Introduction: Pragmatism and private law

Harvard Law Review

Volumn 125, Issue 7, 2012, Pages 1640-1663

  Goldberg, John C P ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84861357418     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (152)

1. This capsule definition is rough, in part because private law also governs the rights and duties of public entities insofar as they act in a private capacity-for example, as owners of property. As used here, the phrase "the New Private Law" refers to emerging perspectives on (or approaches to) private law, not to new developments in substantive law. It is shorthand for new thinking in private law. Cf. Julie A. Nice, The New Private Law: An Introduction, 73 Denv. U. L. Rev. 993, 993-95 (1996) (using the phrase to refer to the privatization of functions traditionally performed by governments, such as the provision of benefit payments or environmental protection).
2. See Jack Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 Harv. L. Rev. 1791, 1795 (2009).
3. See Daniel A. Farber & Philip P. Frickey, In the Shadow of the Legislature: The Common Law in the Age of the New Public Law, 89 Mich. L. Rev. 875, 884-87 (1991) (reviewing-in a contribution to a symposium on "the new public law"-sources of skepticism about distinctions between private and public law).
4. George P. Fletcher, Remembering Gary-and Tort Theory, 50 UCLA L. Rev. 279, 289 (2002) (internal quotation marks omitted) (invoking the "all law is public law" slogan and lamenting that, in the United States, it reflects the dominant academic view).
5. Michael Steven Green, Legal Realism as Theory of Law, 46 Wm. & Mary L. Rev. 1915, 1917 (2005) (emphasis omitted) (observing that the phrase "we are all realists now" is so familiar that it "has become a cliché to call it a 'cliché'" (quoting Laura Kalman, Legal Realism atYale, 1927-1960, at 229 (1986).
6. O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
7. Karl N. Llewellyn, Some Realism About Realism-Responding to Dean Pound, 44 Harv. L. Rev. 1222 (1931).
8. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976).
9. The origins of the phrase are uncertain. See John Ciardi, A Browser's Dictionary and Native's Guide to the Unknown American Language 41 (1980) (suggesting that it might derive from the use of concealed brass tacks to hold together upholstery, or from dry goods stores' use of brass tacks embedded in their counters to provide precise measures of fabric lengths).
10. Brass-tacks pragmatism bears some resemblance to what William James once described as the "tough-minded" temperament. William James, Pragmatism: A New Name for SomeOld Ways of Thinking 12 (1907). On James's view, however, tough-minded thinking, along with its "tender-minded" counterpart, was unpragmatic-hence he offered pragmatism as a way of reconciling the two, at 32-33. Moreover, certain attributes that he assigned to toughminded thinking (for example, pessimism), at 12, are not ones that I attribute to brass-tacks pragmatism. Likewise, the alternative form of pragmatism mentioned here-"inclusive" pragmatism-does not partake of several of the qualities that James assigned to the tender-minded disposition.
11. See David J. Seipp, Holmes's Path, 77 B.U. L. Rev. 515, 530 (1997).
12. O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
13. O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
14. O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
15. O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
16. O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
17. O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
18. O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
19. O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
20. O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
21. O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
22. O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
23. Karl N. Llewellyn, Some Realism About Realism-Responding to Dean Pound, 44 Harv. L. Rev. 1222 (1931).
24. K.N. Llewellyn, Holmes, 35 Colum. L. Rev. 485, 487-89 (1935) (crediting Holmes with having pointed the way to a realistic understanding of law while also noting ways in which he partook of antirealism).
25. Karl N. Llewellyn, Some Realism About Realism-Responding to Dean Pound, 44 Harv. L. Rev. 1222 (1931).
26. Karl N. Llewellyn, Some Realism About Realism-Responding to Dean Pound, 44 Harv. L. Rev. 1222 (1931).
27. Karl N. Llewellyn, Some Realism About Realism-Responding to Dean Pound, 44 Harv. L. Rev. 1222 (1931).
28. O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
29. Karl N. Llewellyn, Some Realism About Realism-Responding to Dean Pound, 44 Harv. L. Rev. 1222 (1931).
30. O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
31. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976).
32. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976).
33. See William Twining, Karl Llewellyn and the Realist Movement 205-07 (1973).
34. outlining the argument of Karl N. Llewellyn, The Common Law Tradition(1960).
35. outlining the argument of Karl N. Llewellyn, The Common Law Tradition(1960).
36. outlining the argument of Karl N. Llewellyn, The Common Law Tradition(1960).
37. outlining the argument of Karl N. Llewellyn, The Common Law Tradition(1960).
38. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976).
39. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976).
40. outlining the argument of Karl N. Llewellyn, The Common Law Tradition(1960).
41. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976).
42. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976).
43. See Ernest J. Weinrib, The Idea of Private Law 3 (1995) (emphasizing the longstanding suspicion of the idea of private law in American legal scholarship). I happily acknowledge that there are overlaps between, on the one hand, my diagnosis of the state of private law theory and my account of some of the tenets of the New Private Law and, on the other hand, Weinrib's critique of functionalist accounts of private law and his defense of an internal approach. Nonetheless, important differences remain. Most obviously-and most saliently for mainstream legal scholars in the United States-I am claiming for private law the mantle of pragmatism, rather than what Weinrib describes as "formalism, "
44. See Ernest J. Weinrib, The Idea of Private Law 3 (1995) (emphasizing the longstanding suspicion of the idea of private law in American legal scholarship). I happily acknowledge that there are overlaps between, on the one hand, my diagnosis of the state of private law theory and my account of some of the tenets of the New Private Law and, on the other hand, Weinrib's critique of functionalist accounts of private law and his defense of an internal approach. Nonetheless, important differences remain. Most obviously-and most saliently for mainstream legal scholars in the United States-I am claiming for private law the mantle of pragmatism, rather than what Weinrib describes as "formalism, "
45. O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
46. O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
47. Karl N. Llewellyn, Some Realism About Realism-Responding to Dean Pound, 44 Harv. L. Rev. 1222 (1931).
48. See John C.P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. Pa. L. Rev. 1733, 1777-98 (1998). As this observation implies, the same brass-tacks disposition that has fueled skepticism toward private law might well distort modern understandings of public law. I defer to scholars of public law on the extent to which it has done so and on whether there might be need of a new public law.
49. See John C.P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. Pa. L. Rev. 1733, 1777-98 (1998). As this observation implies, the same brass-tacks disposition that has fueled skepticism toward private law might well distort modern understandings of public law. I defer to scholars of public law on the extent to which it has done so and on whether there might be need of a new public law.
50. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976).
51. See John C.P. Goldberg, Prosser, William L., in The Yale Biographical Dictionary of American Law 439, 440-41 (Roger K. Newman ed., 2009) (noting that Prosser's scholarship embraced extant tort doctrine notwithstanding his strongly skeptical views of law and legal concepts).
52. Leon Green, Tort Law Public Law in Disguise II, 38 Tex. L. Rev. 257, 267 (1960) (arguing that appellate courts are relatively well situated to implement new policies through their decisions in tort cases).
53. For Judge Posner, judges, by virtue of their relative political insulation, are well situated to pursue the primary (social) good of efficient resource allocation. See William M. Landes & Richard A. Posner, The Economic Structure of Tort Law 18-19 (1987).
54. For Judge Weinstein, judges can, and must, harness the power conferred by tort law to provide assistance to individuals whose needs the political branches have unjustly neglected. See Jack B. Weinstein, Individual Justice in Mass Tort Litigation 5 (1995).
55. For Judge Weinstein, judges can, and must, harness the power conferred by tort law to provide assistance to individuals whose needs the political branches have unjustly neglected. See Jack B. Weinstein, Individual Justice in Mass Tort Litigation 5 (1995).
56. Guido Calabresi, The Costs of Accidents 244-85 (1970) (arguing that negligence law is ill suited to minimize the costs of accidents).
57. Guido Calabresi, The Costs of Accidents 244-85 (1970) (arguing that negligence law is ill suited to minimize the costs of accidents).
58. Guido Calabresi, The Costs of Accidents 244-85 (1970) (arguing that negligence law is ill suited to minimize the costs of accidents).
59. Guido Calabresi, The Costs of Accidents 244-85 (1970) (arguing that negligence law is ill suited to minimize the costs of accidents).
60. Guido Calabresi, The Costs of Accidents 244-85 (1970) (arguing that negligence law is ill suited to minimize the costs of accidents).
61. Guido Calabresi, The Costs of Accidents 244-85 (1970) (arguing that negligence law is ill suited to minimize the costs of accidents).
62. See Ernest J. Weinrib, The Idea of Private Law 3 (1995) (emphasizing the longstanding suspicion of the idea of private law in American legal scholarship). I happily acknowledge that there are overlaps between, on the one hand, my diagnosis of the state of private law theory and my account of some of the tenets of the New Private Law and, on the other hand, Weinrib's critique of functionalist accounts of private law and his defense of an internal approach. Nonetheless, important differences remain. Most obviously-and most saliently for mainstream legal scholars in the United States-I am claiming for private law the mantle of pragmatism, rather than what Weinrib describes as "formalism, "
63. Lon L. Fuller, Reason and Fiat in Case Law, 59 Harv. L. Rev. 376, 392 (1946) (criticizing as deficient Holmes's conception of private law as merely "state fiat").
64. Henry M. Hart, Jr., Holmes' Positivism-An Addendum, 64 Harv. L. Rev. 929, 932 (1951) (criticizing parts of Holmes's thought for its "behaviorism").
65. H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 606-15 (1958) (defending legal positivism against realist-inspired skepticism).
66. Charles Fried, Book Review, 93 Harv. L. Rev. 1858, 1860, 1867 (1980) (reviewing P.S. Atiyah, The Rise and Fall of Freedom of Contract (1979) (defending a traditional concept of contract law against the skeptical critiques of Kennedy, Atiyah, and others).
67. Some of these criticisms have carried intellectual baggage of a sort that members of the U.S. legal academy are understandably reluctant to take on. Natural law theory, for example, has long stood in opposition to brass-tacks pragmatism. And although it comes in many variants, natural law theory is usually tied to acceptance of a demanding set of claims about human nature and human flourishing. See, e.g., John Finnis, Natural Law: The Classical Tradition, in The OxfordHandbook of Jurisprudence and Philosophy of Law 1, 28-29 (Jules Coleman & Scott Shapiro eds., 2002). Likewise, rights-based views inspired by Kant and Locke have long been fertile sources of arguments against brass-tacks pragmatism, but they have also required embracing controversial foundational assumptions about the rights individuals have qua individuals.
68. See Ernest J. Weinrib, The Idea of Private Law 3 (1995) (emphasizing the longstanding suspicion of the idea of private law in American legal scholarship). I happily acknowledge that there are overlaps between, on the one hand, my diagnosis of the state of private law theory and my account of some of the tenets of the New Private Law and, on the other hand, Weinrib's critique of functionalist accounts of private law and his defense of an internal approach. Nonetheless, important differences remain. Most obviously-and most saliently for mainstream legal scholars in the United States-I am claiming for private law the mantle of pragmatism, rather than what Weinrib describes as "formalism, "
69. Of course, my impressionistic intellectual-historical romp concluded with an article published thirty-five years ago. I think it is fair to say that Kennedy's particular rendition of the bottom line in law has not gained widespread acceptance. Indeed, he later abandoned some of its (1984) (recanting "the whole idea of individualism and altruism"). I mean this last observation not as criticism, but as evidence against the supposition that legal thought "hit brass" in 1976. I likewise see little evidence that, in the ensuing years, a theory has emerged that is immune from being second-guessed on the same metric of hardheadedness that Kennedy invoked against Llewellyn, and that Llewellyn invoked against Holmes.
70. Contract law seems alive and well notwithstanding Gilmore's obituary. See Grant Gilmore, The Death of Contract 3 (1974). The deficiencies of efforts simply to reduce tort law to a system of efficient accident deterrence are profound.
71. See, e.g., Scott Hershovitz, Harry Potter and the Trouble with Tort Theory, 63 Stan. L. Rev. 67, 69-75 (2010) (arguing that accounts of tort as a scheme of efficient deterrence arbitrarily exclude consideration of a wide range of potential costs and benefits). In noting the deficiencies of this sort of effort at large-scale reductionism, I do not mean to denigrate the capacity of microeconomic analysis to illuminate private law. As noted below, one of the distinctive features of the New Private Law is its methodological catholicism.
72. See H.L.A. Hart, The Concept of Law 56-57, 75-76 (2d ed. 1994).
73. See generally Ronald Dworkin, Hard Cases, in Taking Rights Seriously 81 (1978).
74. See Ernest J. Weinrib, The Idea of Private Law 3 (1995) (emphasizing the longstanding suspicion of the idea of private law in American legal scholarship). I happily acknowledge that there are overlaps between, on the one hand, my diagnosis of the state of private law theory and my account of some of the tenets of the New Private Law and, on the other hand, Weinrib's critique of functionalist accounts of private law and his defense of an internal approach. Nonetheless, important differences remain. Most obviously-and most saliently for mainstream legal scholars in the United States-I am claiming for private law the mantle of pragmatism, rather than what Weinrib describes as "formalism, "
75. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913).
76. See Jules L. Coleman, Risks and Wrongs 299-302 (1992).
77. John Gardner, Obligations and Outcomes in the Law of Torts, in Relating to Responsibility111, 134 (Peter Cane & John Gardner eds., 2001).
78. John Gardner, Obligations and Outcomes in the Law of Torts, in Relating to Responsibility111, 134 (Peter Cane & John Gardner eds., 2001).
79. See John C.P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. Pa. L. Rev. 1733, 1777-98 (1998). As this observation implies, the same brass-tacks disposition that has fueled skepticism toward private law might well distort modern understandings of public law. I defer to scholars of public law on the extent to which it has done so and on whether there might be need of a new public law.
80. See John Finnis, Intention in Tort Law, in Philosophical Foundations of TortLaw 229, 233-37, 242-44 (David G. Owen ed., 1995).
81. See Arthur Ripstein, Force and Freedom 190-98 (2009).
82. The idea that pragmatism in thinking about law (and morality) comes in a more inclusive, less hardheaded guise is hardly new.
83. For recent thoughtful articulations, see Jules L. Coleman, The Practice of Principle 6 (2001) (outlining a pragmatist approach to legal theory).
84. Don Herzog, Cunning 12 (2006) (identifying a pragmatist sensibility with an antireductionist approach to practical reason)
85. Benjamin C. Zipursky, Pragmatic Conceptualism, 6 Legal Theory 457, 474-78 (2000) (arguing that conceptual analysis can figure centrally in pragmatist legal analysis).
86. It thus carries with it the same deflationary spirit one finds in coherentist approaches to political theory and practical reason. See, e.g., Michael Walzer, Spheres of Justice xiv (1983). See generally J.J.C. Smart & Bernard Williams, Utilitarianism: For andAgainst 77-150 (1973).
87. T.M. Scanlon, Rawls on Justification, in The Cambridge Companion to Rawls 139 (Samuel Freeman ed., 2003).
88. The ensuing discussion is somewhat tort centric, which reflects both my limitations and the extent to which tort, even more so than contracts and property, has been the victim of private law skepticism.
89. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913).
90. See William Twining, Karl Llewellyn and the Realist Movement 205-07 (1973).
91. In principle, this openness to criticism and revision includes an openness to the rejection of private law as a distinct category. Of course the upshot of this Introduction and this Symposium is that the reinvigoration of this category will help lawyers to better understand bodies of law such as contracts, property, and torts, and better understand the institutional environment in which they operate.
92. Stephen A. Smith, Duties, Liabilities, and Damages, 125 Harv. L. Rev. 1727 (2012).
93. For related arguments rejecting the idea that civil liability as imposed in U.S. courts amounts to the recognition of a genuine duty of repair, see Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91 Geo. L.J. 695 (2003).
94. Nathan B. Oman, Why There Is No Duty to Pay Damages: Powers, Duties, and Private Law (William & Mary Law Sch., Research Paper No. 09-112, 2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1906753.
95. A tort is a civil wrong, as opposed to a criminal wrong. John C.P. Goldberg & Benjamin C. Zipursky, The Oxford Introductions to U.S. Law: Torts 4-5 (2010). It is also a relational wrong, as opposed to a simple wrong.
96. A tort is a civil wrong, as opposed to a criminal wrong. John C.P. Goldberg & Benjamin C. Zipursky, The Oxford Introductions to U.S. Law: Torts 4-5 (2010). It is also a relational wrong, as opposed to a simple wrong.
97. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 124, at 916-19 (5th ed. 1984).
98. They did some of each. The loss of consortium action was retained, Dan B. Dobbs, TheLaw of Torts § 310, at 841-42 (2000), whereas the heart-balm torts have largely been eliminated, Id. § 442, at 1247.
99. They did some of each. The loss of consortium action was retained, Dan B. Dobbs, TheLaw of Torts § 310, at 841-42 (2000), whereas the heart-balm torts have largely been eliminated, Id. § 442, at 1247.
100. See generally Tunkl v. Regents of the Univ. of Cal., 383 P.2d 441 (Cal. 1963) (articulating public policy limits on the enforceability of otherwise valid waivers of liability).
101. Henry E. Smith, Property as the Law of Things, 125 Harv. L. Rev. 1691 (2012).
102. Henry E. Smith, Property as the Law of Things, 125 Harv. L. Rev. 1691 (2012).
103. See generally, e.g., Henry E. Smith, Community and Custom in Property, 10 TheoreticalInquiries L. 5 (2009).
104. Henry E. Smith, Intellectual Property as Property: Delineating Entitlements in Information, 116 Yale L.J. 1742 (2007).
105. Henry E. Smith, The Language of Property: Form, Context, and Audience, 55 Stan. L. Rev. 1105 (2003).
106. See, e.g., John C.P. Goldberg et al., Tort Law: Responsibilities and Redress(2d ed. 2008).
107. Thomas W. Merrill & Henry E. Smith, Property: Principles and Policies(2007).
108. See, e.g., Richard Brust, The High Bench vs. the Ivory Tower, A.B.A. J., Feb. 1, 2012, http://www.abajournal.com/magazine/article/the_high_bench_vs._the_ivory_tower/(quoting and discussing the Chief Justice's remarks: "Pick up a copy of any law review that you see... and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th century Bulgaria.... I'm sure [it] was of great interest to the academic that wrote it, but it isn't of much use to the bar" (alteration in original) (internal quotation marks omitted). Judge Edwards previously expressed similar sentiments in a published article. Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992).
109. It is too broad because there is plenty of relevant legal scholarship being published. It is too narrow insofar as it suggests that immediate relevance to practice should be the exclusive criterion against which to measure the worth of legal scholarship.
110. See Oliver Wendell Holmes, Jr., The Common Law 108 (45th prtg. 1923) (suggesting that legal fault is defined in a way that permits liability to attach even to individuals who lack the capacity to consistently act with sufficient care to avoid being deemed legally at fault).
111. For background on law and social norms, see generally Robert C. Ellickson, OrderWithout Law (1991).
112. Richard H. McAdams & Eric B. Rasmusen, Norms and the Law, in 2 Handbook of Law and Economics 1573 (A. Mitchell Polinsky & Steven Shavell eds., 2007). The sketch of law's interaction with social norms offered in this Introduction is artificially unilateral in focusing on ways in which private law's rules track social norms. A fuller account would need to consider the reciprocal impact of law on social norms.
113. Stephen A. Smith, Duties, Liabilities, and Damages, 125 Harv. L. Rev. 1727 (2012).
114. Of course, civil jury trials are a rarity relative to the number of civil complaints filed.
115. See E. Allan Farnsworth, Contracts § 7.14, at 476-79 (4th ed. 2004) (discussing circumstances in which questions of contract interpretation are left to the court or to jurors).
116. See Restatement (Second) of Torts § 285(d) (1965).
117. See, e.g., Robert L. Rabin, Pain and Suffering and Beyond: Some Thoughts on Recovery for Intangible Loss, 55 DePaul L. Rev. 359, 373 (2006) (noting jurors' "relatively unlimited discretion" to determine reasonable compensation for any given tort victim's intangible losses).
118. See Restatement (Second) of Contracts § 220 (1981).
119. See Restatement (Second) of Contracts § 220 (1981).
120. See Restatement (Second) of Contracts § 220 (1981).
121. See Benjamin C. Zipursky, Sleight of Hand, 48 Wm. & Mary L. Rev. 1999, 2033-40 (2007) (outlining a competency-based conception of ordinary prudence).
122. Restatement (Second) of Torts § 46 cmt. d.
123. See Charles Fried, Contract as Promise 85-91 (1981) (citing approvingly courts' application of the doctrine of good faith to avoid rewarding opportunistic behavior).
124. See Restatement (Second) of Torts § 164. The law does, however, ameliorate some of the potential harshness of such torts through its standards for issuing injunctions. See Douglas Laycock, The Neglected Defense of Undue Hardship (and the Doctrinal Train Wreck in Boomer v. Atlantic Cement), J. Tort L., Dec. 2011, art. 3 (reviewing decisions declining to issue injunctions that inflict undue hardship on the defendant).
125. See, e.g., Empro Mfg. Co. v. Ball-Co Mfg., Inc., 870 F.2d 423, 424-26 (7th Cir. 1989) (rejecting a prospective buyer's request for a temporary restraining order against a seller that would have rendered a letter of intent an enforceable contract in light of the parties' purported intent to be bound).
126. See, e.g., Shelley v. Kraemer, 334 U.S. 1, 20-21 (1948) (deeming judicial enforcement of racially restrictive covenants to violate principles of equal protection and thus denying to state and federal courts the power to enforce such covenants).
127. Stephen A. Smith, Duties, Liabilities, and Damages, 125 Harv. L. Rev. 1727 (2012).
128. Benjamin C. Zipursky, Palsgraf, Punitive Damages, and Preemption, 125 Harv. L. Rev. 1757 (2012).
129. Benjamin C. Zipursky, Palsgraf, Punitive Damages, and Preemption, 125 Harv. L. Rev. 1757 (2012).
130. Benjamin C. Zipursky, Palsgraf, Punitive Damages, and Preemption, 125 Harv. L. Rev. 1757 (2012).
131. See, e.g., BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 572 n.17 (1996).
132. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 265 (1964).
133. See John C.P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. Pa. L. Rev. 1733, 1777-98 (1998). As this observation implies, the same brass-tacks disposition that has fueled skepticism toward private law might well distort modern understandings of public law. I defer to scholars of public law on the extent to which it has done so and on whether there might be need of a new public law.
134. See James A. Henderson, Jr., Judicial Review of Manufacturers' Conscious Design Choices: The Limits of Adjudication, 73 Colum. L. Rev. 1531, 1537-38 (1973) (discussing how doctrine reflects judicial concerns for justiciability).
135. See, e.g., Riss v. City of New York, 240 N.E.2d 860, 860-61 (N.Y. 1968). The court in Riss cited deference to departmental decisionmaking as a ground for exempting a police department from liability for negligence in failing to take steps to protect the victim of a third party's attack, even though the victim had presented credible evidence to the police of being at risk of imminent attack by the eventual attacker.
136. See, e.g., Riss v. City of New York, 240 N.E.2d 860, 860-61 (N.Y. 1968). The court in Riss cited deference to departmental decisionmaking as a ground for exempting a police department from liability for negligence in failing to take steps to protect the victim of a third party's attack, even though the victim had presented credible evidence to the police of being at risk of imminent attack by the eventual attacker.
137. See, e.g., Strauss v. Belle Realty Co., 482 N.E.2d 34, 36 (N.Y. 1985) (citing public policy considerations as reasons to impose a "privity" limitation on liability for injuries caused by a utility's carelessness).
138. John Rawls, A Theory of Justice 3 (1971).
139. See, e.g., Ronald Dworkin, Constitutional Cases, in Taking Rights Seriously, at 131, 149 (arguing for a "fusion of constitutional law and moral theory" and suggesting that Rawls's work points the way forward for that endeavor).
140. Frank I. Michelman, The Supreme Court, 1968 Term-Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7, 14-15 (1969) (invoking Rawls's concept of justice as fairness in support of judicial recognition of a constitutional right to governmental assistance to protect against deprivations associated with poverty).
141. See, e.g., Ronald Dworkin, Law's Empire 301-09 (1986) (identifying a moral foundation for a cost-benefit conception of negligence and nuisance in the distributive-justice principle of equality of resources).
142. Cass R. Sunstein, Lochner's Legacy, 87 Colum. L. Rev. 873, 875 (1987) (arguing for the inversion of a claimed historical tendency among courts to treat common law distributions of entitlements as setting a neutral baseline against which to measure the constitutionality of legislation).
143. To be clear, I am not arguing that private law norms or principles should have lexical priority over public law norms or principles. As between them, there is an accommodation to be worked out that will at times be effortless and at other times be difficult.
144. Shyamkrishna Balganesh, The Obligatory Structure of Copyright Law: Unbundling the Wrong of Copying, 125 Harv. L. Rev. 1664 (2012). Tort law also attends to basic social virtues that do not reduce down to questions of distributive justice. One of its main points is to identify, articulate, and reinforce certain responsibilities that we owe to one another, responsibilities that are sensitive to distinct social roles and relationships and to the myriad ways in which persons interact with one another. In doing so, it helps achieve various goods, including the good of holding people accountable to one another.
145. See John C.P. Goldberg & Benjamin C. Zipursky, Accidents of the Great Society, 64 Md. L. Rev. 364, 388-92, 404-07 (2005).
146. Jason M. Solomon, Equal Accountability Through Tort Law, 103 Nw. U. L. Rev. 1765, 1794-97 (2009).
147. Benjamin C. Zipursky, Pragmatic Conceptualism, 6 Legal Theory 457, 474-78 (2000) (arguing that conceptual analysis can figure centrally in pragmatist legal analysis).
148. See, e.g., Louis Kaplow & Steven Shavell, Fairness Versus Welfare 3 (2002) (positing a fundamental conflict between welfarist and fairness-based approaches to legal analysis, and arguing for the superiority of the former).
149. John Rawls, Political Liberalism 145-48 (1996).
150. Shyamkrishna Balganesh, The Obligatory Structure of Copyright Law: Unbundling the Wrong of Copying, 125 Harv. L. Rev. 1664 (2012). Tort law also attends to basic social virtues that do not reduce down to questions of distributive justice. One of its main points is to identify, articulate, and reinforce certain responsibilities that we owe to one another, responsibilities that are sensitive to distinct social roles and relationships and to the myriad ways in which persons interact with one another. In doing so, it helps achieve various goods, including the good of holding people accountable to one another.
151. Shyamkrishna Balganesh, The Obligatory Structure of Copyright Law: Unbundling the Wrong of Copying, 125 Harv. L. Rev. 1664 (2012). Tort law also attends to basic social virtues that do not reduce down to questions of distributive justice. One of its main points is to identify, articulate, and reinforce certain responsibilities that we owe to one another, responsibilities that are sensitive to distinct social roles and relationships and to the myriad ways in which persons interact with one another. In doing so, it helps achieve various goods, including the good of holding people accountable to one another.
152. Stephen A. Smith, Duties, Liabilities, and Damages, 125 Harv. L. Rev. 1727 (2012).