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.
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Mediating Rules in Criminal Law
This article challenges the conventional divide between substantive criminal law theory, on the one hand, and evidence law, on the other, by exposing an important and unrecognized function of evidence rules in criminal law. Throughout the criminal law, special rules of evidence work to mediate conflicts between criminal law’s deterrence and retributivist goals. They do this by skewing errors in the actual application of the substantive criminal law to favor whichever theory has been disfavored by the substantive rule itself. The mediating potential of evidentiary rules is particularly strong in criminal law because the substantive law’s dominant animating theories – deterrence and retributivism – respond asymmetrically to the workings of those rules. We analyze the features of “mediating rules,” explore their effects across a range of substantive areas, and offer a tentative normative assessment of their role in the criminal law system.
Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty
Direct relations between the federal government and local governments—what this article calls “cooperative localism”—play a significant and underappreciated role in areas of contemporary policy as disparate as homeland security, law enforcement, disaster response, economic development, social services, immigration, and environmental protection. Despite the ubiquity of this practice, a jurisprudential conflict threatens this important facet of intergovernmental relations. Historically, courts have allowed local governments to invoke federal authority as a source of local autonomy, despite the prevailing view of local governments as powerless instrumentalities of the state. The Supreme Court is increasingly suggesting, however, that state control over local governments is a fundamental aspect of state sovereignty triggering judicial limits on federal power. When this confrontation comes to a head, limiting federal authority to empower local governments would be a mistake. This article instead proposes a new framework for conceptualizing federal empowerment of local governments that is not only consistent with the Court’s contemporary view of federal structure, but in fact advances the Court’s normative and pragmatic goals. The core concerns animating the Court’s current move to devolve and decentralize power are forcefully served by enhancing the autonomy of local governments in the constitutional structure. In short, the very values of federalism on which the Court has relied to enhance state sovereignty provide a compelling localist grounding for the particular exercise of national power represented by cooperative localism.