Legal Theory Blog

All the theory that fits.

New Papers on the Net

New Papers on the Net
Here is the roundup:

    From SSRN:

      Costas Douzinas (University of London) uploads Identity, Recognition, Rights or What Can Hegel Teach Us About Human Rights?, forthcoming in the Journal of Law and Society.
      Catherine M Sharkey (Columbia) posts Punitive Damages As Societal Compensatory Damages, forthcoming in the Yale Law Journal. Here is the abstract:

        The jury’s award of “classwide” punitive damages as a windfall to a single plaintiff, particularly in product liability, fraud, civil rights, and employment discrimination cases, suggests a new angle for approaching the ongoing punitive damages debate. Such classwide assessment of widespread public harms has proceeded under the guise of retributive punishment – the traditional justification for punitive damages – bypassing class action procedural requirements and unjustly enriching the plaintiff. In the wake of the Supreme Court’s admonition in State Farm that such a practice violates due process by exposing defendants to the risk of “multiple punitive damages awards for the same conduct,” the Article proposes a new category of compensatory societal damages for redress of third-party and societal harms. Hitherto subsumed within punitive damages, damages for specific harms to third parties and more diffuse harms to society are actually compensatory (as opposed to punitive) in nature, and should, once assessed, be distributed by legislatures, courts, and juries accordingly. Drawing upon heretofore unconnected trends in punitive damages and class action torts cases, and state-level legislative and judicial innovations with “split-recovery” schemes for punitive awards, the Article explores various mechanisms for transforming punitive damages into societal damages, including the formation of an “ex post class action” at the remedial stage. The theory of compensatory societal damages – whether or not embraced by legislatures and courts – reveals more clearly the tradeoffs in transforming the doctrine of punitive damages to achieve the compensatory and deterrence goals of the tort system.

      Bruce Owen (Stanford University, Institute for Economic Policy Research) posts Regulatory Reform: The Telecommunications Act of 1996 and the FCC Media Ownership Rules, forthcoming Law Review of Michigan State University-Detroit College of Law.
      Richard Nobles and David Schiff (London School of Economics) post The Right to Appeal and Workable Systems of Justice, forthcoming in the Modern Law Review. From the abstract:

        This article explores the practicalities of a right to appeal. Appeals and appeal systems are usually conceived of in terms of a top-down hierarchy, with appeals functioning as an instrument for superior bodies to correct the decisions of and otherwise to control inferior ones. A fuller appreciation of systems of appeal places at least equal weight on the need for appeal bodies to establish stable, workable relationships with the bodies which they supervise. The need for any appeal system to sustain a workable system of justice refocuses attention from hierarchical control to problems of deference by the superior bodies towards the inferior ones. This way of looking at appeals has the potential to illuminate many recent developments, and can be illustrated by describing recent reforms and reform proposals to both civil and criminal justice.

    Ariel Porat writes that there is a new issue of Theoretical Inquiries in Law up. Here are the new papers:

    From online papers in philosophy:

      Pekka Väyrynen (Davis, Philosophy) posts Usable Moral Principles:

        A central adequacy constraint on moral theories is that they be usable in moral reasoning as guides for action. This paper addresses the challenge to moral generalism that moral principles are useless in finding out which are the right actions. I argue that the usability constraint is best seen as grounded in the importance of certain forms of autonomy and justice, and draw on the argument both to provide a reasonable interpretation of the constraint and to characterize the sort of agent by reference to whom the usability of generalist theories is appropriately assessed. In a slogan, I propose that moral principles guide us by structuring our responsiveness to reasons in certain ways. In being responsive to moral reasons, the relevant test agents are guided by the principles they endorse in that they reason in light of their understanding of those principles. To show that it is possible for normal moral agents to be such agents, I address objections from the psychology of moral reasoning. This gives me enough to conclude that generalist moral theories satisfy the usability constraint. I finish by arguing that generalist theories are at least no worse off than their particularist rivals with respect to the constraint.
Lawrence Solum

Recent Posts