Scholars of culture, humanities and social sciences have increasingly come to an appreciation of the importance of the legal domain in social life, while critically engaged socio-legal scholars around the world have taken up the task of understanding "Law's Empire" in all of its cultural, political, and economic dimensions. The questions arising from these intersections, and addressing imperialisms past and present forms the subject matter of a special symposium issue of Social Identities under the editorship of Griffith University's Rob McQueen, and UBC's Wes Pue and with contributions from McQueen, Ian Duncanson, Renisa Mawani, David Williams, Emma Cunliffe, Chidi Oguamanam, W. Wesley Pue, Fatou Camara, and Dianne Kirkby. This paper introduces the volume, forthcoming in late 2007. The central problematique of this issue has previously been explored through the 2005 Law's Empire conference, an informal but vibrant postcolonial legal studies network.

Law's Empire

American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

/pdf/current-index-to-legal-periodicals-8re353ze53.pdf

Current index to legal periodicals

Autonomous vehicles may change the transportation landscape and policymakers must find the best course to maximize social benefits while minimizing drawbacks. This report weighs the potential advantages, including safety, mobility and fuel consumption, and disadvantages, including travel demand. Current legislation in Nevada, Florida, California, and Washington, DC, and in other states, and the standards and regulations that apply to such vehicles, are outlined. The report provides a brief history of autonomous vehicles and a summary of the role of telematics and communications, and discusses liability for drivers, insurers and manufacturers. It contains guidance for policymakers and risks to be considered as policies are formulated.

/pdf/autonomous-vehicle-technology-a-guide-for-policymakers-2gg3pjk9x8.pdf

Autonomous Vehicle Technology: A Guide for Policymakers

Taking Rights Seriously.

Third person effects of fake news

Torts scholars hold different views on why tort law shifts costs from plaintiffs to defendants. Some invoke notions of justice, some efficiency, and some compensation. Nearly all seem to agree, however, that tort law is about the allocation of losses. This Article challenges the widespread embrace of loss-based accounts as fundamentally misguided. It is wrongs not losses that lie at the foundation of tort law. Tort suits are about affording plaintiffs an avenue of civil recourse against those who have wronged them. Although torts were once routinely understood as wrongs, since Holmes’s time, tort scholars have tended to suppose that the concept of a wrong is either too moralistic to explain the terms on which liability is imposed or so capacious as to be vacuous. We demonstrate that torts can be understood as a special kind of wrong without draining the content from the concept of a wrong. Specifically, every tort is a legal, relational, civil, and injury-inclusive wrong. In turn, tort law provides victims of such wrongs with a power to obtain recourse against those who have wronged them. A view of torts as wrongs is not only conceptually available but interpretively superior to loss-based views. Indeed, the latter prove to be incapable of accounting for basic features of tort law, including: claims that are viable without proof of loss; claims that are not viable even though an actor has foreseeably caused a victim to suffer a loss; suits giving rise to remedies that do not involve the shifting of a loss; suits in which recovery turns on whether a certain kind of loss is parasitic on a predicate injury; and suits in which recovery is denied, or defenses rendered inapplicable, because there is a heightened or attenuated connection between the agency of the defendant and the plaintiff’s injury. In contrast to loss-based theories, a wrongs-based theory can easily account for all of these aspects of basic tort doctrine. Perhaps the greatest challenge to wrongs-based theories lies in explaining what value there is, apart from loss-shifting, in having tort law. Our answer is that tort law is law for the recourse of wrongs. Hand-in-hand with their articulation of legal wrongs, courts provide victims of such wrongs with an avenue of civil recourse against their wrongdoers. This is what tort law does. It makes real the principle that for every right there is a remedy.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1576644_code346250.pdf?abstractid=1576644

Torts as Wrongs

I. INTRODUCTION Cardozo's opinion in Palsgraf v. Long Island Railroad Co.1 hinges on a stark assertion about rights and wrongs: A plaintiff has no right of action unless she can show "'a wrong' to herself; i.e., a violation of her own right."2 Cardozo himself made this principle the core of his analysis, yet scholars typically regard it as impenetrable, circular, vacuous, or, as Posner put it, "eloquent bluff."3 Small wonder, then, that readers typically turn to "reasonable foreseeability" as the essence of the case. Leading scholars treat Palsgraf as a proximate cause case,4 despite Cardozo's pronouncement that "[t]he law of causation, remote or proximate, is thus foreign to the case before us."5 Though Palsgraf is widely regarded as the most famous case in American tort law, Cardozo's own reasoning in Palsgraf is typically ignored or derided, but not explained. The facts of Palsgraf may be peculiar, but its core principle is pervasive: For all torts, courts reject a plaintiffs claim when the defendant's conduct, even if a wrong to a third party, was not a wrong to the plaintiff herself. For example, an injured plaintiff can win in fraud only if she was defrauded, in defamation only if she was defamed, in trespass only if her land rights were violated, and so on. Courts reach these results even where the defendant acted tortiously, the plaintiff suffered a real injury, and the plaintiffs injury was reasonably foreseeable. The legal rule upon which these cases rely is that which our scholarly tradition treats so ambivalently in Palsgraf: A plaintiff cannot win unless the defendant's conduct was a wrong relative to her, i.e., unless her right was violated. I shall call this principle the "substantive standing" rule and shall show that it is a fundamental feature of tort law. Proponents of the most prominent theoretical approaches to tort law, law and economics6 and corrective justice theory,7 have generally neglected the substantive standing rule, and there are strong reasons to believe these approaches are unable to explain this area of tort doctrine. The larger problem is that the substantive standing rule provides evidence that tort law is built around certain conceptions of "wrongs," "rights," and "rights of action," and yet, I shall argue, seminal versions of law and economics and corrective justice theory do not appear to have adequate resources to accommodate these conceptions. With this in mind, I shall sketch a third way of understanding tort law.8 While this third view differs markedly from its competitors, it is far from eccentric. Indeed, I think it is the view that has always been embedded in tort law itself.9 Tort law is not just a system for the selective imposition of liability in ways that will maximize wealth or other social welfare goals, as some law and economics scholars contend. Nor is it simply a system for rectifying losses or apportioning moral responsibility, as some corrective justice theorists maintain. Like a great deal of statutory law, tort law articulates rules telling citizens how they may and may not treat one another and how they may expect to be treated by others. In deciding and announcing these rules, appellate courts are imposing duties on individuals not to treat others in certain ways and creating rights in individuals not to be treated in certain ways. The tort law's web of rights and duties embodies a plurality of values as broad as those found in our statutory law. Rights of action should be understood against the backdrop of these rights, wrongs, and duties. Our system normally prohibits individuals and the state from acting against another individual. However, when the state recognizes a private right of action, it empowers and privileges an individual to act against another through the coercive machinery of the state-to take his property or to force him to behave a certain way. The substantive standing rule states the conditions under which an individual is so empowered to act against a defendant: only when she has been legally wronged by the defendant, only when her own legal right has been violated by the defendant. …

/pdf/rights-wrongs-and-recourse-in-the-law-of-torts-3n77p3tqcj.pdf

Rights, Wrongs, and Recourse in the Law of Torts

I. CORRECTIVE JUSTICE 273 II. RIGHT AND REMEDY 276 III. OBJECTIONS 282 IV. THE DIVERSITY OF REMEDIES 286 V. PUNITIVE DAMAGES 289 VI. CIVIL RECOURSE IS CORRECTIVE JUSTICE 293

/pdf/civil-recourse-not-corrective-justice-1jc6ozvwcb.pdf

Civil Recourse, Not Corrective Justice

I. Introduction All of the standard substantive first-year law courses seem to address a basic legal category. All, that is, save one. Property is about the relationship of persons to things that can be owned and alienated - land, chattels, and patents, for example. Criminal Law, at its core, concerns rules so important that their violation elicits from the state its harshest action: punishment. Contract Law introduces students to the ways in which law can empower individuals to enter into mutually advantageous transactions. Civil Procedure provides students with an overview of the litigation process. Constitutional Law is about guarding the guardians. Each of these subjects stands out for being ancestral, essential, or both. The odd man out, it seems, is Torts. As it tends to be taught today, Torts is "accident-law-plus." Its most noted chestnuts involve claims for negligence or strict liability.1 Accidents - in the sense of unintended outcomes - are even at the center of the most commonly taught intentional tort cases.2 The "plus" comes from decisions that serve as a platform for discussions of economic or moral theory.3 In sum, Torts seems often to be conceived as a course that teaches students how common law allocates the costs of accidents, while also providing some instruction on law and economics, or law and philosophy. So defined, the course seems ad hoc and esoteric, not basic. Somehow law professors have lost their grip on its subject matter. The goal of this Article is to put us back on track, not just pedagogically but theoretically. Tort is indeed a basic category of law. To see this, however, one must abandon the notion, now deeply entrenched, that tort law is law for allocating the costs of accidents. As its name indicates, tort law is about wrongs.4 The law of torts is a law of wrongs and recourse - what Blackstone called "private wrongs."5 Of course tort law is in many ways public. It sets generally applicable standards of conduct.6 It is developed and applied by officials who may have in mind various policy concerns as they render judgments in particular cases. And its operation can advance or interfere with the operation of other public institutions. But tort is private in two basic senses. It defines duties to refrain from injuring (or to protect from injury) that are owed by certain persons to others: duties that, when breached, constitute wrongs to those others, as opposed to wrongs to the world.7 Second, precisely because torts are private wrongs, they provide the basis for a private response.8 For a wrong to be a tort it must in principle generate for its victim a private right of action: a right to seek recourse through official channels against the wrongdoer. As the law of private and privately redressable wrongs, tort law is rightly treated as a cornerstone of legal education along with criminal law (the law of public and publicly redressable wrongs) and contract law (the law of consensually defined duties). Looked at through the lens of litigation, Torts is about the wrongs that a private litigant must establish to entitle her to a court's assistance in obtaining a remedy and the remedies that will be made available to her. Looked at through the lens of daily life, Torts is about which duties of noninjury owed to others are counted as legal duties and what sorts of remedial obligations one will incur for failing to conduct oneself in accordance with those duties.9 In turn, the places to look for contemporary extensions of tort law are not the compensation systems with which tort law is frequently coupled.10 Rather, they are found in the rules governing 10b-5 suits, civil RICO actions, Title VII claims for workplace discrimination, constitutional tort claims, and intellectual-propertyinfringement actions. To study torts is to learn what sort of conduct our legal system defines as wrongfully injurious toward another such that, when committed, the victim is entitled to exact something from the wrongdoer. …

Foreseeability in negligence law is a persistent source of frustration to students and scholars because it pops up in three of the four elements of the tort: duty, breach, and proximate cause. The forthcoming Restatement (Third) of Torts: Liability for Physical and Emotional Harm has something valuable to say about foreseeability in each. The Restatement Reporters rightly criticize some courts for merging foreseeability in duty and breach and thereby usurping the jury’s prerogative to evaluate the breach issue. And they offer a nuanced and doctrinally powerful “scope-of-the-risk” standard to complement foreseeability in the context of proximate cause (now categorized under “scope of liability”). The Reporters’ treatment of foreseeability is emblematic of commendable goals of the project: guide courts to be less invasive of the jury on breach, and provide lawyers and judges analytical tools that will help discipline causation inquiries. Yet there are serious problems with the Reporters’ treatment of foreseeability: their effort to eliminate foreseeability from duty is unjustifiable; their attempt to squeeze foreseeability of breach into the Hand formula’s “P” component is forced; and their rationale for moving to a scope-of-the-risk conception of proximate cause is scant. The article concludes on a constructive note, offering a theoretical justification for scope-of-the-risk standard of proximate cause.

/pdf/foreseeability-in-breach-duty-and-proximate-cause-45lb3v7zwb.pdf

Benjamin C. Zipursky

Papers

Torts as Wrongs

Rights, Wrongs, and Recourse in the Law of Torts

Civil Recourse, Not Corrective Justice

Torts as Wrongs

Foreseeability in Breach, Duty and Proximate Cause