Monthly Archives: June 2020

Mischief and Snap Removal

Samuel L. Bray, The Mischief Rule, 109 Geo. L.J. ___ (forthcoming 2021), available at SSRN.

Civil Procedure may mark 1Ls’ first encounter with statutes and judicial interpretation and elaboration of statutory text. Some of the provisions in the canon are barebones to the point of meaningless without judicial elaboration— “short and plain statement of the claim” or a corporation’s “principal place of business” have no obvious meaning. Other statutes and rules are more substantial and allow for deeper textual parsing. Either way, statutory analysis remains an essential component of the study of courts law.

Samuel Bray’s The Mischief Rule reconsiders one rule of statutory interpretation that “instructs an interpreter to consider the problem to which the statute was addressed, and also the way in which the statute is a remedy for that problem.” The mischief rule asks what evil or danger a statute intended to cure and how it remedies that evil or danger. While the rule dates to Elizabethan times, it is misunderstood by defenders and critics. Bray resituates the rule as a tool for all interpretive methodologies. Continue reading "Mischief and Snap Removal"

Taking A Lesson From Uncertainty

Tom Baker, Uncertainty > Risk: Lessons for Legal Thought from the Insurance Runoff Market, 61 B.C. L. Rev. __ (forthcoming 2020), available at SSRN.

The received wisdom is that insurance can function well in a world of “risk” – the determinable probability of loss —  but that insurance can function only poorly, or not at all, in the face of “uncertainty” – the indeterminate probability of loss. This received wisdom colors a lot of thinking, and judicial decision-making, about any number of policy problems, perhaps most prominently about the proper scope of tort liability. If the threat of liability cannot be reduced to a particular probability, the thinking goes, then it will be difficult or impossible to insure against, and part of the point of tort liability, to encourage spreading the risk of loss, will be undermined.

Tom Baker has pioneered the use of qualitative empirical research to shed light on issues in torts, insurance, and insurance law. In this Article, he employs empirical research to call into question the received wisdom regarding the capacity of insurance to function in the face of uncertainty. In an impressive combination of thick description and theoretical insight, he shows how the phenomenon of the insurance “runoff” has been able to function, with increasing frequency and effectiveness, despite the fact that its fundamental purpose is to insure uncertain probabilities of loss. Continue reading "Taking A Lesson From Uncertainty"

Who Should Be Liable When Uber Cars Crash?

Omer Y. Pelled, The Proportional Internalization Principle in Private Law, 11 J. Legal Analysis 161 (2019).

One of the most challenging questions for present day tort law is who should be liable when an Uber car crashes and a passenger or a pedestrian is hurt, the driver or the platform? Similar legal dilemmas arise all over the platform economy. When a defective product sold by a vendor through Amazon’s Marketplace malfunctions or causes personal injuries, can the platform be held liable as a “seller”?

An entirely separate question has for long haunted contract law: should a party be held liable for abandoning negotiations prior to the formation of a contract, if it can be shown that the other party sunk non-salvageable investment in the course of the negotiations? Most courts say no, but in some notable exceptions courts have awarded the disappointed party it full reliance costs. Is this the right result?

These two seemingly unrelated puzzles have recently received a unified and persuasive theoretical treatment in Omer Pelled’s excellent article, The Proportional Internalization Principle in Private Law. Pelled argues that one underlying principle ought to shape the answer to these problems. He regards these as two illustrations of a general problem arising in multi-party interactions: How to apportion liability when the actions of one party, which caused the loss, benefitted others. The principle Pelled uncovers—“proportional internalization”—works by ensuring that each party internalizes an identical proportion of the costs and benefits. Continue reading "Who Should Be Liable When Uber Cars Crash?"

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