• Selected
• Entire List

Abstract:
Legal scholarship and pedagogy on the regulatory state are at parallel, important junctures, and two new books stand at the cutting edge. The first, Law and New Governance in the EU and the US, edited by Gráinne de Búrca and Joanne Scott, is a collection of works by some of the leading scholars in the "new governance" field. The second, The Regulatory and Administrative State: Materials, Cases, Comments, by Lisa Heinzerling and Mark Tushnet, is one of the first casebooks for a class on the regulatory state, as well as the first book from Oxford University Press's new Twenty-First Century Legal Education series.

In this review essay, I aim to link these two books and the developments in the legal academy for which they stand: the scholarly effort to rethink the role of the state in the twenty-first century and the curricular effort to make courses on the regulatory state a core part of legal education. I think both books are tremendously important and largely succeed on their own terms. But I argue that they share a common flaw: a lack of attention to the "adversarial legalism" that pervades American policymaking and implementation, and the role of lawyers. This inadequacy threatens both the power of new governance as an overarching regulatory theory and the pedagogical potential of promising curricular reforms. I suggest future directions for new governance scholarship, and for courses on lawyering in the regulatory state.

Regulatory state, Legal pedagogy

Abstract:
The traditional conception of tort law as individual justice has been revived in recent years, particularly through the idea of "corrective justice." But as corrective justice has had problems gaining traction among scholars and judges, a promising challenger in the individual-justice camp has emerged: civil recourse theory, which sees tort law as a means for empowering individuals to seek redress against those who have wronged them. Civil recourse theory has an advantage over corrective justice in its fit with the structure, concepts and doctrine of American tort law. But it seems to lack a morally appealing norm at its core. Indeed, critics such as John Finnis have charged that it seems to smack of vengeance, and treat such an impulse as morally worthy. Though the civil recourse theorists have pointed to reasons justifying a law of civil recourse, they have thus far stopped short of providing a robust normative justification. This paper seeks to provide such a normative justification. I do so by breaking down the normative case for civil recourse into three parts: first, in cases of accidental harm, why is the victim entitled to feel resentful towards the defendant such that second, she is morally justified in "acting against" the defendant in some fashion; and third, the victim is given access to a state-sponsored mechanism (tort law) for doing so. Though my focus is on civil-recourse theory, I think this discussion can illuminate the normative appeal of a broader set of individual-justice theories of tort law. I also aim to provide a response to those who would eliminate tort law through preemption, or significantly curtail it through "reform" efforts. In response to the question "What is tort law for?," my answer is: helping constitute a community of equals who are answerable to one another, and expected to treat one another with equal respect. Whether or not such an institution is worth having, in light of its costs and effect on other social goals, is for Congress, state legislatures, and citizens to decide. But that is what is at stake.

Corrective justice, Civil recourse theory

Abstract:
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's 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.

Tort, Plaintiff, Corrective justice, Self-help, Civili Recourse

Abstract:
The conventional wisdom on harmless-error doctrine is that there are two different and irreconcilable approaches, reflected in two coexisting lines of Supreme Court cases. Much of the scholarship on harmless error focuses on the difference in these two approaches - whether one looks at the strength of the overall evidence against the defendant, absent the error (the guilt-based approach), or on the likely impact of the error itself on the jury (the error-based approach). But this debate obscures the shared normative ideal at the heart of harmless-error doctrine. I argue that by using tort law, these two approaches can be reconciled in a way that increases the accuracy of harmless-error analysis overall.

This Article 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 doctrine, I grapple with the question: what does it mean for an error to cause a conviction? Indeed, different conceptions of factual causation appear to account for many of the differences in harmless-error outcomes in the federal courts. The Article presents an empirical analysis of harmless-error determinations from the past decade, revealing that 93% of cases using a guilt-based or but for approach found that the error was harmless, as opposed to 47% of cases that used an error-based approach, the equivalent of the substantial factor test for factual causation. With either approach, judicial assumptions about the effects of different kinds of evidence on jurors are often remarkably at odds with research on jury behavior.

I argue that a hybrid approach to harmless-error analysis can better serve the normative ideal of determining factual causation at criminal trials, and avoid appellate fact-finding that violates the Sixth Amendment. In order to make accurate causal determinations, though, we must make better use of empirical research on how various kinds of errors impact jurors, as well as specific evidence of influence on the jury.

Harmless error, torts, criminal procedure, juries, evidence, constitutional, trials