Doctrinal Redundancies

42 Pages Posted: 23 Sep 2015 Last revised: 9 Oct 2015

See all articles by F. Andrew Hessick

F. Andrew Hessick

University of North Carolina School of Law

Date Written: September 22, 2015

Abstract

Courts often create redundant doctrines. Yet doctrinal redundancies have received little attention. Although courts and scholars have written extensively about other types of redundancy, they have hardly discussed doctrinal redundancies. This Article remedies that oversight. It begins by defining when doctrines are redundant, providing a number of examples of doctrinal redundancy, and presenting a typology of doctrinal redundancy. It then identifies various benefits and costs of doctrinal redundancy. Drawing on psychology, behavioral economics, and social choice theory, it shows that doctrinal redundancy may serve important roles in strengthening and developing the law, but that it also risks distorting the law, leading to inconsistent outcomes, and providing a basis for judicial manipulation. The Article argues that, despite the benefits, the costs of doctrinal redundancies are significant enough that courts should avoid creating doctrinal redundancies except in limited circumstances.

Keywords: courts, doctrine, torts, federal jurisdiction

Suggested Citation

Hessick, F. Andrew, Doctrinal Redundancies (September 22, 2015). Alabama Law Review, Forthcoming, University of Utah College of Law Research Paper No. 132, Available at SSRN: https://ssrn.com/abstract=2664135

F. Andrew Hessick (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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