Under the conventional tort law paradigm, a tortfeasor behaves unreasonably when two conditions are met: the tortfeasor could have averted the harm by investing in cost-effective precautions and failed to do so, and other, more cost-effective precautions were not available to the victim. Torts scholarship has long argued that making such a tortfeasor responsible for the ensuing harm induces optimal care. This Article shows that by applying the conventional analysis, courts create incentives for opportunistic investments in prevention. In order to shift liability to others, parties might deliberately invest in precautions even where such investments are inefficient. The Article presents two possible solutions to the problem. By instituting a combination of (1) broader restitution rules and (2) an extended risk-utility standard, legislators and judges can reform tort law to discourage opportunistic precautions and maximize social welfare.
“The Dean of Chicago’s Black Lawyers”: Earl Dickerson and Civil Rights Lawyering in the Years Before Brown
Rethinking Ableman v. Booth and States’ Rights in Wisconsin
Ableman v. Booth occupies a significant place in constitutional history for upholding the Fugitive Slave Act of 1850 and presenting the antebellum Supreme Court’s theory of federalism. This Note presents a new interpretation of the states’ rights movement in Wisconsin that necessitated the Supreme Court’s ruling in Ableman and argues that, viewed in this historical context, the decision was a complete failure. When a fugitive slave was captured in Milwaukee, Wisconsonites wished to reject the principles of the Fugitive Slave Act in response to the Kansas-Nebraska Act but were not yet willing to violate the law. The Supreme Court of Wisconsin enabled social change by providing the people with states’ rights as a legal basis to reject the Fugitive Slave Act. Federal attempts to vindicate the Fugitive Slave Act, culminating in Ableman, created a backlash that transformed states’ rights into a popular movement. Party politics exacerbated this backlash, as Republicans opportunistically used states’ rights against the more moderate Democrats. As a result, states’ rights controlled every major election in Wisconsin and nearly precipitated a civil war. Moreover, Ableman nearly pushed other states to use states’ rights to challenge the federal government, as national antislavery leaders hoped to use the theory for their own goals. Conflict was averted only because the theory became inconvenient for Republicans in the 1860 presidential election, not because of federal coercion resulting from Ableman.