The Supreme Court’s Theory of Private Law

In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court\u27s recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival. Our argument is that the Supreme Court\u27s theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment–tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has adopted a particular and dominant, but highly contested, theory of private law. It is the theory that private law is not private at all; it is part and parcel of government regulation, or public law in disguise. Part I is a brief overview of how that jurisprudential view came to be, as well as a sketch of a competing view of private law as individual justice. In Part II, we briefly trace the development of the doctrine surrounding the tension between the First Amendment and private law, particularly tort law, and how it helps lead to the view of private law as government regulation displayed in Snyder. We also point out how the intentional infliction of emotional distress tort, the main claim at issue in Snyder, is a particularly poor vehicle for the Court\u27s theory of private law. A relatively recent tort, it was developed by scholars and judges as a means of redress for plaintiffs who had been wronged, but were left without a remedy. Part III presents the central claims of the Article. We argue that the conception of private law as government regulation in Snyder arises from a combination of (1) the doctrinal tools that judges use in First Amendment cases, (2) the unitary nature of the state-action doctrine, and (3) the influence of instrumentalism, specifically in obscuring the plaintiff\u27s agency and the state interest in redress, and in privileging a particular view of compensation. In Part IV, we present some normative or prescriptive implications of our analysis, and then conclude

The Supreme Court’s Theory of Private Law

In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court\u27s recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival. Our argument is that the Supreme Court\u27s theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment–tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has adopted a particular and dominant, but highly contested, theory of private law. It is the theory that private law is not private at all; it is part and parcel of government regulation, or public law in disguise. Part I is a brief overview of how that jurisprudential view came to be, as well as a sketch of a competing view of private law as individual justice. In Part II, we briefly trace the development of the doctrine surrounding the tension between the First Amendment and private law, particularly tort law, and how it helps lead to the view of private law as government regulation displayed in Snyder. We also point out how the intentional infliction of emotional distress tort, the main claim at issue in Snyder, is a particularly poor vehicle for the Court\u27s theory of private law. A relatively recent tort, it was developed by scholars and judges as a means of redress for plaintiffs who had been wronged, but were left without a remedy. Part III presents the central claims of the Article. We argue that the conception of private law as government regulation in Snyder arises from a combination of (1) the doctrinal tools that judges use in First Amendment cases, (2) the unitary nature of the state-action doctrine, and (3) the influence of instrumentalism, specifically in obscuring the plaintiff\u27s agency and the state interest in redress, and in privileging a particular view of compensation. In Part IV, we present some normative or prescriptive implications of our analysis, and then conclude

Law and governance in the 21st-century regulatory state pp. 7-14

Assistant Professor Jason Solomon discusses two new books on the 21st-century regulatory state and what we can learn from them

Juries, Social Norms, and Civil Justice

At the root of many contemporary debates and landmark cases in the civil justice system are underlying questions about the role of the civil jury. In prior work, I examined the justifications for the civil jury as a political institution, and found them wanting in our contemporary legal system. This Article looks closely and critically at the justification for the civil jury as an adjudicative institution and questions the conventional wisdom behind it. The focus is on tort law because the jury has more power to decide questions of law in tort than any other area of law. The Article makes three original contributions. This Article looks closely and critically at the justification for the civil jury as an adjudicative institution and questions the conventional wisdom behind it. The focus is on tort law because the jury has more power to decide questions of law in tort than any other area of law. The Article makes three original contributions. This Article looks closely and critically at the justification for the civil jury as an adjudicative institution and questions the conventional wisdom behind it. The focus is on tort law because the jury has more power to decide questions of law in tort than any other area of law. The Article makes three original contributions

The Political Puzzle of the Civil Jury

At the root of many contemporary debates over the civil justice or tort system—debates over punitive damages, preemption, and tort reform more broadly—are underlying questions about the justification for the civil jury. The United States is the only country that still uses a jury in civil cases, and most civil jury trials are tort trials. The jury has more power to decide questions of law in tort than in any other area of law, so any serious discussion of tort law must have the civil jury at its center. The debate over the jury—in both the academic literature and the public domain—tends to focus on how good or bad it is as an adjudicative institution. But its justification has often been based on its value as a political institution. In this Article, I look at the theory, concepts, and empirical evidence behind four principal justifications for the civil jury as a political institution: (1) acting as a check on government and corporate power, (2) injecting community norms into the legal system, (3) providing legitimacy for the civil justice system, and (4) fostering political and civic engagement among citizens. I tentatively conclude that the benefits of the civil jury as a political institution are overstated and provide suggestions for improving the functioning of the jury as a political institution and for further empirical research

Fulfilling the Bargain: How the Science of Ergonomics Can Inform the Laws of Workers’ Compensation

In the last decade, cumulative trauma disorders have become a significant percentage of reported workplace injuries and litigated workers\u27compensation claims. Arising from the accumulated impact of daily work activities on the body, these injuries do not fall neatly within disease categories which comprise workers\u27 compensation laws. As a result, courts and legislatures have struggled to properly evaluate workers\u27 compensation claims for these injuries. This Note looks at the legal treatment of cumulative trauma injuries in light of the original bargain of workers\u27 compensation, where workers give up a tort remedy against their employers in exchange for guaranteed, but limited, compensation for work-related injuries. In doing so, this Note undertakes a comprehensive comparison of litigated cumulative trauma cases in the tort and workers\u27 compensation systems. Utimately, this Note argues that judges must use the original bargain as an interpretative lens when deciding cumulative trauma cases, and points to ergonomics-the science of the workplace-as a significant new tool for determining whether such injuries are work-related

Judging Plaintiffs

With its powerful account of the normative principles embodied in the structure and practice of the law of torts, corrective justice is considered the leading moral theory of tort law. It has a significant advantage over instrumental and other moral theories in that it is more consistent with what judges say when they analyze tort law concepts. And with criticism of instrumental accounts, like law and economics, on a number of fronts, it is the leading descriptive theory of tort law. In this Article, I take up a question that has never been answered adequately by corrective-justice or other moral theorists: Why do we judge plaintiffs--their conduct, state of mind and other factors--to determine liability in tort law? This Article attempts to answer that question, and in doing so, shed light on contemporary theoretical, doctrinal, and practical debates about tort law. To do so, I first recast a variety of disparate doctrines in tort law as instances of a singular phenomenon-- judging-plaintiffs law --and argue that existing explanations of this phenomenon fall short. Next, I suggest that judging-plaintiffs law can be explained and unified through a principle of self-help. Then, I argue that a new moral theory of tort law, civil recourse theory, is uniquely well positioned to explain why plaintiff\u27s capacity for self-help ought to lead to a judgment of no liability. Finally, I suggest that my interpretation of judging-plaintiffs law lends support to a more robust right of action concept in civil recourse theory, and I describe the doctrinal and practical payoff of such an analytic move. I aim to help move the debate over tort theory and doctrine forward by placing civil recourse theory at the center of the discussion

Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error in Criminal Trials

This Article proceeds in four parts. Part II is a brief overview of harmless-error doctrine in the context of habeas challenges to state criminal convictions, focusing on the nature of the inquiry and the doctrinal deadlock described above. Part III is an empirical analysis of the post-Brecht cases in the federal courts of appeals. To search for a way out of the doctrinal deadlock, I started with a relatively straightforward question: what has happened to harmless-error analysis since Brecht? To answer this question, I reviewed and, with the help of a research assistant, coded all of the 315 harmless-error analysis on habeas review in published opinions over the last decade. Despite the different approaches, a common threat emerges: the language and logic of causation is everywhere, as courts struggle to assess the causal impact of an error on the jury\u27s verdict. Contrary to the conventional view, judges using different approaches to harmless-error are actually trying to answer the same fundamental question: did the error cause the conviction? Part IV proposes reconceptualizing harmless-error analysis as a determination of causation in a constitutional tort claim and using this reconception to provide a way out of the doctrinal morass. By turning to tort-law debates about what it means to cause harm, I grapple with the question: what does it mean for an error to cause a conviction? Indeed, it appears that different conceptions of causation -- described in tort law as the but for versus the substantial factor tests -- account for many of the differences in harmless-error outcomes in the federal courts. I argue that a hybrid approach can better serve the normative ideal of determining the factual causation at criminal trials while avoiding appellate fact-finding that violates the Sixth Amendment guarantee of a trial by jury. In Part V, I turn to prescription: how should judges implement this proposed reconception of harmless-error? First, I observe the difference between the harmless-error cases and the social science literature with respect to the dominant model of how jurors use evidence to reach a verdict. I argue that in the absence of direct evidence about the impact of errors on particular jurors, drawing inferences from empirical research on juries as part of the harmless-error analysis is both appropriate and desirable. And in focusing on the issue of causation, judges and lawyers should turn their attention to evidence of influence on the jury, as opposed to simply weighing the evidence of guilt