Who Decides - Community Safety Conventions at the Heart of Tort Liability

What we need is a uniformly accepted theory that explains the tort liability system in terms of its ultimate social function. The reason we don\u27t have one, I will argue, is that our understanding of the tort liability system has been skewed by an earlier, flawed attempt at descriptive theory. Before embarking on a new search for a descriptive theory, we first ought to formulate a search plan, sometimes called, forbiddingly, a theoretical methodology. Using John Finnis\u27s social science methodology, we can identify the two halves of the focal case of tort liability: intentional battery and negligent infliction of personal injury. Next, history provides the key to an accurate description of negligence liability because it identifies the theoretical origins of the modern unreasonable foreseeable risk explanation of the negligence standard. Once we have identified the origins of that explanation, we can identify the theoretical problem: how to adequately describe a system influenced to some extent by a prior inaccurate theoretical description. The historical and practical inquiries ultimately combine to provide a unified description of battery and negligence liability. This unified description of negligence and battery identifies a common structure to the claims of wrong redressible in the two causes of action. Once we identify the underlying structure of a negligence claim, we can begin to solve the doctrinal puzzles in negligence law

Restating Duty, Breach, and Proximate Cause in Negligence Law: Descriptive Theory and the Rule of Law

The American Law Institute ( ALI ) set out to restate the general common law in the United States in order to promote clarity and certainty in the common law, which were threatened by the ever increasing volume of the decisions of the [different state] courts, establishing new rules or precedents, and the numerous in- stances in which the decisions are irreconcilable. Clarity and certainty in the common law across the United States, of course, re- quires uniformity. Naturally enough, then, the Institute recognized that a Restatement would promote clarity and certainty in the law only insofar as the legal profession accepts the Restatement as prima facie a correct statement of the general law of the United States. The Second and Third Restatements recognized additional objects: to correct errors in earlier restatements, to reflect changes in the common law since earlier restatements, and, in limited circumstances, to promote clearly desirable reform. None of these additional objects can be secured without first achieving uniformity, certainty, and clarity. The original object, therefore, remains of primary importance. This primary object seems to have clear implications for the form of a restatement. Uniformity, clarity, and certainty in the law would be enhanced by a black-letter restatement of the law. The black-letter law could be in the form of specific rules applicable directly to a set of facts, or in the form of standards, with enough specificity to give understandable guidance to the decision-maker called upon to apply the standard to a specific set of facts. The American Law Institute has taken these implications to heart; each restatement is in the form of a set of black-letter rules or standards, with commentary. When there are conflicting specific rules in different states, each restatement adopts one of the rules rather than formulating a legal directive at a higher level of generality that could plausibly describe both of the conflicting rules. In an important sense, then, the primary object of the Restatement project limits the form that any restatement can take, because the goals of uniformity, clarity, and certainty can be achieved only if the law is restated with clarity in a form that can be applied uniformly to yield predictable, certain results

Wrongful Life, Wrongful Birth, and Justice in Tort Law

Should those who undertake to aid couples in preventing the birth of a child by contraception or abortion be liable in tort for damages when something goes wrong and an unwanted child is born

A Critical Analysis of Holmes\u27s Theory of Torts

In this Article I will first attempt to describe Holmes\u27s theory of torts in a sufficiently broad context to reveal his methodology, the assumptions underlying his methodology, and the relation between Holmes\u27s methodology and his substantive theory. After placing Holmes\u27s theory within the philosophical tradition of nineteenth-century positivism, I shall attempt a practical critique of Holmes\u27s methodology by analyzing its assumptions, the reasonableness of these assumptions, and the matters the methodology is forced to conclude are irrelevant. I then focus on Holmes\u27s substantive theory to see whether it is internally coherent in light of these methodological assumptions. The analysis concludes by isolating the novel theoretical concepts introduced by Holmes to explain tort liability. This work is a preliminary to further theorizing about tort liability. It is purely critical and analytical

Theories of Legislation and Statutory Interpretation: Natural Law and the Intention of the Legislature

In the first section of this Article, I survey a number of modern theories of legislation and test them by considering their adequacy as an explanation of a federal statute, the Family and Medical Leave Act of 1993 (“FMLA), which provides an instructive example of a modern social welfare statute. In explaining and critiquing some of the modern theories, I do not try to reinvent the wheel, but follow the explanations and critiques in the teaching materials of Eskridge and Frickey, and the excellent book by Daniel Farber and Philip Frickey, Law and Public Choice: A Critical Introduction. The contribution here is in adding Marxist theory and modern natural law theory to the mix, and exploring how each of the modern theories would explain the passage of the FMLA. In the second section, I take the most promising of these theories as an explanation of the FMLA—a natural law theory of legislation applying the insights of John Finnis—and examine whether Finnis’s methodology can be used to answer a riddle one faces in elaborating a theory of statutory interpretation: What sense can one give to the recurring explanation by judges that their role in statutory interpretation cases is to discover and implement the legislature’s intent

Investigation into the sex pheromone of the adult female odd beetle, \u3ci\u3eThylodrias contractus\u3c/i\u3e Motschulsky, 1839

Insects of many species depend on the chemical cues in sex pheromones to identify potential reproductive partners. Previous studies have shown that odd beetle, Thylodrias contractus utilize sex pheromones at the onset of reproductive physiology that leads to mating behavior. This is a study to make strides to identify the sex pheromone(s) for the odd beetle, T. contractus. In this study, efforts to isolate the sex pheromone of this pest insect began with observations of the mating behavior of this insect. This was followed by dissections of adult virgin females in an attempt to reveal which parts of the anatomy were producing the pheromone. In addition, several sampling methods were used to help identify this pheromone on a Gas Chromatograph. These methods included blowing filtered-air across live beetles onto an absorbent column, solvent washes of adult beetles and a sampling technique using solid phase microextraction (SPME) on live insects. Finally, an analysis of the headspace above live adult virgin females using a Gas Chromatograph/ Mass Spectrometer (GC-MS) was made. Comparison of the Gas Chromatograph results and the results of the GC-MS has narrowed the possibilities of what compounds may be included in the female attractant pheromone