespass, a concept with significant moral connotations. I argue that this approach has severe problems. The notion of flagrancy conjures up at least two overlapping visions. One is the purpose of the trespasser in committing the trespass, such as whether to commit a crime. The other is the frequency of the trespass; the more frequent the trespass the more foreseeable it is to the possessor of the premises. But since frequency, after a point, shows a total disregard of the rights of the possessor, it can lead to the conclusion that, what would have been an actionable injury, is now without a remedy because of the flagrant disregard of the rights of the possessor. Moreover, by focusing on the moral culpability of the injured trespasser, it requires juries and courts to make moral judgments with large subjective components. This possibility is recognized by the reporters in their explicit recognition and expectation that different jurisdictions might have different notions of what is \u27flagrant.\u27 Whether a restatement of the law that accepts that different states will look at things differently is actually a \u27restatement\u27 is a matter that deserves serious consideration