Jules Coleman | New York University (original) (raw)

Many people have given us helpful written comments. We are especially grateful to Gregory Keating... more Many people have given us helpful written comments. We are especially grateful to Gregory Keating for convincing us we did not mean some of the things that we had said about strict liability in earlier versions.

Guido Calabresi's The Costs of Accidents' is unquestionably the most important book written in to... more Guido Calabresi's The Costs of Accidents' is unquestionably the most important book written in tort theory during the past fifty years. Much of what has been written since the book's publication either extends Calabresi's insights or reacts critically to them; some essays do a bit of both. Its lessons are by now so absorbed as to constitute part of the common understanding of the subject. The Costs of Accidents not only provides the intellectual framework within which the current debate occurs, but the language in which it is expressed as well. In time, the expression "cheapest cost avoider" will no doubt find its way into the Italian translation of the Oxford English Dictionary and may even appear someday as an entry in the Authorized Version. The Costs of Accidents has redefined both tort law and tort theory-often, but not always, for the betterment of each. The primary aim of law is to regulate conduct through normsusually rules-that create reasons, grounds, or warrants for action. Many of these reasons take the form of rights, privileges, and liberties on the one hand, and duties and other encumbrances on the other. Arguably, both the laws of tort and crime impose duties or prohibitions on agents, whereas the law of contract confers powers on individuals to create legally enforceable rights and duties. To be sure, we can imagine certain acts currently proscribed by statute no longer being criminalized, and others not currently prohibited by law coming to be proscribed. Still, it is difficult to imagine a legal regime that does not include a criminal law, that is, a body of law designed to prohibit certain conduct and to hold those who fail to comply with its demands liable to punishment-state imposed hard treatment consisting primarily of the loss of liberty and assorted legal rights. In contrast to the criminal law that imposes duties, contract law confers powers. In particular, it empowers individuals to create a le

... Coleman claims that corrective justice stands (metaphorically) between our practices of tort ... more ... Coleman claims that corrective justice stands (metaphorically) between our practices of tort law and abstract principles of fairness ... defending conceptual analysis, Coleman is committed to the project of identifying apriori the "thinnest" conceptions of our concepts that answer ...

This article argues that the problems of corrective and distributive justice are, at bottom, the ... more This article argues that the problems of corrective and distributive justice are, at bottom, the same. The authors argue that both can be understood as responses to the question: who owns which of life's misfortunes? Two extreme but unattractive positions set the range of possibilities. All misfortunes could be left where they fall, or all could be held in common. Neither extreme is attractive, because neither has room for the intuitive idea of responsibility, that is, that people should bear the costs of their activities. Libertarians try to incorporate that idea by adding a rule of strict liability for injuries as an exception to a general rule that injuries should lie where they fall. Liberal egalitarians seek to make room for responsibility by supposing that all misfortunes should be held in common except those to which people willingly expose themselves. The authors argue that the libertarian and the egalitarian employ parallel strategies, neither of which can succeed, beca...

U. Pa. L. Rev., 1993

Since the 1970s, analytic jurisprudence has been under attack from what has come to be known as t... more Since the 1970s, analytic jurisprudence has been under attack from what has come to be known as the Critical Legal Studies (" CLS") movement. CLS has been joined in this attack by proponents of FeministJurisprudence, and, most recently, by proponents of Critical Race Theory. When the battle lines are drawn in this way, the importance of the distinctions between the Natural Law and Positivist traditions are easily missed. Whatever distinguishes Hart from Dworkin, and both from Lon Fuller, matters very little from this point of view, as ...

The earlier versions of this article were presented at the University of Virginia and at conferen... more The earlier versions of this article were presented at the University of Virginia and at conferences on Norms (in Delaware), Legal Liability (at Bowling Green State University), and the Calculus of Consent (at Santa Cruz). The article benefited from comments made on every such occasion. The authors are especially indebted to Alan Schwartz and Randy Barnett for comments, criticisms and suggestions on earlier drafts. The authors would also like to acknowledge support provided by the following grants: Guggenheim Foundation Fellowship (Coleman); George A.

Accidents occur; personal property is damaged and sometimes is lost altogether. Accident victims ... more Accidents occur; personal property is damaged and sometimes is lost altogether. Accident victims are likely to suffer anything from mere bruises and headaches to temporary or permanent disability to death. The personal and social costs of accidents are staggering. Yet the question of who should bear these costs has turned the heads of few philosophers and has occasioned surprisingly little philosophic discussion. Perhaps that is because the answer has seemed so obvious; accident costs, at least the nontrivial ones, ought to be borne by those at fault in causing them.' The requirement of fault at one time appeared to be so deeply rooted in the concept of personal responsibility that in the famous Ives 2 case, Judge Werner was moved to argue that liability without fault was not only immoral, but also an unconstitutional violation of due process of law. Al

Law and Economics an Anthology 1998 Isbn 0 87084 208 0 Pags 477 481, 1998

Conversational literacy in neoclassical welfare economics is an apparent prerequisite to gainful ... more Conversational literacy in neoclassical welfare economics is an apparent prerequisite to gainful employment in American law schools. Loose talk of efficiency, cost-minimization, and the liability rule/property rule distinction punctuates faculty lounge discussions. There is simply no denying that the new law and economics has arrived. So it is a fond (if only temporary) farewell to Rawls and Nozick, and a warm welcome to Coase, Pigou, Calabresi, and Posner. The new law and economics is not without critics, however. There is a growing literature which represents the view that law and economics ought to be relegated to a suitable place in the history of intellectual fads-the sooner, the better. Much of what has been written against law and economics, however, is based on unsympathetic, insensitive, and largely superficial understandings of the central works in the field. Unfortunately, much of what is written in the name of law and economics is equally insensitive to the limits within which economic analysis might prove fruitful. As unsound criticisms and unwarranted extensions of the economic approach to law mount, the time appears ripe for an examination of its analytic framework. Three distinct but related activities fall within the domain of law and economics: two of these are analytic in nature, one is normative. Analytic law and economics may be either descriptive or positive. Descriptive law and economics is concerned with the principle of economic efficiency as an explanatory tool by which existing legal rules and decisions may be rationalized or comprehended. Richard Posner's * An earlier version of this Article was entitled "The Philosophic Foundations of the Economic Approach to Law: Coase, Kaldor-Hicks and the Auctioning of Entitlements," and was cited accordingly. The author received numerous helpful comments on preliminary drafts. So useful were the comments that by incorporating them into the final draft, it was no longer clear to the author that he was working on the same paper. Consequently, the name has been changed to

he purpose of this paper is to explore the relationship of philosophy to law: to acquaint the rea... more he purpose of this paper is to explore the relationship of philosophy to law: to acquaint the reader with the subject matter of legal philosophy by explaining what in law attracts the ohilosophic mind and how philosophic investigation of the law may inform both disciplines. These brief remarks should not be construed as exhaustive. Indeed, philosophy of law has changed so in method and substance in the last few years that any attempt to define its boundaries at this time would no doubt prove at a later date to be a source of embarrassment. In what follows I wil1 discuss some of both the traditional and more recent concerns of legal philosophy. In doing so, I hope to shed at least indirect light on the role of philosophy in academic legal studies programs. Of all academic disciplines, philosophy is perhaps the most fundamental. By that I mean that philosophy is concerned with the conceptual foundations, the building blocks, of our claims about the world in a way in which other disciplines are not. The point is illustrated best by the very subject matter of the traditional areas of philosophic inquiry. The domain of epistemology, the theory of knowledge, for example, is marked by two questions: (1) What do we know? and (2} How do we come to know it? What distinguishes the individual who knows

* I would like to thank Mark Kaplan for his help on the question of whether individuals making a ... more * I would like to thank Mark Kaplan for his help on the question of whether individuals making a social choice would opt to maximize wealth via applications of the Kaldor-Hicks criterion.

Kadish Center For Morality Law Public Affairs, Aug 18, 2008

U. Pa. L. Rev., 1993

Law and Economics an Anthology 1998 Isbn 0 87084 208 0 Pags 477 481, 1998

Kadish Center For Morality Law Public Affairs, Aug 18, 2008