April 7, 2009
Duty: How Would A Pluralist Approach Really Work?
During the panel on Duty at the ALI Conference on the Restatement (Third) of Torts last week, several commentators and audience members questioned how courts would weigh the competing values (economic factors and corrective justice factors) under a pluralist view.
I use a modified version of Ronald Dworkin’s theory of “law as integrity” to construct an elaborate and structured methodology for analyzing hard duty cases. In fact, I spend an entire chapter (or Part in the online draft) applying the proposed methodology to a recent duty case decided by the Supreme Court of New Jersey and demonstrating the methodology’s advantages over existing multifactor approaches, including the one suggested by R3.
In a follow-up piece, "The Instrumental Justice of Private Law," Calnan examines "the relationship between justice and instrumentalism, and offer[s] a theory for integrating these seemingly opposed concepts in duty cases and beyond."
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