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Abstract:
This contribution to the Maryland symposium honoring Guido Calabresi and 'The Cost of Accidents' takes a semi-friendly outsider's look at how one extraordinarily successful jurisprudential movement developed over the last generation. During the last thirty-five years, law and economics has been simultaneously deteriorating and thriving: Most of its core neoclassical particulars - among them rational choice, wealth maximization, faith in markets, and a claim to science - have been shaken profoundly, but at the same time its attention to a Kaldor-Hicks style bottom line ("welfare") and its inclination to give forward-looking advice to the government have won over almost everyone in legal-academic and policy communities, to the point that it is now hard to say where this field ends and others begin. Against this backdrop of failure and success, Guido Calabresi's 1970 classic can be reread for guidance about the future of law and economics.

Law and economics, welfare economics, wealth maximization, behavioral, Kaldor-Hicks, Calabresi, Posner

Abstract:
Recent developments emphasize that marriage is a legal artifact. No matter what end they pursue - extending marriage to same-sex couples, a "defense of marriage" that seeks the opposite goal, reform of divorce rules, or marriage promotion as social policy-marriage activists are fighting over rights, entitlements, and appropriations. As their wins and losses reveal, the legal effects of two persons' joining together into a dyad are not static. Legislatures and governments bestow the law of marriage, and can also take it away. More change is possible: Marriage could cease to exist as a legal category. Under this proposal, the government would ignore pairings-off, intervening in couples' lives only as it now uses the law of contracts, tort, crimes, and property to moderate relations between any other pair of adults.

This paper considers what such a change would do to American law and society. It explores the current legal consequences of getting married and of ending a marriage, and then moves from individuals to the collective, assessing detriments and benefits that Americans as a group experience as a result of recognizing this legal category. In the end, although it finds the prevailing rationales for marriage unconvincing, the paper favors retention over abolition.

Abstract:
This article, prepared for the Dan B. Dobbs Conference on Economic Torts held at the University of Arizona in March 2006, joins commentary on themes raised in the draft Restatement (Third) of Torts: Liability for Economic Loss, by returning to an old question: Why does tort doctrine, not only in the United States but around the world, generally refuse to compensate a plaintiff for "pure economic loss" - an injury that can be seen only as missing money, unaccompanied by personal injury or property damage - attributable to a defendant's careless conduct? The answer offered here is the precept of trying to "keep it simple." More than other fields, which often invite repeat-player expertise, tort law strives to make its doctrines and processes intelligible to persons of limited experience and sophistication. "Simple" enough injuries in this framework include breached promises and visible or tangible traumatic impacts. Losses related to financial expectancy can be too hard to comprehend.

economic loss, expectancy, economic analysis, floodgates, proportionality, exclusionary rule, Restatement (Third) of Torts, visual, Kohlberg

Abstract:
Governments around the world have undertaken reparations programs following historically recent experiences of serious human rights violations. This chapter uses tort theory to defend monetary payments as a constituent of national repair. It argues that paying money to victims comports with feminism too.

Once accepted in principle, this measure raises a new question: What is the best way to convey pecuniary reparations in transitional settings? With due heed for the reality that circumstances always vary from country to country, the chapter argues for "microfinance" (as distinguished from "microcredit") as the preferred mode for transitional governments designing new national reparations programs. The chapter works with, while also trying to deepen, a conventional wisdom that microfinance advances the social and economic status of women.

Abstract:
Governments around the world have undertaken reparations programs following historically recent experiences of serious human rights violations. This chapter uses tort theory to defend monetary payments as a constituent of national repair. It argues that paying money to victims comports with feminism too.

Once accepted in principle, this measure raises a new question: What is the best way to convey pecuniary reparations in transitional settings? With due heed for the reality that circumstances always vary from country to country, the chapter argues for microfinance (as distinguished from microcredit) as the preferred mode for transitional governments designing new national reparations programs. The chapter works with, while also trying to deepen, a conventional wisdom that microfinance advances the social and economic status of women.

reparations, feminist legal theory, tort theory, international law, international human rights, microfinance, microcredit, financial institutions

Abstract:
This essay introduces a symposium on workplace privacy held at Louisiana State University in February 2006. It builds on new work contributed by Matthew Finkin, Catherine Fisk, Rafael Gely & Leonard Bierman, Steven Willborn, Pauline Kim, Charles Craver, and Michael Selmi. Invoking concepts familiar from the torts side of employment law - including dignity and dignitary entitlements, remedies for wrongful discharge, and contrasts between individual- and group-based enforcement of rights and interests - the essay contends that although workplace privacy has never been robust in statutory or judge-made law, it is central to the legal concept of privacy more generally. In its role of enhancing how Americans understand intrusion, humiliation, and the betrayal of justified expectations, workplace privacy may prove strong enough to undo - or at least gravely weaken - the doctrine of employment at will. Workplace privacy may also be tackling some of the problems that private-sector labor unions once were more able to address.

privacy, employment law, workplace dignity, employment at will, unions, labor

Abstract:
Entrants joining the legal profession are entitled to fair warning about what they are getting into. Accounts of lawyers' heroism, triumph, and reformist energy continue to inspire young people to pursue this profession, and they should. But before they represent a client, newcomers need to be informed about pitfalls, the complement to power: how lawyers lose their licenses, face liability for malpractice and breach of fiduciary duty, see their work performance deemed not competent or not "effective" under the Sixth Amendment, struggle against judges, become disqualified from representing particular clients, and forfeit some freedoms of speech and association. Learning about pitfalls enables lawyers not only to protect themselves should they encounter danger, but also to advance what is good for their clients and the public.

This Essay examines lawyers' pitfalls with an eye to their vocational and theoretical interest, gives examples of pitfalls-related teaching and learning strategies already present (but not always visible) in the American legal curriculum, and integrates this perspective with other approaches to lawyers' professional responsibility.

Abstract:
Before it can sell a prescription drug lawfully in interstate commerce, a manufacturer must prove to the satisfaction of the Food and Drug Administration that the drug is both safe and effective. Congress approved this requirement in 1962 unanimously. Four decades of changes in the drug market have reshaped this regulatory hurdle.

This article makes detailed reference to these transformative developments to argue that the statute's adjectives have merged into one unitary inquiry about utility, a multifaceted query that many sectors ask and answer. Because consumers - that is, patients, physicians, managed-care organizations, and third-party purchasers like employers - cannot resolve this query without information, revealing information lies at the heart of the safe and effective regulatory promise.

We locate in the Food, Drug and Cosmetic Act an obligation for regulators to foster the revelation of known (or readily knowable) information that consumers need to determine whether a drug offers value. We give examples of particular drugs that were marketed without the information that would have given a more accurate picture of their utility to show that this shift in regulatory policy would not only fulfill the statutory mandate, but also repair a market failure for the benefit of consumers.

drugs, pharmaceutical, prescription, regulation, information, consumer, medical, FDA, MCO, Vioxx, medical informatics, evidence-based medicine

Abstract:
Although the duty of zealous advocacy enjoys nominal approval in most state bar rules and the secondary literature, today the majority of writings about zeal in the practice of law present zeal in a negative light. Critics use this word to object to lawyers' dishonesty, hyperpartisanship, aggressive or confrontational work styles, rudeness, and disregard for the interests of adversaries, the courts, and the public. This article, part of a Hofstra University symposium, builds on the literature that praises zealous advocacy (much of it written by symposium honoree Monroe Freedman) to identify a shortage of zeal in American legal practice and identifies legal education as a culprit. Arguing that new rules of professional responsibility could enhance the supply of zealous advocacy, the article endorses the Massachusetts variation on Model Rule 1.3, and presents a new Model Rule 1.18(e) with comments.

zeal, zealous advocacy, professionalism, pro bono, legal education, lawyers, Model Rules

Abstract:
Transnational law remains in fashion among those who revise the curricula of U.S. law schools. Supplementing traditional domestic materials with studies of international, transnational, and comparative law is indeed a solution. But what is the problem? Pedagogical reform is an experiment, and no experiment can succeed without a plan followed by observation. Much of what passes for transnational legal education (especially in brochures and on websites) lacks seriousness. It is what denizens of New Orleans call a "lagniappe" - that is, a lightweight frill, devoid of intentionality and perceived consequences. The article acknowledges the appeal of a lagniappe, and also offers suggestions for curricular planners who seek to give their students heartier transnational fare.

Abstract:
Transnational law remains in fashion among those who revise the curricula of U.S. law schools. Supplementing traditional domestic materials with studies of international, transnational, and comparative law is indeed a solution. But what is the problem? Pedagogical reform is an experiment, and no experiment can succeed without a plan followed by observation. Much of what passes for transnational legal education (especially in brochures and on websites) lacks seriousness. It is what denizens of New Orleans call a lagniappe - that is, a lightweight frill, devoid of intentionality and perceived consequences. The article acknowledges the appeal of a lagniappe, and also offers suggestions for curricular planners who seek to give their students heartier transnational fare.

legal education, transnational, international, curriculum

Abstract:
This article, an expanded version of the Monsanto Lecture given at Valparaiso University School of Law in early 2004, coins a phrase to complement enterprise liability. Traditional enterprise liability theory conceived of accident victims as passive, the mere recipients of what business does to them. Their advocates were also viewed as passive.

In a new century, however, the enterprise of liability - the plaintiffs' bar - has emerged as a robust, aggressive source of what both injured individuals and the American public demand. Commentary attacking the plaintiffs' bar as entrepreneurial (a term almost always used pejoratively) notwithstanding, the enterprise of liability deserves credit for the two social goods associated with entrepreneurial endeavor - wealth and choice - and should be lauded by anyone who lauds free enterprise.

Enterprise liability, plaintiffs' bar, entrepreneurial litigation, civil justice

Abstract:
This paper argues that negligence law depends on "communities" in order to fulfill its agenda of promoting both security and freedom. Although many disciplines and discourses favor divergent understandings of the word "community," for purposes of the law the defining trait of community is group-based constraint. Communities can include various human aggregations. As far as the law understands this term, members need not have joined communities voluntarily, and the community need not have any leadership or power to change the lives of its members. Negligence law reaps benefits from the fact that certain groups exist. Their constraints make individuals less likely to hurt others (and thereby advance the "security" agenda) while sparing negligence law itself the political costs of repressing and deterring (i.e., "freedom"). In recognition of this adjuvant support, negligence law deems some group memberships relevant to its judgments about the standard of care.

"Communities" in this sense helps to answer three vexing questions about the standard of care in negligence. First, what exactly is the "objective" standard of care that courts and commentators purport to favor, and what justifies it? Second, if the objective standard of care is proper, what justifies the various subjective exceptions that courts have created? Third, should the standard of care be the same for both plaintiffs and defendants?

Negligence, community, objective, subjective, malpractice, standard of care

Abstract:
For decades, personal-injury liability for the harms that prescription drugs cause has languished, unloved among legislatures and commentators. A near-consensus frets about overdeterring manufacturers; writers fear that lawsuits drive valuable pharmaceutical products from the American market. Even though confidence in FDA oversight - the main alternative to liability as a source of consumer protection - is in decline, few express concern about the possibility of underdeterrence.

Without denying that the costs of personal-injury liability might threaten the supply of prescription drugs, this article, first presented to an audience of state and federal judges in November 2006, looks at what judges (especially judges who try cases in state courts) can do to strengthen liability as a check on the harms that these products inflict on consumers. It invites courts to help enforce an entitlement to effectiveness, just as they now help enforce an entitlement to safety.

Abstract:
This Article defends a much-maligned cohort of lawyers by pointing out their unique accomplishments. Critics of the asbestos plaintiffs’ bar call these advocates greedy, unethical, and over-enriched. Regardless of the merits of the accusations, any judgment of these lawyers must also recognize what they achieved. American legal doctrines, both substantive and procedural, had stood in the way of asbestos plaintiffs’ claims. The vigorous advocacy and creative challenges that overcame these barriers should inspire all lawyers who seek to perform effectively in behalf of clients.

asbestos, ethics, tort reform

Abstract:
Most scholars of professional responsibility who have written about the ban on solicitation of new clients want to see the prohibition liberalized. This Article offers empirical support for the near-consensus by exploring the two contrary meanings of "sanction." Sanction in the sense of punishment exists in state codes of professional responsibility: Almost every United States jurisdiction deems solicitation a disciplinary offense. The record, however, reveals sanctioning in the sense of condoning. My effort to count every instance of attorney discipline for solicitation reported to the public during 2002-2007 located very few in relation to the 1.3 million licenses held to practice law. The number is apparently only 61, and I argue that, properly understood, this count is much lower - perhaps as low as 1. Purporting to declare a behavior punishable while at the same time permitting it to go on without punishment is a state of hypocrisy that the bar ought to abandon.

solicitation, legal ethics, plaintiffs', professional responsbility

Abstract:
When they apply the doctrine of preemption, courts refuse to hear claims for personal injury on the ground that adjudication of these claims would be inconsistent with a regulatory scheme. Finding that federal law preempts personal injury in those cases where Congress has not made this declaration overt is an inference about congressional purpose and intent. Because what Congress meant to do does not appear in the words of a statute, implied preemption can be more accurately understood as "inferred preemption."

Current preemption law asymmetrically assumes that Congress sometimes intends to preempt tort liability yet never intends to abandon this kind of preemptive design once undertaken. This assumption is inaccurate, as a study of one exemplar - consumer product safety regulation - reveals. Because old inferences of preemption can grow obsolete and inaccurate after Congress has moved in a different direction, the judge-made doctrine of implied preemption calls for a complementary doctrine of implied reverse preemption.

legislative intent, preemption, tort liability