Volume 121, Issue 1, October 2011
5
Articles
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2
Jules L. Coleman,
Wednesday, 05 October 2011
121 Yale L.J. 2 (2011).
Contemporary jurisprudence has been dominated by an unhelpful interest in
taxonomy. A conventional wisdom has grown up around these projects. This Article, the first in
a three-part series, identifies two dominant claims of this conventional wisdom in
jurisprudence—one substantive, the other methodological—and argues that both are deeply
mistaken and must be discarded. Rather than construct a new taxonomy founded on different
claims, this Article casts aside the taxonomical projects of jurisprudence in favor of a project of
reconceptualizing jurisprudence in terms of a set of basic problems. In order to identify the
fundamental problems of jurisprudence and to make progress on their resolution, an
architectural framework for the field is required. Freed from the burdens of the conventional
wisdom, the Article turns to putting in place a solid foundation on which a new architecture of
jurisprudence can be erected and points both to the fundamental problems of jurisprudence and
the direction in which progress on their resolution is likely to be found.
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82
Ariel Porat,
Wednesday, 05 October 2011
121 Yale L.J. 82 (2011).
In negligence law, the risks taken into account by courts when setting the standard
of care are the same risks considered when imposing liability and awarding damages. I call this
the “alignment principle.” One objective of this Article is to expose exceptions to the alignment
principle, which I call “misalignments.” In cases of misalignment, the risks that are accounted for
in setting the standard of care are different from the risks for which liability is imposed and
damages are awarded. A second objective of this Article is to suggest modifications to the law
when misalignments cannot be justified. The most important objective of this Article, however,
is to offer a theory of how to evaluate and contend with misalignments.
Five cases of misalignment are identified and discussed in the Article. The first case
illustrates how courts set the standard of care independently of the victim’s level of income, but
award different amounts of damages to high- and low-income victims. The second case
represents instances in which causation is inherently hard to prove. In such cases, courts set the
standard of care according to the expected harm, but traditionally allow no compensation when
the plaintiff suffers harm but cannot prove that it was caused by the defendant’s negligence. In
the third case, courts account for both risks increased and decreased by the injurer when setting
the standard of care, but ignore the decreased risks when awarding damages. In the fourth case,
courts set the standard of care by taking into account both ordinary and unusual risks, but often
refuse to impose liability for harms that materialized from the ordinary risks. Finally, in the fifth
case, courts set the standard of care by considering the risks the injurer created for others, but
not the risks he created for himself, even though the negligent injurer bears harms that
materialized from both the risks to others and the risks to self. In all five cases, the goals of tort
law would be better served by removing misalignments and equally accounting for risks both in
setting the standard of care and awarding damages.
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Essay
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142
Mark A. Geistfeld,
Wednesday, 05 October 2011
121 Yale L.J. 142 (2011).
When a tort rule is fully aligned, harms are valued equally across the elements.
Because the valuation of harm within duty equals the valuation within the damages remedy, a
fully aligned rule gives dutyholders the option to fully comply with the duty with respect to any
harm by paying (the equally valued) compensatory damages for that harm. Full alignment
characterizes a rule of strict liability but not negligence liability, which partially misaligns the
elements for reasons of principle. Owing to its primary reliance on the damages remedy, a fully
aligned rule is unable to address adequately the problem of irreparable injury, a common law
category encompassing bodily injury and damage to real or tangible property. In cases of
irreparable injury, the common law has long recognized the principle that it is better to prevent
the harm instead of attempting to compensate for its occurrence with the inherently inadequate
monetary damages award. This principle explains why tort law has adopted a default rule of
negligence liability that seeks to prevent the irreparable injury of physical harm without
imposing undue hardship on the dutyholder. To function in this manner, the negligence rule
must misalign the elements so that dutyholders are prohibited from rejecting the primary duty of
care (based on a higher legal valuation of harm) in exchange for payment of (the lower-valued)
compensatory damages.
The principle of misalignment reorients the interpretation of tort law in a manner that has
been missed by leading accounts. It decisively shows that courts have formulated the negligence
rule in a fundamentally inefficient manner, while also showing that the rights-based accounts of
corrective justice must explain why that form of justice would primarily value the exercise of
reasonable care as opposed to the payment of compensatory damages. For reasons revealed by
the misaligned negligence rule, that type of explanation can be supplied by a compensatory tort
norm that redirects the dutyholder’s compensatory obligation from the damages remedy into
expenditures that would prevent physical harm, yielding the type of misaligned negligence rule
that now constitutes the default rule of tort liability. In a world of irreparable injuries and scarce
resources, the varied limitations of tort liability can all be understood in relation
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Note
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194
Abigail M. Hinchcliff,
Wednesday, 05 October 2011
121 Yale L.J. 194 (2011).
Section 2 of the Fourteenth Amendment allows states to disenfranchise citizens on
account of “rebellion, or other crime” without reducing the size of the state’s delegation in the
House of Representatives. In its 1974 decision in Richardson v. Ramirez, the Supreme Court held
that this language in the Fourteenth Amendment (the so-called Penalty Clause) provides an
“affirmative sanction” for at least some forms of felon disenfranchisement. Although lower
courts have construed the Ramirez Court's constitutional approval for felon disenfranchisement
broadly, this Note argues that Ramirez authorizes felon disenfranchisement only in a narrow set
of circumstances. Whereas other commentators have called for the overruling of Ramirez and for
nontextualist interpretations of the Penalty Clause, this Note works within the confines of the
Ramirez decision and follows the Court’s command that “language [in the Penalty Clause] was
intended . . . to mean what it says.” The Clause’s “other crime” construction follows a syntactical
pattern found in three other constitutional clauses, and a close examination of the repeated use of
this construction reveals that the scope and meaning of “crime” is framed by the leading
examples or categories that precede it. The constitutionality of disenfranchisement is limited by
this relationship and should be reexamined.
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Comment
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237
Michael J. Ellis,
Wednesday, 05 October 2011
121 Yale L.J. 237 (2011).
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