British Journal of American Legal Studies, Apr 10, 2021
The prevalent approach to the concept of the rule of law among legal theorists puts attributes fi... more The prevalent approach to the concept of the rule of law among legal theorists puts attributes first, assigning certain features of laws and sometimes legal systems as rule-of-law virtues. Inquiring at a more basic level, this paper advances a novel, structuralist view of the rule of law. While honoring theoretical constraints that guard against diluting the rule-of-law concept too thinly as a remedy for myriad societal ills, this approach shows that the concept implicates inequalities sustained by a society’s social, economic, and political structures. This is accomplished by demonstrating that the rule-of-law project holds a structural position in the collective normative discourse as a vehicle by which people morally evaluate the interplay between the actual capabilities of individuals and groups to participate in law, and the legal system’s treatment of those individuals and groups.
Law’s procedural outputs may formally provide the public with access to the legal system, but the rule-of-law project goes to the actual capabilities of the people to access the system in reality, to have a fair opportunity to participate in the inputs into the system, and to have that participation impartially adjudicated. Conditions impacting a diversity of stakeholders – and particularly the most disadvantaged within the population – perturb the virtues typically associated with the rule-of-law ideal when those conditions, and the power exercised to maintain them, impair capabilities for fair, dignified, and equal access to legal processes.
Understanding the rule of law in structuralist terms, as an informal moral operator, (1) makes sense of the schism we normally accept between the concepts of law and the rule of law, (2) reorients the source of rule-of-law thinking from theorists bent on fixing a conceptual definition to communities engaged in first-order interactions with the legal system, (3) helps explain why citizens come not only to expect law to constrain official coercive powers but also to demand that law promote their actual capabilities to participate in the legal system on an egalitarian and dignitarian footing, and hence (4) implicates a critique of conditions of political and material inequalities that cannot but impair the healthy functioning of the rule-of-law project.
British journal of American legal studies, Apr 1, 2021
The prevalent approach to the concept of the rule of law among legal theorists puts attributes fi... more The prevalent approach to the concept of the rule of law among legal theorists puts attributes first, assigning certain features of laws and sometimes legal systems as rule-of-law virtues. Inquiring at a more basic level, this paper advances a novel, structuralist view of the rule of law. While honoring theoretical constraints that guard against diluting the rule-of-law concept too thinly as a remedy for myriad societal ills, this approach shows that the concept implicates inequalities sustained by a society's social, economic, and political structures. This is accomplished by demonstrating that the rule-of-law project holds a structural position in the collective normative discourse as a vehicle by which people morally evaluate the interplay between the actual capabilities of individuals and groups to participate in law, and the legal system's treatment of those individuals and groups. Law's procedural outputs may formally provide the public with access to the legal system, but the rule-of-law project goes to the actual capabilities of the people to access the system in reality, to have a fair opportunity to participate in the inputs into the system, and to have that participation impartially adjudicated. Conditions impacting a diversity of stakeholders – and particularly the most disadvantaged within the population – perturb the virtues typically associated with the rule-of-law ideal when those conditions, and the power exercised to maintain them, impair capabilities for fair, dignified, and equal access to legal processes. Understanding the rule of law in structuralist terms, as an informal moral operator, (1) makes sense of the schism we normally accept between the concepts of law and the rule of law, (2) reorients the source of rule-of-law thinking from theorists bent on fixing a conceptual definition to communities engaged in first-order interactions with the legal system, (3) helps explain why citizens come not only to expect law to constrain official coercive powers but also to demand that law promote their actual capabilities to participate in the legal system on an egalitarian and dignitarian footing, and hence (4) implicates a critique of conditions of political and material inequalities that cannot but impair the healthy functioning of the rule-of-law project.
Abstract The history of legal standards for admissibility of epidemiologic testimony regarding ca... more Abstract The history of legal standards for admissibility of epidemiologic testimony regarding causality in US courts is reviewed in this chapter, including the Frye and Daubert standards, among others. The use of the Hill criteria as a framework for assessing the general acceptance of the methods used in an individual analysis is discussed, as is the potential pitfalls of the 2.0 comparative risk ratio threshold used in many jurisdictions.
Three interrelated paradigm shifts are currently at play within products liability law. The first... more Three interrelated paradigm shifts are currently at play within products liability law. The first results from the tort reform movement’s heated efforts at dramatically restricting compensatory rights and options. The second arises from the countervailing effort to preserve products accountability by relinquishing no-fault strict-liability theories. The article’s resulting treatment of negligence introduces the third paradigm shift, by which the elements of accident law are restated more accurately. This shift from the traditional negligence formula will hone the reader’s ability to analyze tort law agendas, and the new analysis is here applied in critiquing three major initiatives in the tort reform scholarship.
I argue that a concept of law that assigns primacy to the regulative role fulfilled by legal syst... more I argue that a concept of law that assigns primacy to the regulative role fulfilled by legal systems is best suited for explaining law’s discrete practice areas. This regulative point of view facilitates the development of a concept of law capable of cohering with theories of discrete legal areas. The posted paper revises the article as originally published in the Cumberland Law Review.
This article addresses the subtle yet turbulent “duty wars” currently raging with respect to the ... more This article addresses the subtle yet turbulent “duty wars” currently raging with respect to the conceptual nature of duty in tort law. The scholars have thus far divided principally into three camps, and the courts have increasingly been taking their cue from this scholarship and altering their previously settled notions of the duty element. The main dispute has been over the role of foreseeability in the duty analysis. This article critiques the principal approaches taken in the literature, demonstrating, for example, why the vision of duty articulated in the new Restatement (Third) of Torts and represented by one of the scholarly camps – “purging” foreseeability from duty – is incoherent. The article develops the framework for a different, positive conception of duty, a policy, not obligation, centered view, but in which foreseeability is itself a normative policy subelement different in nature from the sort of foreseeability that underlies the jury’s breach and proximate cause findings. The methodological insight that engenders this conception concerns the “self-reflexive” nature of the court’s engagement with questions of law, in particular the duty question. While the community asks the first-order question what is the obligation we owe or should owe one another, the court self-reflexively addresses the higher-order questions of how it should rule on the duty issue, and what will be the impact of its ruling on the community and society. At those times, courts implicitly, and sometimes explicitly, speak of themselves and grapple with the judicial system’s institutional role, legitimacy, and limitations. Appreciating the court’s self-reflexive character enables us to show why, as an analytic matter, the inclusion of foreseeability in the court’s duty analysis does not usurp the jury’s role. This insight also grounds the new argument presented in this article for why duty arises from policy rather than obligation.
... Although Peirce and Dewey were early contextualists. ... Finally, Part V suggests the sort of... more ... Although Peirce and Dewey were early contextualists. ... Finally, Part V suggests the sort of criticism Daubert remains vulnerable to once we recognize it as a contextualist maneuver ... I am at a loss to know what is meant when it is said that the scientific status of a theory depends on ...
... this distinction to his advantage when pointing out that, in some instances, a seller might h... more ... this distinction to his advantage when pointing out that, in some instances, a seller might have ... least yet extend to the anticipation of how manufactured components not in and of themselvesdangerous or defective can become potentially dangerous dependent upon ...
Commentators who favor broader judicial reliance on linguistics argue that the methods of linguis... more Commentators who favor broader judicial reliance on linguistics argue that the methods of linguistic science can significantly inform judicial decision-making. This article questions the link between linguistics and statutory construction, as perceived by legal scholars. Law and linguistics pursue different ends, and linguists construing statutes will miss legally decisive issues. More importantly, courts relying on linguists--in the manner the new textualists advocate--will have to scrutinize linguistic findings closely and rectify them, or risk issuing assessments that fail to cohere with the decision-making guidelines announced in relevant precedents. The article does not object to a cooperative arrangement between law and linguistics, or to any other interdisciplinary approach; indeed, linguistics and the other scientific and social scientific disciplines influence legal work and decision making in a variety of ways that scholars may beneficially explore. There are, however, justifiable grounds for resisting proposals that assign non-legal experts an elevated role in the adjudicatory process.
Rule of law scholarship overwhelmingly presupposes that the discipline does not place moral deman... more Rule of law scholarship overwhelmingly presupposes that the discipline does not place moral demands on the extralegal conditions in which people live and work. Theorists take the rule of law construct to be concerned nearly exclusively with certain of the legal system's characteristics, or additionally with official expressions of power. This paper disagrees, and views social and economic conditions as correlative to a legal system's rule of law-relevant attributes. As such, extralegal conditions are important in determining the practical impact of those attributes. Individuals' actual capabilities affect their access to, and ability to meaningfully interact with, law's procedural mechanisms and official exercises of power. Because core rule of law interests in autonomy require sufficient access to law and governance to enable people to assert rights and claim defenses, safeguard negative freedom, and participate in democratic initiatives, the rule of law project appropriately demands that lived conditions not preempt such interactions. Practical considerations rooted in the legal community's ethos, on the one hand, and philosophical approaches to the avoidance of moral dilemmas, on the other, further underwrite this reimagined conception whereby the rule of law discipline may demand extralegal change.
British Journal of American Legal Studies, Apr 10, 2021
The prevalent approach to the concept of the rule of law among legal theorists puts attributes fi... more The prevalent approach to the concept of the rule of law among legal theorists puts attributes first, assigning certain features of laws and sometimes legal systems as rule-of-law virtues. Inquiring at a more basic level, this paper advances a novel, structuralist view of the rule of law. While honoring theoretical constraints that guard against diluting the rule-of-law concept too thinly as a remedy for myriad societal ills, this approach shows that the concept implicates inequalities sustained by a society’s social, economic, and political structures. This is accomplished by demonstrating that the rule-of-law project holds a structural position in the collective normative discourse as a vehicle by which people morally evaluate the interplay between the actual capabilities of individuals and groups to participate in law, and the legal system’s treatment of those individuals and groups.
Law’s procedural outputs may formally provide the public with access to the legal system, but the rule-of-law project goes to the actual capabilities of the people to access the system in reality, to have a fair opportunity to participate in the inputs into the system, and to have that participation impartially adjudicated. Conditions impacting a diversity of stakeholders – and particularly the most disadvantaged within the population – perturb the virtues typically associated with the rule-of-law ideal when those conditions, and the power exercised to maintain them, impair capabilities for fair, dignified, and equal access to legal processes.
Understanding the rule of law in structuralist terms, as an informal moral operator, (1) makes sense of the schism we normally accept between the concepts of law and the rule of law, (2) reorients the source of rule-of-law thinking from theorists bent on fixing a conceptual definition to communities engaged in first-order interactions with the legal system, (3) helps explain why citizens come not only to expect law to constrain official coercive powers but also to demand that law promote their actual capabilities to participate in the legal system on an egalitarian and dignitarian footing, and hence (4) implicates a critique of conditions of political and material inequalities that cannot but impair the healthy functioning of the rule-of-law project.
British journal of American legal studies, Apr 1, 2021
The prevalent approach to the concept of the rule of law among legal theorists puts attributes fi... more The prevalent approach to the concept of the rule of law among legal theorists puts attributes first, assigning certain features of laws and sometimes legal systems as rule-of-law virtues. Inquiring at a more basic level, this paper advances a novel, structuralist view of the rule of law. While honoring theoretical constraints that guard against diluting the rule-of-law concept too thinly as a remedy for myriad societal ills, this approach shows that the concept implicates inequalities sustained by a society's social, economic, and political structures. This is accomplished by demonstrating that the rule-of-law project holds a structural position in the collective normative discourse as a vehicle by which people morally evaluate the interplay between the actual capabilities of individuals and groups to participate in law, and the legal system's treatment of those individuals and groups. Law's procedural outputs may formally provide the public with access to the legal system, but the rule-of-law project goes to the actual capabilities of the people to access the system in reality, to have a fair opportunity to participate in the inputs into the system, and to have that participation impartially adjudicated. Conditions impacting a diversity of stakeholders – and particularly the most disadvantaged within the population – perturb the virtues typically associated with the rule-of-law ideal when those conditions, and the power exercised to maintain them, impair capabilities for fair, dignified, and equal access to legal processes. Understanding the rule of law in structuralist terms, as an informal moral operator, (1) makes sense of the schism we normally accept between the concepts of law and the rule of law, (2) reorients the source of rule-of-law thinking from theorists bent on fixing a conceptual definition to communities engaged in first-order interactions with the legal system, (3) helps explain why citizens come not only to expect law to constrain official coercive powers but also to demand that law promote their actual capabilities to participate in the legal system on an egalitarian and dignitarian footing, and hence (4) implicates a critique of conditions of political and material inequalities that cannot but impair the healthy functioning of the rule-of-law project.
Abstract The history of legal standards for admissibility of epidemiologic testimony regarding ca... more Abstract The history of legal standards for admissibility of epidemiologic testimony regarding causality in US courts is reviewed in this chapter, including the Frye and Daubert standards, among others. The use of the Hill criteria as a framework for assessing the general acceptance of the methods used in an individual analysis is discussed, as is the potential pitfalls of the 2.0 comparative risk ratio threshold used in many jurisdictions.
Three interrelated paradigm shifts are currently at play within products liability law. The first... more Three interrelated paradigm shifts are currently at play within products liability law. The first results from the tort reform movement’s heated efforts at dramatically restricting compensatory rights and options. The second arises from the countervailing effort to preserve products accountability by relinquishing no-fault strict-liability theories. The article’s resulting treatment of negligence introduces the third paradigm shift, by which the elements of accident law are restated more accurately. This shift from the traditional negligence formula will hone the reader’s ability to analyze tort law agendas, and the new analysis is here applied in critiquing three major initiatives in the tort reform scholarship.
I argue that a concept of law that assigns primacy to the regulative role fulfilled by legal syst... more I argue that a concept of law that assigns primacy to the regulative role fulfilled by legal systems is best suited for explaining law’s discrete practice areas. This regulative point of view facilitates the development of a concept of law capable of cohering with theories of discrete legal areas. The posted paper revises the article as originally published in the Cumberland Law Review.
This article addresses the subtle yet turbulent “duty wars” currently raging with respect to the ... more This article addresses the subtle yet turbulent “duty wars” currently raging with respect to the conceptual nature of duty in tort law. The scholars have thus far divided principally into three camps, and the courts have increasingly been taking their cue from this scholarship and altering their previously settled notions of the duty element. The main dispute has been over the role of foreseeability in the duty analysis. This article critiques the principal approaches taken in the literature, demonstrating, for example, why the vision of duty articulated in the new Restatement (Third) of Torts and represented by one of the scholarly camps – “purging” foreseeability from duty – is incoherent. The article develops the framework for a different, positive conception of duty, a policy, not obligation, centered view, but in which foreseeability is itself a normative policy subelement different in nature from the sort of foreseeability that underlies the jury’s breach and proximate cause findings. The methodological insight that engenders this conception concerns the “self-reflexive” nature of the court’s engagement with questions of law, in particular the duty question. While the community asks the first-order question what is the obligation we owe or should owe one another, the court self-reflexively addresses the higher-order questions of how it should rule on the duty issue, and what will be the impact of its ruling on the community and society. At those times, courts implicitly, and sometimes explicitly, speak of themselves and grapple with the judicial system’s institutional role, legitimacy, and limitations. Appreciating the court’s self-reflexive character enables us to show why, as an analytic matter, the inclusion of foreseeability in the court’s duty analysis does not usurp the jury’s role. This insight also grounds the new argument presented in this article for why duty arises from policy rather than obligation.
... Although Peirce and Dewey were early contextualists. ... Finally, Part V suggests the sort of... more ... Although Peirce and Dewey were early contextualists. ... Finally, Part V suggests the sort of criticism Daubert remains vulnerable to once we recognize it as a contextualist maneuver ... I am at a loss to know what is meant when it is said that the scientific status of a theory depends on ...
... this distinction to his advantage when pointing out that, in some instances, a seller might h... more ... this distinction to his advantage when pointing out that, in some instances, a seller might have ... least yet extend to the anticipation of how manufactured components not in and of themselvesdangerous or defective can become potentially dangerous dependent upon ...
Commentators who favor broader judicial reliance on linguistics argue that the methods of linguis... more Commentators who favor broader judicial reliance on linguistics argue that the methods of linguistic science can significantly inform judicial decision-making. This article questions the link between linguistics and statutory construction, as perceived by legal scholars. Law and linguistics pursue different ends, and linguists construing statutes will miss legally decisive issues. More importantly, courts relying on linguists--in the manner the new textualists advocate--will have to scrutinize linguistic findings closely and rectify them, or risk issuing assessments that fail to cohere with the decision-making guidelines announced in relevant precedents. The article does not object to a cooperative arrangement between law and linguistics, or to any other interdisciplinary approach; indeed, linguistics and the other scientific and social scientific disciplines influence legal work and decision making in a variety of ways that scholars may beneficially explore. There are, however, justifiable grounds for resisting proposals that assign non-legal experts an elevated role in the adjudicatory process.
Rule of law scholarship overwhelmingly presupposes that the discipline does not place moral deman... more Rule of law scholarship overwhelmingly presupposes that the discipline does not place moral demands on the extralegal conditions in which people live and work. Theorists take the rule of law construct to be concerned nearly exclusively with certain of the legal system's characteristics, or additionally with official expressions of power. This paper disagrees, and views social and economic conditions as correlative to a legal system's rule of law-relevant attributes. As such, extralegal conditions are important in determining the practical impact of those attributes. Individuals' actual capabilities affect their access to, and ability to meaningfully interact with, law's procedural mechanisms and official exercises of power. Because core rule of law interests in autonomy require sufficient access to law and governance to enable people to assert rights and claim defenses, safeguard negative freedom, and participate in democratic initiatives, the rule of law project appropriately demands that lived conditions not preempt such interactions. Practical considerations rooted in the legal community's ethos, on the one hand, and philosophical approaches to the avoidance of moral dilemmas, on the other, further underwrite this reimagined conception whereby the rule of law discipline may demand extralegal change.
Historically, courts have simultaneously resisted and embraced extra-legal expertise. Opinion te... more Historically, courts have simultaneously resisted and embraced extra-legal expertise. Opinion testimony rooted in expertise beyond the ken of the average lay juror carries with it an aura of authoritativeness in tension with the jury’s fact-finding mission. This chapter addresses this tension, and the judicial treatment of expert scientific and technical evidence, as it evolved during the pre- and post-Frye period, and then under the Federal Rules of Evidence and the Daubert line of cases. Courts have ruled heterogeneously in relation to the growing list of Daubert factors available to inform their gatekeeping task regarding the admissibility of expert testimony. The chapter’s analysis includes epidemiology as a special case throughout.
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Papers by Alani Golanski
Law’s procedural outputs may formally provide the public with access to the legal system, but the rule-of-law project goes to the actual capabilities of the people to access the system in reality, to have a fair opportunity to participate in the inputs into the system, and to have that participation impartially adjudicated. Conditions impacting a diversity of stakeholders – and particularly the most disadvantaged within the population – perturb the virtues typically associated with the rule-of-law ideal when those conditions, and the power exercised to maintain them, impair capabilities for fair, dignified, and equal access to legal processes.
Understanding the rule of law in structuralist terms, as an informal moral operator, (1) makes sense of the schism we normally accept between the concepts of law and the rule of law, (2) reorients the source of rule-of-law thinking from theorists bent on fixing a conceptual definition to communities engaged in first-order interactions with the legal system, (3) helps explain why citizens come not only to expect law to constrain official coercive powers but also to demand that law promote their actual capabilities to participate in the legal system on an egalitarian and dignitarian footing, and hence (4) implicates a critique of conditions of political and material inequalities that cannot but impair the healthy functioning of the rule-of-law project.
Law’s procedural outputs may formally provide the public with access to the legal system, but the rule-of-law project goes to the actual capabilities of the people to access the system in reality, to have a fair opportunity to participate in the inputs into the system, and to have that participation impartially adjudicated. Conditions impacting a diversity of stakeholders – and particularly the most disadvantaged within the population – perturb the virtues typically associated with the rule-of-law ideal when those conditions, and the power exercised to maintain them, impair capabilities for fair, dignified, and equal access to legal processes.
Understanding the rule of law in structuralist terms, as an informal moral operator, (1) makes sense of the schism we normally accept between the concepts of law and the rule of law, (2) reorients the source of rule-of-law thinking from theorists bent on fixing a conceptual definition to communities engaged in first-order interactions with the legal system, (3) helps explain why citizens come not only to expect law to constrain official coercive powers but also to demand that law promote their actual capabilities to participate in the legal system on an egalitarian and dignitarian footing, and hence (4) implicates a critique of conditions of political and material inequalities that cannot but impair the healthy functioning of the rule-of-law project.