PHIL 345: Midterm Part II (Civil Law: Property, Torts and Contracts)

What were arguments expressed in the dissenting judicial opinions in the Williams case?

(Danaher) The dissent held Williams accountable to the terms of the contract. Danaher stated that there was no finding of sharp practice, "Rather the appellant seems to have known precisely where she stood". According to the dissenting opinion, Williams should have asked for clarification before signing the contract if she did not understand it. By signing the contract, she agreed to the terms, regardless of whether or not the terms were fair. When she signed that contract, she bound herself to it.

What was the legal question in the Tarasoff case?

Did Defendants owe a duty to the victim thus making them liable for the harm that ensued?

For Wertheimer, why do unconscionability cases tend to focus on terms rather than price?

1. Because price is a continuous variable whereas monetary terms have a binary quality making it easier to make judgements. 2. Although a price may be exorbitant, it does not typically establish an oppressive relation that endures over times. Some contractual terms just establish relations. 3. There may be more explicit bargaining over price than over terms.

What is Hart and Honore's main argument/general account in "Causation and Responsibility"?

1. Generally, the intervention of a voluntary act or a conjunction of events amounting to coincidence in the causal chain operates as a limit on our notion of cause, in the sense that events subsequent to these are not attributed to the antecedent action or event as its consequence even though they would not have happened without it. Some examples: a. Forest fire cases: the breeze necessary to cause the fire is not an "intervention" or a coincidence - rather, it is a "mere circumstance" or "mere condition" "'through' which we trace" the events. However, the presence of another agent fanning the flames, or pouring gasoline on them (if it is a necessary condition for the fire), does constitute a voluntary intervention sufficient to break the causal chain, regardless of the intentions of the original agent. b. The breeze seems to count as a background "condition" or "circumstance" in part because it is a common and pervasive feature of the environment. However, Honore and Hart seem to think that even unlikely background conditions will not break the causal chain in the necessary way (e.g., the eggshell skull case - also, getting into a fistfight with a person with a heart-condition). Here, Honore and Hart point to the fact that courts routinely treat such cases differently from cases in which the unlikely contributing factor was an event as opposed to an abnormal prior condition that was part of the "stage already set" before the act.

What are some exception to Hart and Honore's general account?

1. Opportunities: "The discrimination of voluntary interventions as a limit is no longer made when the case, owing to the commonness or appreciable risk of such harmful intervention, can be brought within the scope of the notion of providing an opportunity, known to be commonly exploited, for doing harm." • One question we will ask ourselves in this context is whether the likelihood of the intervention's occurring is high enough to render the behavior of the original agent negligent. (Is this putting the cart before the horse? After all, aren't we looking at cause in part to determine negligence?) 2. Reasons: Even a fully voluntary intervention may not "break the causal chain" in the way we have been describing if the first agent gave the second good reason (by bribing or advising or persuading him to act) to intervene. (Here, we naturally speak of A's "procuring" or "inducing" B's act.)

As said by Wertheimer, what are the normative upshots of inequalities of bargaining power?

1. We need a moral principle of fair division. Unless we can say something about how the surplus ought to be divided, we cannot say that an agreement is morally one sided however unequal the distribution may appear to be. 2. There is no reason to think that a rational choice solution to the bargaining problem provides us with the best principle of fair division. 3. There are no unproblematic solutions to the normative problem. Two principles to possible consider: a. Equal utility gain as a moral principle but equal utility may well prescribe exactly the sorts of distributions that motivated the concern with inequality of bargaining potential. b. The proportionality principle that asserts that the cooperative surplus in proportion to the contribution of individualism. Nevertheless, this raises concerns on how to measure a party's contribution. 4. The problem of background endowments. Even if parties abide by reasonable principles of fair division, the resulting bargain may be unjust if the background conditions are unjust. 5. A bargain resulting in an unjust distribution does not entail that we should prevent such injustices from occurring. A is under no moral requirement to provide improvement for A so contract law should uphold bargains that result from inequalities of bargaining potential.

According to A.J. Simmons, what is a particularized share?

A particularized share is a right to a certain-sized share of a particular set of holdings -- namely, to a share of the holdings of the wrongdoer.

According to Fried, how do we reduce the force of a promise to a moral category?

A common way to reduce the force of a promise to a moral category is by invoking the harm you suffer in relying on my promise. Promises invite reliance and we intend the promisee to rely on the promise. A promise also invokes trust in my future actions not merely my present sincerity.

What was the synopsis of rule of law in the Tarasoff case?

A defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks that make the conduct unreasonably dangerous. When the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, liability is imposed only if the defendant bears some special relationship to the dangerous person or to the potential victim.

How does Feinberg define a fault?

A fault is a shortcoming or failure to conform to some norm or standard. To be a fault, a defective property must be sufficiently durable, visible and potent to tell us something interesting about its possessor. Human faults are latencies that manifest themselves only under special circumstances. • The concept of a fault has a close relation to harm but it would be an overstatement to say all human faults create the risk of harm. (i.e. displeasure).

According to Feinberg, what is the tri-conditional analysis?

A harm is "his fault" if and only if (1) he was at fault in acting or omitting, (2) his faulty act (or omission) caused the harm and (3) the aspect of the act that was faulty was also one aspects in virtue of which the act was a cause of the harm. Respectively, these are the fault condition, the causal condition and the causal relevance condition.

What is a harm?

A harm is a reduction or a loss of a person's wellbeing. Nevertheless, not all harms are wrongs. Harm can be caused by an actor but there can be instances where no one is liable or legally at fault. Therefore, one can be harmed without anyone at fault and someone causing harm is not sufficient for him or her to be at fault.

To Feinberg, what is the purpose of a causal citation?

A judgement that cites one of the numerous eligible causal condition for an event as "the cause" is the causal citation. The point of a causal citation is to (1) single out one of the certified causal candidates that us interesting to us.

To Waldron, what is the difference between a socialist system and a system of private property?

A socialist system, much like a system of private property, is a system of rules governing access to and control of material objects. A case of private property, however, must relate to what is distinctive about this type of system and not merely to the concept of property rules.

How can torts be percieved?

A tort expresses an insight or stance that law has a vital role to play in promoting a certain kind of social good which is to say that the social good that arises when people in their activities, act in ways that are mindful of the duties of care that we owe to each other by virtue of belonging to same community.

How does liability come into play with torts?

A tort is a finding of wrongful harm. This indicates liability or legitimate demand to compensate. The compensation's purpose is to offset for the injury. Liability flows from the tortfeasor or agent who conducted harm. The tortfeasor is liable because the tortfeasor is at fault.

According to Wertheimer, what does a valid contract require?

A valid contract requires: (1) parties with capacity, (2) manifested assent and (3) consideration. Common law defenses focus on process rather than substance. • Capacity and assent refers to process criteria, "consideration has to do with substance. Consideration must flow between the parties to establish an agreement or exchange.

What is the purpose of Jules Coleman's account in "Tort Liability and the Limits of Corrective Justice?

Coleman wants to make sense of the following claims: 1. Many of the important rights and duties sustained in tort law are justifiable departure's from tort law's corrective justice core. 2. The extent to which corrective justice as a moral principle creates reasons for acting in a community depends on the nature and scope of non-moral, including legal, practices.

What is Nozick's entitlement theory?

According to Nozick's entitlement theory: 1. A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding 2. A person who acquires a holding in accordance with the principle of justice in transfer from someone else entitled to the holding is entitled to the holding. 3. No one is entitled to a holding except by (repeated) applications of 1 and 2. The complete principle of distributive justice would say simply that a distribution is just if everyone is entitled to the holdings they possess under the distribution.

Why is Dworki's 'common sense' view in Law's Empire incorrect?

Dworkin's "common sense" view is incorrect. The evidence he provides is that legal practitioners do not think this. There are other sources of law in a common law system: there is statutory law and legal precedent. Legal precedent refers to how courts have interpreted statutory laws in the past. Another difference between civil law and common law is how they weigh their sources.

According to Wertheimer, what is the difference between bargaining ability and bargaining potential?

Bargaining ability is a function of one's personal characteristics and bargaining potential is primarily a function of one's external resources or circumstances.

What is Dworkin's controversial argument in "Law's Empire"?

Dworkin's controversial argument in Law's Empire: legal interpretation breeds 'right' answers. Dworkin says that in order to interpret statutes constructively, we must know what law is and what its end is. He says that law is a way of limiting and directing the coercive power that the state may use on its citizens according to rights and duties that have flown from previous political decisions. Dworkin thinks that if judges judge with integrity, they will be able to weight different principles of law differently. The judges will also get how to weight them in the way that makes the 'right' interpretation come forward.

In what ways can we define torts?

Because we live in a common law system, it is difficult to define what a tort is. There are a couple of ways to understand it, however: 1. A tort can be defined as a non-criminal harmful wrong. a. Tort law has developed as common law and developed through case law, precedent and judicial decisions, and past legal principles used in English and American common law. Torts can be based upon things that people did. b. Tortious negligence is a legal term referring to omissions that led to specific wrongful harms to other people. The idea of actions and omissions being legally harmful and having grounds for liability can be traced back to the core social meaning that underlies torts as a crucial area of civil law. c. Torts are wrongs that in one way or another express a lack of sufficient care or caution about the wellbeing of other people. Torts are not crimes in the sense that they are not situations where someone has acted deliberately in ways that harm people.

According to Feinberg, how can blamng citations be interpreted?

Blaming citations can be interpreted as (1) that a person's act was the cause of the harm. The second interpretation (2) separates cause from fault and asserts the propos (truth of the citation). The results are established independently.

What is the legal question/issue in International News Service v. Associated Press?

Can the INS be lawfully restrained under theories of interference with the complainant's property rights in the news and unfair competition, from appropriating news taken from bulletins issued by the complainant or any of its members, or from newspapers published by them, for the purpose of selling it to Defendants' clients?

What is carelessness and heedlessness according to Feinberg?

Carelessness or clumsiness is when one creates a risk precisely in virtue of not paying sufficient attention to what one is doing. Heedlessness is when the risk is already there in the objective circumstances but unperceived or mindlessly ignored.

What are 'but-for' arguments?

Causality is a term misused. In the language of tort law, "but for" arguments are used to express necessary conditions. "But for A's act, there would be no harm." That is one way to make a determination about cause. The "but for" test is too broad as pointed out by Honore and Hart.

Why is the state's duty to balance the risk imposed on people by someone and the person who is harmed?

Complex societies introduce different kinds of reasons. The state is just one of many agencies that are in the business of risk management. There are also firms who spend resources at risk abatement because they want their product to sell.

What were the arguments made in the dissenting judicial opinions of INS v. Associated Press?

Concurrence (Holmes): (1) There is no property interest in (uncopyrighted) news; (2) misrepresentation is unfair trade because "it tends to give the defendant an advantage in his competition . . . and it is thought to be undesirable that an advantage should be gained in this way." (247); (3) making the representation that plaintiff's product is defendant's is, likewise, unfair competition; (4) this misstatement "can be corrected by stating the truth; and a suitable acknowledgement of the source is that entire plaintiff can require." (248) Dissent (Brandeis): Justice Brandeis took issue with the Court's creation of a new proprietary interest in "hot" news and said it was an issue best dealt with by the legislature. (1) The sweat of the brow argument that the majority espouses is not sufficient to lead to an injunction against INS' collection and subsequent distribution of news from bulletin boards and early editions of newspapers; (2) "The general rule of law is, that the noblest of human productions-knowledge, truths ascertained, conceptions, and ideas -become, after voluntary communication to others, free as the air to common use."(250). (3) Brandeis sees the court's decision as broadening unfair competition.

According to Wertheimer , how is contract law justified?

Contract law can be justified in two ways: (1) by facilitating individual autonomy or freedom. To be autonomous is to be able to plan one's own life, including the ability to form binding relationships with others, an ability to form binding relationships with others. (2) Contract law can also be justified in consequentialist or utilitarian terms, promotion of social utility as individuals are allowed to put their resources to more valued uses.

According to Coleman, what is the corrective justice theory?

Corrective justice theory is the most influential non-economic perspective on tort law. It understands tort law as embodying a system of first- and second-order duties. • Duties of the first order are duties not to injure. These duties establish norms of conduct. (Some theorists believe that corrective justice has nothing to say about the character of these norms; others think that it helps define their scope and content.) • Duties of the second order are duties of repair. These duties arise upon the breach of first-order duties. That second-order duties so arise follows from the principle of corrective justice, which says that an individual has a duty to repair the wrongful losses that his conduct causes. o For a loss to be wrongful in the relevant sense, it need not be one for which the wrongdoer is morally to blame. It need only be a loss incident to the violation of the victim's right not to be injured — a right correlative to the wrongdoer's first-order duty not to injure.

According to Hart and Honore,for which consequences of our actions, broadly understood, should be identified as the case, in a responsibility-implying sense?

Every practical purpose which pushes us to identify a cause, including but certainly not limited to the law, will carry with it implicit limits on what we will count as a cause or a consequence: e.g., explaining perplexing occurrences, attributing legal or moral responsibility, assessing contributions to the course of history...

According to Joel Feinberg, fault occurs in what three idioms?

Fault occurs in three idioms: A man has (1) a fault, or that (2) he is or was at fault or that he is "to blame" for a given harm, which is to say that (3) the harm is or was his fault.

Can we be properly legally punished only for harms/risks of harm for which we are also morally responsible? How do Hart and Honore answer?

Hart and Honore's answer: The fact that individuals have a type of connection with harm, which is adequate for moral censure or claims for compensation, is only one of the factors, which the law much consider, in defining the kinds of connection between actions and harm for which it will hold individuals legally responsible.

According to A.J. Simmons, what is the difference between historical arguments and end-state arguments?

Historical arguments maintain that whether or not a holding or set of holdings is just (that is, whether or not we are entitled to or have a moral right to our holdings) depends on the moral character of the history that produced the holdings. Proponents of this view believe we must assess how holdings actually came about in order to know who has a right to what. End-state arguments maintain that the justice of holdings (and our rights to them) depends not on how they came about, but rather on the moral character of the structure (or pattern) of the set of holdings of which they are a part. It is believed that end-state arguments do not capture "the whole story" about rights and justice. Simmons asserts that most of us think that historical arguments do not tell "the whole story" about rights and justice either.

How does A.J. Simmons describe historical theories of rights? What do they include?

Historical theories of rights standardly include principles of rectification for situations of partial compliance, which specify the rights of persons who have suffered violations of their rights, as defined by the ideal principles of acquisition and transfer. • The idea seems to be that, in order to rectify a past rights violation (injustice), we must, as far as it is within our power, "make it now as though the injustice. We cannot undo a past wrong, but we can try to minimize the effects of the wrong Simmons asserts that historical theories have no clear end toward which these principles aim us, as there is a clear end toward which end-state non-ideal principles aim. Holders of these theories must therefore defend the content of their principles of rectification in a way which is compelling independent of structural goals.

According to Honore in "Property, etc.", what assumptions does Nozick make?

Honore believes Nozick believes that the principles of acquisition and transfer should be morally respectable. Nozick also presupposes, without seeking to justify, that the interest acquired and transmitted is the ownership of property as conceived in western society on the model of Roman law. Nozick assumes: 1. First, that the acquirer obtains an exclusive right to the thing acquired, that he is entitled, having cleared the land, made the tool etc. to deny access and use to everyone else. 2. Secondly he is supposing that the right acquired is of indefinite duration. The man who has made the clearing can remain there for his lifetime. He is not obliged to move and leave the fruits of his labor. 3. Thirdly the right is supposed to be transmissible inter vivos and on death, so that it can be sold, given inherited, mortgaged and the like again without limit of time. Nozick's theory, which rejects the notion that I do no harm insofar that I am well off and someone else is worse off than he would otherwise be, also rests on the assumption that someone who is comparatively worse off is not worse off. The precise wrong he suffers is that of being treated unequal by the more fortunate member or members of the group.

What does Honore contend in response to Nozick's entitlement theory?

Honore contends that the community as a whole and the state must act as a surrogate of the participatory principles that foster a participatory system of property law. If a system like this is sound, the interventions of the state are essential in order to achieve justice in distribution. Honore asserts that there is nothing unnatural about distributive property arrangements in a simple society (i.e. surplus sharing, when a person has excess, it must be made available to share). Non-western illustrations of ownership are not instances of primitive communism. Our moral consciousness is in no way superior to that of simple societies.

For Honore, why isn''t Nozick's system self-evidently just?

Honore says that this system of property is not self-evidently just. If the interests awarded to owners under the system is greater than can reasonably be justified on moral, as opposed to economic grounds, any distribution will be inherently just. Hence, the intervention if the state will be necessary. According to Nozick's notions that outline western systems of property law, ownership is a permanent, exclusive and transmissible interest in property. However, this type of property system is neither the only conceivable system, nor the easiest to justify from a moral point of view, nor does it predominate in those societies, which are closest to a 'state of nature'.

What are Honore's criticisms of Nozick's entitlement theory?

Honore's criticisms: • Nozick's principles are incomplete in there reproduction of western law. They omit provision for lapse of title and for compulsory acquisition (i.e. expropriation of the state or public authority if the owner neglects it and is deprived of it) • Nozick also rest on the assumption that whether a justification exists for acquiring or transferring property can be decided in abstraction from the historical and social context. o If Nozick's principles were true, one would have to say either that the acquisition of slaves is seen in retrospect always to have been unjust and that the state would have been justified in intervening in a slave-owning society to correct the injustice, or that the descendants of slave-owners are entitled to own the descendants of freed slaves. Essentially, rules that constitute just acquisition do not express unchanging verities and are not exempt from reassessment in light of changes circumstances.

According to Fried, what is a promise worth?

If a promise is not kept, it is fair to hand over the equivalent of the promised performance. • One measure of damage is the expectation standard which gives the victim of a breach no more or less than he would have had had there been no breech. In other words, he gets the benefit of his bargain. • Two other measures of damage: reliance and restitution. They express the notion that if a person has relied on a promise and been hurt, that the hurt must be made good and if the contract breaker has obtained goods and services, he must be made to pay a fair price for them.

Why doesn't unconscionability involve a straightforward defect of voluntariness, according to Wertheimer?

If unconscionability involves a defect in process, it is not a straightforward defect of voluntariness. The three reasons for this are: 1. The standard defenses to a contract, such as duress and fraud, not only compromise voluntariness, they constitute reasons to doubt that a contract is advantageous to B as compared with the pre-contractual baseline. 2. If unconscionable contracts were involuntary, there would be no need to develop a principle of unconscionability. The standard defenses would work. 3. There is no reason to think that freedom of contract was violated in the typical case of unconscionability.

What is the purpose of A.M. Honore's argument in "Property, Title and Redistribution"?

In "Property, Title and Redistribution", Tony Honoré questions the libertarian assumption that everyone has a right to keep whatever wealth he or she has legitimately acquired. This is the tradition in some societies, Honoré concedes, especially in modern industrial ones. However, it is by no means universal. Indeed, in many societies, tradition requires that all individuals share what they have—whether it is something valuable that they have found, meat that they have killed, or other food that they have grown. In light of these sharing traditions, Honoré challenges libertarians to back up their claim that wealthy individuals in our society are entitled to keep what they have earned.

How reliant is a civil law system on statutory law?

In a civil law system, there is a huge weight placed on statutory law as the source of law to cover all possible contingencies. The more weight placed on statutes, the more resources are compelled to fortify them and make them comprehensive. Statutory law has some genealogy tree that reflects political undertones. In a civil law system, there are constitutional courts however. Statutory law has such a huge heavy role of addressing the problem that judges have less discretion. One way to think about civil law is in the historic way.

What is Waldron's conception of private property?

In a system of private property, the rules governing access to and control of material resources are organized around the idea that resources are on the whole separate objects each assigned and therefore belonging to some particular individual. • The organizing idea of private property, in principle, is that each resource belongs to come individual. • In a private property system, a rule is laid down: In the case of each object, the individual person whose name is attached to that object is to determine how the object shall be used and by whom. His decision is to be upheld by the society as final. Ownership is a term peculiar to a system of private property.

What is civil law in a common law system?

In common law systems, civil law is defined as all the law that is not criminal law. Civil law (i.e. property law, contract law and the law of torts) encompasses all aspects of the law that is not criminal law.

According to Hart and Honore, how might moral responsibility and legal responsibility come apart, even in a just legal system?

In moral case, we make judgments of responsibility to assign praise and blame, to punish, and sometimes to determine whether and from whom compensation is required. In the legal case, we are also often concerned with punishment and with securing compensation.

What are the four types of contracts (in principle) that Wertheimer lists?

In principle, we can identify four types of contracts: (a) harmful/high profit, (b) harmful/low profit; (c) beneficial/high profit and (d) beneficial/low profit.

Why might judges have more discretion in a common law system than in a civil law system?

Judges may have more discretion in a civil law system than in a common law system. Common law systems turn to precedents. One aptitude judges must have in common law system is that even though cases are dissimilar, they must be able to locate the most relevant precedent. Judges in a common law are considered to be bound by precedent and statute as it is written. There is a principle of stasis decisis where they must understand the reasoning of past precedents to apply them to current cases. In civil law, there is no staris decisis (let it stand) principle. They have a higher degree of unpredictability than in common law systems, as eluded by Dworkin in Law's Empire. Dworkin points out that stari decisi is not a rule but a principle that could be given different weightings. Because so much weight is placed on an ongoing dialogue on what the law ought to be, common law systems have more leeway to adapt and reform itself than in civil law systems.

What do judges do in a civil law system? How do Hart and Dworkin asserts about their process of adjudication?

Judges must figure out what the law means. Hart is content with differing interpretations of the statutes while Dworkin encourages the best possible interpretation of the law, which is more than just a statute. When judges decide these penumbral cases, they are no longer merely adjudicating - they are making law (legislation). Making law equal legislation, which means that the judges in some sense have done what legislators are supposed to be doing. Judges also offer definitive guidance when legislating.

What is Simmons' implict criticism of Nozick's entitlement theory?

Judgments on historical rights concern not what would certainly have happened in any relevantly similar history, but rather what would have been most likely to have happened. • Defenders of historical rights have importantly misdescribed such rights. Nozick, for instance, suggests that what is distinctive about the historical conception of rights is that thus conceived rights are to particular things; whereas on end-state conceptions of rights, rights are to shares of the total social product. By contrast, on end-state conceptions of rights, since rights are to shares of goods (i.e., to shares that satisfy the structural distributional requirements of the end-state theory in question), rectifying injustice is a simpler matter of adjusting the relative sizes of shares of goods. No adequate historical theory can do without the idea of historical rights to shares of goods.

What were the arguments presented in the majority opinion for the Tarasoff case?

Justice Mathew O. Tobriner wrote the famous holding in the majority opinion. "The public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins."

What were the arguments made in the dissenting judicial opinions in the Tarasoff case?

Justice Mosk wrote a partial dissent, arguing two things: (1) that the rule in future cases should be one of the actual subjective prediction of violence on the part of the psychiatrist, which occurred in this case, not one based on objective professional standards, because predictions are inherently unreliable; and (2) the psychiatrists notified the police, who were presumably in a better position to protect Tatiana than she would be to protect herself. Justice Clark dissented, quoting a law review article that stated, "the very practice of psychiatry depends upon the reputation in the community that the psychiatrist will not tell." (confidentiality)

According to A.J. Simmons, why can't Lockean conclusions about Native American tribal property be derived by strict adherence to the paradigm of Locke's argument?

Lockean conclusions about Native American tribal property cannot be derived by strict adherence to the letter of Locke's own arguments. Locke himself took Native Americans to have property only in their artifacts and in the products of their hunting and gathering. They had no property in land, for they did not use the land itself in any efficient way, as did the European settlers who enclosed and cultivated portions of the earth. Thus, for Locke there was no question of required reparations for encroachments on tribal lands, for those lands constituted vacant waste still awaiting original appropriation. The historical approach preserves the particularity of Native American claims. Their rights are not just rights to some fair share of American resources; they are rights to a particular (or a particularized) fair share. Historical rights of Native Americans are in certain ways imprecise. Therefore, the best rectification will be accomplished by returning lands or goods, which most closely approximate those to which Native Americans have particularized rights, or lands or goods, which best facilitate duplicating the condition they would have enjoyed in the absence of the original injustice.

What are Hart and Honore's assumption about the relationship between legal and moral responsibility?

Moral responsibility seems neither necessary nor sufficient for legal responsibility. In addition, moral responsibility may properly be left a "vaguer" concept than legal responsibility. • We can afford to suspend moral judgment in cases where we cannot afford to suspend legal judgment: we tend not to be able to give a precise assessment of moral responsibility in any but the simplest cases, but the law must often determine precise legal responsibility in quite complicated and outlandish cases (e.g. Palsgraf). • The law must also sometimes, for reasons of practicality, draw sharp boundaries where morality does not: that is, two cases which would strike us as very similar morally may fall on different sides of some legal divide, and so be treated quite differently by the law (e.g. speed limits - depending, of course, on how we think the obligation to obey the law works)

What is A.J. Simmons' main argument in "Historical Rights and Fair Shares"?

Simmons argues that historical theories can be coherent and plausible, I will suggest, and can thus define real rights, even when those rights do not have a perfectly determinate content. The best historical theory will entail that persons can sometimes have rights that give us only imprecise, but nonetheless principled, guidelines for rectification, rather than giving us determinate entitlements to particular things or performances.

What is Nozick's argument in "Locke's Theory of Acquisition"?

Nozick's goal is to "introduce an additional bit of complexity into the structure of the entitlement theory." To do this, he uses as a starting point Locke's approach to justice in property acquisition—namely, that ownership of an object originates in one's mixing of labor with that object. Nozick points out, if the stock of improvable unowned objects is limited, this view is unfeasible. The central concern, he says, "is whether appropriation of an unowned object worsens the situation of others." Nozick introduces a principle aimed at addressing that notion, which he terms "Locke's proviso": that an appropriation must leave 'enough and as good left in common for others. • One version of the proviso, if applied consistently, would make all past appropriations disallowed under Locke's proviso once a single person's situation were worsened by an appropriation. Nozick interjects that this argument actually depends on how stringently the proviso is interpreted. • To answer the question: How does Lockean appropriation makes people no worse off than they would be? o Nozick suggests that discovering the baseline could begin by estimating the general economic importance of original appropriation and this could provide a theory of property rights legitimately originate. Nozick starts by assuming that any reasonable theory of justice must have some sort of proviso similar to a weak version of Locke's. • In short, if the position of others no longer at liberty to use an appropriated thing is worsened, any valid process cannot confer a permanent right to that thing. The emphasis on the mode of worsening is important here, as the proviso does not encompass other modes of worsening. • Nozick also suggests that compensation of the appropriator to those whom he is worsening can satisfy the proviso. Nozick then shifts the focus to justice in transfer, asserting that any theory of just acquisition must account for justice in transfer. It is only the combination of the original appropriation and the later transfers that is sufficient to violate the Lockean proviso. Nozick argues that one's title to his holding includes the "historical shadow" of the proviso; namely, the title-holder may not transfer it into an accumulation that violates the proviso, nor may he use it in a way that violates the proviso by making others worse than their baseline situation.

What are Wertheimer's sentiments on harshness? Proportionality?

On harshness, • What may appear extremely harsh terms, ex post, may not be harsh when considered ex ante. • What appears to be harsh terms may better reflect the buyer's rush than the seller's greed. • It would be a mistake to claim that a contract is unconscionably harsh only when B's utility is not significantly enhanced as contrasted with the pre contractual position. On disproportionality, • If we measure a party's gain in terms of utility, then the rich man's argument is extremely persuasive. If unconscionability has to do with A and B's relative gains, we must rely on independent and objective criteria for measuring their gains. • If unconscionability requires supra-competitive profits, then many contracts, which are thought to be unconscionable, are not. • If these contracts are unconscionable, the unconscionability does not require exorbitant or disproportionate profits.

As mentioned by Feinberg, what three classified ways can one be at fault according to the standard legal definition?

One standard legal classification divides all ways of being at fault into three categories: intentional wrongdoing, recklessness and negligence. • There is an intentional wrongdoing if either one acts with a wrongful conscious objective or one knowingly produces a forbidden result even incidentally as a kind of side effect of his effort to achieve his objective. • When the occurrence of the undesirable effect is not certain but there is substantial likelihood, its subsequent production verges into recklessness. Recklessness is the existence of a risk. • Negligence is a heterogeneous class of acts and omissions that are unreasonably dangerous. Creation of the risk is essential to the concept, and so is fault.

What were the main arguments made in the majority opinion in INS v. Associated Press?

Pitney held that the information found in the AP news was not copyrightable as "the information respecting current events contained in the literary production is not the creation of a writer but is a report of matters that ordinarily are publici juris; it is the history of the day." Instead, Pitney approached the issue from the perspective of unfair competition. He found that there was a quasi-property right in the news, as it is "stock in trade to be gathered at the cost of enterprise, organization, skill, labor and money, and to be distributed and sold to those who will pay money for it". Given the "economic value" of the news, a company can have limited proprietary interest in it against a competitor (but not the public) who would attempt to take advantage of the information. Pitney characterized INS's behavior as misappropriation. Due to the tenuous value of "hot" news, Pitney narrowed the period for which the proprietary right would apply: this doctrine "postpones participation by complainant's competitor in the processes of distribution and reproduction of news that it has not gathered, and only to the extent necessary to prevent that competitor from reaping the fruits of complainant's efforts and expenditure."

What were the facts of the Williams v. Walker case?

Plaintiffs all entered into installment contracts with Defendant for the purchase of household goods. Plaintiffs were relatively unsophisticated buyers who, at the time of purchase, had little monthly income. The installment contracts contained boilerplate language, which stated, "all payments now and hereafter made by [purchaser] shall be credited pro rata on all outstanding leases, bills, and accounts due the Company by [purchaser] at the time each such payment is made." The effect of this provision was to keep a balance on all items ever purchased under installment by Plaintiffs, so that if Plaintiff defaulted on payment, Defendants would have the ability to repossess each item, regardless of how much had actually been paid off, because each item would have an outstanding balance due until all items were paid off. The lower Court dismissed the case because there was no statutory authority to provide protection to Plaintiffs in situations such as these.

To Charles Fried, what is a promise?

Promise gives trusts its sharpest most palpable form. By promising, we put moral power in another man's hand. A promise is a communication, usually verbal. It puts a moral charge in a potential act. This can be violated in two ways: lying about one's intentions or not committing oneself to the promise.

For A.J. Simmons, why is it important to understand historical rights?

Simmons asserts that it is important to better understand historical rights for several reasons: 1. Because of the extent to which historical theories capture commonsense, unphilosophical views about property and justice. 2. Because historical theories have fallen out of philosophical fashion, and are consequently not much scrutinized anymore; and because of (what I see as) the continuing need to better understand the historical components of our society's responsibilities to the descendants of victims of systematic injustice in our own past. Simmons uses Native American tribes and claims based on their historical standing as the original owners of certain lands and resources for his argument.

What are some of A.J. Simmons main assertions?

Simmons asserts that: 1. Historical rights theories need not embrace a pure indifference principle (with all of its attendant difficulties) in cases of destroyed property. 2. That claims to particularized shares in such cases, while not always claims to particular shares, will normally be claims to something in a relatively narrow range of options. Historical rights can change, shrink, or expand, and so be sensitive to passing time and changing circumstances, without their simply fading away. Also: 1. The conditions for continued possession of a right must mirror those for the initial acquisition of a right. 2. With special rights other than rights to things, one cannot extinguish the right by eliminating the rightholder's capacity to use the right. 3. When the rightholder or the violater of rights dies, this is the most obvious and complicated way in which passing time and changed circumstances can affect the substance of our moral rights.

What was the synopsis of rule of law in the Williams case? Why is this case significant?

Synopsis of Rule of Law: Where the element of unconscionability is present at the time a contract is made, the contract should not be enforced. The case signifies that Courts may render a commercially unreasonable contract unenforceable when entered into between two parties of unequal bargaining power, especially where one party is commercially unsophisticated.

How did the Court rule in INS v. Associated Press?

The Court held in favor of the AP, with Justice Mahlon Pitney's writing for the majority. There is a quasi-property interest in news collected by an agency against other news collection agencies. It is unfair business competition for a news collection agency to distribute the news collected by another news collection agency. Justice Louis D. Brandeis gave a vigorous dissent.

What was the Court's holding in the Williams case? What was their reasoning?

The Court held that where there is an absence of meaningful choice on the part of one of the parties together with contract terms, which are unreasonably favorable to such party, such contract might be set aside. • Meaningful choice can be determined by the equality of bargaining power and a reasonable understanding of contractual terms that each party has when entering into the contract. • The Court remanded the case to determine whether, considering the lack of bargaining power held by Plaintiffs, coupled with the commercially unreasonable terms in the contract, the installment contract was so extreme as to appear unconscionable and render the contract unenforceable. • The majority claimed that when the weaker party, Williams in this case, had little bargaining power and therefore "little real choice, [and] signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that [her] consent, or even an objective manifestation of [her] consent, was ever given to all terms.

What is the difference between civil and common law?

The best rule of thumb to decipher between civil and common law is to look at the history. Common law systems developed in England during the middle Ages while civil law is traced back to the Roman imperial law. Civil law is implemented by countries that have been influenced by the British Empire (1/3 of the world). For Dworkin, his greatest concern is jurisprudence in hard cases. This is a classic common law system concern. Common law refers to law made by courts rather than the law enacted by legislators. Law that is enacted by legislatures according to some approved procedure is often referred to as statutory law.

According to Waldron, what are the alternatives to private property?

The common alternatives to private property are common property and collective property. • In a system of collective property, the problem of allocation is solved by the application of a social rule that access to and the use of material resources in particular cases are to be determined by reference to the collective interests of society as a whole. In these systems, no individual has such an intimate association with any object that he can make decisions about its use without reference to the interests of the collective. • In a system of common property, rules governing access to and control of material resources are organized on the basis that each resource is in principle available for the use of every member alike. In principle, the needs and wants of every person are considered and when allocative decisions are made, they are made on a basis of fairness.

What is the concept of property? What is the problem of allocation?

The concept of property is the concept of a system of rules governing access to and control of material resources. Material resources are material objects capable of satisfying some human need or want. They are scarce relative to the human demands that are made on them. The problem of allocation arises in any society that makes use of a resource that one wants is connected directly or indirectly. The problem entails determining peacefully and reasonably who is to have access to which resources for what purposes and when.

What was the Court's holding in the Tarasoff case?

The court held that Plaintiffs could amend their complaint to bring a valid cause of action against therapists and Regents of University of California for breach of duty to exercise reasonable care. The court concluded that the police did not have the requisite special relationship with Tarasoff, sufficient to impose a duty to warn her of her Poddar's intention.

What issues arise from the definition of the problem of allocation?

The definition of the problem of allocation, according to Waldron, raises the following issues: 1. Social rules: Some societies rely on social rules to address the issue of allocation with societies relying on less or more coordination instinct or impulses. This of course is not universal. The difficulty with this is that if a particular resource is not the subject of an allocation problem, there is no need for rules that regulate it. In addition, in principle, it is hard to distinguish between a society having jurisdiction over a resource and that resource being the collective or common property of the society or tribe. 2. Scarcity: Without some assumption of scarcity, there is not sense talking about property and justice. 3. Access and control: The concept of property does not cover all rules governing the use of material resources. 4. Material objects: There are objects of property that are not corporeal objects (i.e. intellectual property, reputations, stocks and shares) which convolute the conception of property.

What is the 'duty of care'?

The duty of care is a standard term in tort law. This is a catchall phrase provides incentives to reduce the risk of injuries or harms.

What is the fault principle, according to Feinberg?

The fault principle requires that accidental losses be borne by the party whose fault the accident was. This is liability based on "his fault" ascriptions.

How is the legal version of torts related to the moral version of the same problem?

The legal version of a primary kind of social concern or problem (torts) are related to the moral version of that same kind of problem. Given the degree our lives depend on the actions of others, what ought we to do to protect ourselves from harm?

What is the 'massive' purpose of torts?

The massive purpose of torts is to provide a means to coordinate and make efficient the broad social purpose of making risks reasonable and eliminating unreasonable risk. It provides a mechanism to incentivize agents and exercise what they would have had already good reason to do.

According to Fried, why is it wrong to break a promise?

The obligation to keep a promise is grounded in the Kantian principles of respect for individual autonomy and in trust. An individual is morally bound to keep his promises because he has intentionally invoked a convention whose function it is to give moral grounds for another to expect the promised performance. The moralist duty sees promising as a device that free, moral individuals have fashioned on the premise of mutual trust, which gathers its moral force from that premise.

According to Feinberg, what is the retributive theory of torts?

The retributive theory of torts is the principle underlying a system of liability based on fault without causation. This could take a very moralistic form. This is called for by strong retributivism. Fault suffers its due penalty.

What is the skeptical worry that Waldron describes in the opening of his essay?

The skeptical worry is the indefinable nature of private property and the indeterminacy of ownership. Waldron says that private property and private ownership are concept of which many different conception are possible, and that in each society the detailed incidents of ownership amount to a particular conception of these concepts.

Why can't relying on promise explain its force, according to Fried?

There is reliance because a promise is binding, and not the other way around. However, if a person is bound by his promise and not by the harm the promisee may have suffered in reliance on it, then what he is bound to is just its performance.

According to Waldron, what are the main sources of difficulty in applying the three ideal systems (common, collective and private) to the real world?

Three systems (common, collective and private) are typical. These ideal systems are difficult to apply in the real world. Four main sources of difficulty: 1. It is highly likely that there will be a measure of compromise between the three where come resources are private, others common and others organized on a collective basis. 2. Debates on allocation are done in a way that make direct reference to some social goal without the mediation of any organizing idea like private or collective property. These debates may yield pragmatic solutions that do not fall into any of the three frameworks. 3. Some resources are more amenable to some types of property rule than others are and represent outer parameters that the different systems. 4. Systems of private property are peculiar in that they permit individual owners to split up the rights that they hold and therefore to produce new property arrangements that may imitate the arrangement of other non-private property systems.

According to Hart and Honore, is it a necessary condition to be legal punished for harms/risk of harms that we are morally responsible for?

To them, this is not a necessary condition. Holding people legally responsible for every moral transgression would be too costly: (1) with respect to the legal infrastructure it would require; (2) with respect to the chilling effect it would have on many other valuable activities of society. (3) Limited liability may sometimes be socially preferable (e.g. the house-burning case) Conversely, social needs may require that someone be held legally responsible even where they are not morally responsible for some harm.

What are torts?

Torts are instances where someone is wrongfully harmed and their wrongful harm is wrong because it is related to an act or mission of someone else. The person who is at fault may or may not be liable which is an additional concept (liability) related to fault and compensation for the harm that is their fault. Torts have something to do with the unreasonable degree of risk. Therefore, a function of tort law is to provide people with compensation to offset or correct the wrongs they have caused but this just the visible side. A tort is a finding of wrongful harm. This indicates liability or legitimate demand to compensate. The compensation's purpose is to offset for the injury. Liability flows from the tortfeasor or agent who conducted harm. The tortfeasor is liable because the tortfeasor is at fault.

How are torts related in social reference to criminal law?

Torts have a different but related social reference to it than criminal law. • Criminal law explicitly expresses public disapproval. • In torts, there is an equally archaic social dimension, which is that as a fully equal member of an ongoing social project, we have to adopt a particular attitude on the way our lives go and the risk we impose on other people.

What is the background of INS v. Associated Press?

Two competing United States news services were in the business of reporting in the US on World War I. Their business hinged on getting fast and accurate reports published. Following unfavorable reporting on British losses by William Randolph Hearst's INS, that news service was barred from using Allied telegraph lines to report news, effectively shutting down their war reporting. To continue publishing news about the war, International News Service gained access to Associated Press news through bribery, news bulletin boards and early editions of newspapers. INS members would rewrite the news and publish it as their own, without attribution. Although INS newspapers had to wait for AP to post news before going to press, INS newspapers in the west had no such disadvantage relative to their AP counterparts. The AP brought an action seeking to enjoin INS from copying news.

According to Wertheimer, what the two criteria for putatively unconscionable contracts?

Two criteria for putatively unconscionable contracts: • Whether the contract is beneficial to B as contrasted with the pre-contractual baseline. • Whether the contract is extremely profitable to A.

According to Wertheimer, what two ways can we regard the terms of a contract as unconscionable?

Two ways in which to regard the terms of a contract as unconscionable: • Harshness: terms may be particularly harsh for B. • Disproportionality: A's benefit from the agreement is exorbitant or disproportionate to B's gain.

Why does Honore believe Nozick's system of just entitlements are open for attack?

Under a system of "just entitlements", as Nozick specifies, Honore asserts that there is no room to admit that the state has the right or duty to redistribute benefits so as to secure an equal or more equal spread, because "the particular rights over things fill the space of rights, leaving no room for general rights to be in a certain material condition". Honore says Nozick's argument is open for attack because it rests on the morally questionable view that a person is entitled to keep exclusively and indefinitely for himself whatever he makes or produces. This would be true of a man working in complete isolation but no argument has proven that this can be true for a social being. Honore says that Nozick's response to those who hold principles of social justice is that just allocation is a historically justifiable one. Just distribution depends on just acquisition and transfer and redistribution only pertains to original acquisition or the subsequent transmission of the property was unjust.

What is Waldron's main argument in "What is Private Property?

Waldron asserts that it is a mistake to think that particulars can be classified under general terms only based on their possession of specified common features, as with private property. Waldron argues that private property and private ownership are concepts which many different conceptions are possible and that in each society the detailed incidents of ownership amount to a particular concrete conception of these abstracts concepts.

According to Wertheimer, how can we evaluate the moral legitimacy of a contract?

We can evaluate the moral legitimacy of a contract in terms of its process (the way in which it formed) and its substance (result or content).

What was the legal question/issue in Williams v. Walker?

Were the contracts unconscionable, and therefore unenforceable, due to the boilerplate language on back of the installment contract?

What does Wertheimer use the doctrine of unconscionability for in his piece?

Wertheimer uses the doctrine of unconscionability in contracts as a lens through which we can get a better understanding of exploitation.

For Feinberg, when we attach a fault (he has a fault) to a personal characteristic, what are we essentially doing?

When we attach a fault to a personal characteristic, we are not simply predicting that the characteristics will offend; we are instead endorsing offense as an appropriate reaction to them. To cite a man's character flaw as fault is to ascribe the cause to an act or omission and then to classify that act or omission in a certain way - as characteristic of the actor. It is also to judge the manifested characteristic as substandard and thereby to derogate it. • When uncharacteristic failures cause harm, it is correct to say that a faulty aspect of some act or omission did the causing but incorrect to ascribe the cause to some faulty characteristic of the actor. That would imply he is an inept person. Being at fault is in a sense partly a matter of luck. The luckily unactualized and the unluckily actualized latencies are possibilities that follow from the analysis of faults as dispositions. When a man is at fault, the fault characterizes his actions itself and not necessarily the actor.

According to Feinberg, what is the difference between explanatory citations and non-explanatory citations?

• Explanatory citations are one where there is intellectual puzzlement if a quite specific kind. The occasion for one is a breach or abnormal interference of routine and the explanatory judgement cited another deviation from routine to correlate with it. • Non-explanatory citations cite the causal factor that is of a kind that is easiest to manipulate and control. When they seek the cause, they seek the causal factor that us has a handle in it that they can hold of and manipulate.

According to Hart and Honore, judging a conjuction of events to be coincedental is often a matter for judicial discretion and may resist precse formulation. Why?

• Judging some conjunction of events to be coincidental is often a matter for judicial discretion, and may, for two reasons, resist precise formulation: o No precise statement how unlikely a conjunction must be to count as a coincidence, and in light whose knowledge: H & H - "very unlikely in the light of the knowledge available to ordinary men" (e.g., doesn't undermine coincidence claim in tree case if a tree specialist could have recognized on the basis of tree rot that the tree was about to fall). o Also, how coincidental the conjunction seems will depend on the precise description we give of the events (e.g., the tree's falling at exactly this time in exactly (to the millimeter) this place may seem a bigger coincidence than the tree's falling about now, about here). The choice of an appropriate description depends on the "degree of specificity of our interests in the final outcome of the causal process."

According to Hart and Honore, what makes an intervening action voluntary?

• Must be voluntary: not the result of defective muscular control, lack of consciousness or knowledge, the result of duress or predicaments (created by the first agent), the absence of 'fair' choice... • Examples: the punch and the tree. A causes B's bruises but not his death; A's intent is irrelevant; so is the fact that the degree of harm resulting isn't the "normal" result of the punch (after all, according to H & H, A would be responsible for B's death if it was due to the punch plus a rare heart weakness, or if the punch caused B to fall into the tree and that caused the tree to topple onto B, killing him). o In addition, A would not be responsible for the tree breaking B's watch, even if a broken watch is a normal consequence of a fistfight.

According to Hart and Honore, what makes a conjunction of events a coincidence?

• The conjunction of the events with the action is "very unlikely by ordinary standards" • Is for some reason significant or important (e.g. has a major effect on the resulting event) • Occurs without human contrivance (by the agent whose causal role we are assessing?) - e.g., in tree case, despite the unlikeliness of success, if A had deliberately pushed B down under the tree in the hopes that it would later fall on him, the falling of the tree wouldn't count as coincidental). • The events are independent of each other (e.g., the tree was not caused to fall by A's punching B, by, say, B is falling into the tree). This is why the heart attack that results from punching the person with the heart condition does not count as a coincidence.

According to Feinberg, what are the three criterion we look for when assessing fault?

• The lantern criterion is the criterion of selection for explanatory citations which single out abnormal interferences with the normal course of events. • The handle criterion is the criterion for selection in engineering contexts with non-explanatory citations. • The stain criterion is the criterion for blaming contexts where a causal factor that is a human act or omission is cited as the cause.

According to Wertheimer, what constitutes an inequality of bargaining power?

• Wertheimer says two potential candidates are size and necessity. However, size is irrelevant when the larger party needs the smaller party more than the other way around. Necessity is also irrelevant because the fact that B needs a good, even in order to live, does not give A any special power over B if there is a competitive marker among sellers of the good. • Bargaining potential is not a function of size or necessity or resource contribution. It is a function of a party's "threat advantage", which is his willingness not to contract if his proposal is not accepted.