Law in Contemporary Society

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ThoughtsonHolmesCalabresi 6 - 30 Jan 2009 - Main.EbenMoglen
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-- KahlilWilliams - 27 Jan 2009 In the Path of the Law, Justice Holmes distills the calculation of damages in tort law down to a calculation of “how far it is desirable that the public should insure the safety of one whose work it uses.” His analysis forecasts the work of scholars like Guido Calabresi, a 2nd Circuit Judge and Yale Law Professor, whose theory of the “cheapest cost avoider” takes much the same tack. Calabresi’s theory assigns liability by weighing the relative cost of each person exercising an additional unit of caution: the actor who can do so more cheaply (in a BPL context, the one with the smaller “B”) is assigned liability.
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 Kahlil Williams - 1.27.2009
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 You seem to have nicely anticipated Frank here. I think he'd agree that the BPL formula is an illusory facade of logic over a messy fact-finding process. In fact, it's the perfect example of empty legal logic: the terms mean nothing until filled in by case-dependent facts. And the formula itself gives no guidance for how to conduct the fact-finding process. Everything that is essential is hidden, while the insubstantial is paraded around as a ground-breaking rationalization of law.

But lawyers also know how much the BPL formula hides and continue to find it helpful on some level. Is it because they don't know any better, and are truly deluded into thinking that the formula encapsulates useful operational logic? Probably not. Rather, we can use the formula to frame the types of questions to ask and factual investigations to conduct. In this way, the formula is a starting point for a deeper inquiry and not just a way to plaster over important factual questions in a judicial opinion.

Gavin Snyder - 1.29.2009

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  • I think this comment makes good points, Gavin, which are easier to read if not typeset so as to induce seasickness. Not the first time Javascript ever made me want to barf, I admit, but still.....

 
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Revision 6r6 - 30 Jan 2009 - 04:30:07 - EbenMoglen
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