Beyond the Model Rules: The Place of Examples in Legal Ethics

The Model Rules of Professional Conduct defined the agenda for the post- Watergate renaissance in legal ethics. While there had been some form of codified precepts for American lawyers since at least 1908, Watergate inspired a desire to clean up a disgraced profession. The American Bar Association (ABA) promulgated the Model Rules; law schools instituted mandatory courses; and scholars debated and analyzed the new Model Rules. The organized bar devoted much time and attention to developing these guidelines. The mainstream media covered both the bar\u27s original efforts and the subsequent adoption of the Model Rules by particular jurisdictions. Today, forty-three American jurisdictions have adopted ethics guidelines based closely on the Model Rules

Libertarianism With a Twist

Review of SIMPLE RULES FOR A COMPLEX WORLD. By Richard A. Epstein. Cambridge: Harvard University Press. 1995. Pp. xiv, 361

Why the Latest Ruling in the Sandy Hook Shooting Litigation Matters

On March 19, 2019 the Connecticut Supreme Court officially released its opinion in Soto v. Bushmaster Firearms International, LLC. Because the decision greenlights civil discovery and trial for the Sandy Hook plaintiffs seeking compensation from the maker, distributor,and retailer of the gun used by the shooter, the ruling received much attention in the popular press. It is, however, very easy to get the wrong impression about the significance of the Connecticut Supreme Court’s decision and the avenues it creates for both the plaintiffs and the defendants in the litigation. The decision is both more and less significant than it seems at first glance. It opens a serious pathway to liability under the PLCAA and creates a strategic dilemma for the defendant as to whether to appeal or go to trial. Yet the PLCAA remains a bar to most types of civil action to which other product makers and sellers are subject. In the absence of comprehensive congressional regulation, it will remain difficult to require or motivate gun makers to enhance the safety of firearms design and distribution

Pushing Drugs: Genomics and Genetics, the Pharmaceutical Industry, and the Law of Negligence

This article presents a piece of a larger, ongoing project on the phenomenon of market-driven manufacturing (MDM) and how tort law should address it. In contrast to the larger project, this article provides a relatively brief overview of the general phenomenon of MDM, but zeros in on how pharmaceutical manufacturers specifically practice MDM. MDM is a well-documented, much practiced activity, although American courts do not recognize MDM as a discrete category of conduct. The basic idea of MDM is that marketing considerations should continuously control every aspect and stage of a product\u27s lifecycle. When a company engages in MDM, it completely inverts the conception of product design, development, and dissemination that seems natural to those unfamiliar with modern producer practices

Rawls’ Political Constructivism as a Judicial Heuristic: A Response to Professor Allen

In her Dunwody Lecture, Professor Anita Allen insightfully calls our attention to the social contract tropes that pepper American case law. She claims that these tropes function ideologically, disguising politics, biases, and raw power in judicial decision-making. To examine this claim, I distinguish two versions of social contract theory Professor Allen groups together. Metaphors drawn from classical social contract theory-epitomized by the work of John Locke and Jean-Jacques Rousseau may well function as Professor Allen suspects. Tools taken from twentieth century neo-Kantian social contract theory-inaugurated and developed by John Rawls-could have precisely the opposite effect. Rawlsian social contract theory might function critically in case law, forcing judges to shed unconsidered or irrelevant prejudices

Loss

Within Republican political circles, numerous state legislatures, and even the U.S. Congress, advocating caps on noneconomic damages in tort suits is in vogue, as part of the ongoing politics of tort reform. Yet, the distinction between economic and noneconomic damages is nonsensical. It does not originate in the discipline of economics, but seems instead to be purely a rhetorical invention of those who wish to limit damages by any means politically possible. But law reform based on sheer rhetoric should be shunned; unprincipled rhetoric is no substitute for justificatory reasons, and to make laws without reasons exemplifies arbitrariness and injustice. The focus of this article is relatively narrow--restricted primarily to revealing the incoherence of a purported distinction between economic and noneconomic harms or losses--the author\u27s pursuit of this point reveals, along the way, certain similarities between the common law of tort and the main ideas of modem economics. Quite often, those who defend the common law approach to torts contrast it with an economic interpretation of this area of law. While there may be areas where economics and tort law conflict, understanding loss is not one of them

Codes and Virtues: Can Good Lawyers be Good Ethical Deliberators?

Regardless of its specific contents, any black letter statutory codification regulating lawyers\u27 conduct will be flawed as an instrument of ethics for lawyers. This is the central thesis of this Article. It is motivated by the idea that typical statutory prohibitions and permissions are likely to stunt sentimental responsiveness, a key feature of good ethical deliberation. Additionally, a certain technocratic mode of legal analysis heightens this tendency. Although other styles of lawyering might better engender sentimental responsiveness, statutory codes of lawyers\u27 ethics do not invite this style as readily as a welldeveloped common law of lawyers\u27 ethics would

Harm and Money: Against the Insurance Theory of Tort Compensation

Since the 1980s, tort damages for pain and suffering have excited hue and cry. Twenty-three states currently place statutory limitations on tort damages for pain and suffering: seven states cap damages in general tort cases; an additional sixteen states limit awards solely in medical malpractice cases. Several states also have provisions limiting damages in other, very specific types of tort cases. While some statutes have been invalidated on state constitutional grounds, others have survived judicial scrutiny. At the federal level, both the House of Representatives and the Senate have passed tort-reform bills. Although no compromise legislation has been enacted, this is the first time that both chambers of Congress have passed bills limiting recovery for pain and suffering. Against this political backdrop, a number of leading legal economists have advanced the insurance theory of tort compensation to justify the elimination of tort damages for pain and suffering. The insurance theory\u27s roots lie in neoclassical economics, and it adopts the broader discipline\u27s guiding normative principle of economic rationality to decide the sorts of injuries for which a victim ought to be able to recover damages in tort. The insurance theory\u27s central premise is that accident victims should not recover damages for injuries against which it would not have been economically rational to insure. In other words, if an economically rational agent would not purchase first-party insurance for a certain type of injury, tortfeasors should not be required to pay damages for it. Insurance theorists conclude that rational actors would not insure against nonpecuniary losses, and therefore accident victims should not be able to recover tort damages for them

Cities, Government, Law, and Civil Society

This Article develops a first iteration of a locality-centered account of civil society and the role for government and law within it. I examine a particular municipality—the City of Pittsburgh—to provide a concrete example from which to generate ideas and judgments about the terrain and content of this localist account. While it may seem startling to approach the large goal of providing a generalizable account of civil society and municipal agency from a review of one U.S. city, I believe that doing so keeps the account grounded in particularities that highlight the very concrete ways in which civil society both manifests in, and can be supported by, a city. As more cities and other considerations are brought to bear on my account, I expect revisions to be in order. While I hope the account I produce can be serviceable for cities outside of the United States, my own ambition is to identify ideals suitable to cities within it. This is partly because my own expertise is in U.S. law, but also because I believe any ac­ count of cities, civil society, and law must relate to actual settings. U.S. cities share enough historical and legal context to answer to a general account. I leave to others, in their own application of reflective equilibrium, the question of whether the lessons I draw have implications for other cities in other places, with different histories and different laws

Objectivity in Legal Judgement

This essay unites the philosophical concern with blend concepts and the legal concern with objectivity. Comparing blend legal concepts with other kinds of blend concepts develops our resources for ascertaining the distinctive characteristics of blend concepts. Cultivating a more refined understanding of blend concepts sharpens our inquiry into objectivity. In Part I of this essay, I explicate the distinctive characteristics of blend concepts, demonstrating that some representative legal concepts, drawn from tort law, possess these characteristics. In Part II, I develop a conception of objectivity suitable for blend judgments - the blend conception of objectivity - and use this conception to evaluate some representative blend legal judgments, including judgments of negligence, judgments of what is speech, and judgments of rape. Finally, in Part III, I situate my discussion of the objectivity of blend judgments in the context of legal scholarship regarding objectivity, using the blend conception of objectivity to diagnose some hidden problems in previous discussions of objectivity in law