1. Rights Arguments Concern justice and fairness in social relationships. P claims D’s conduct has illegitimately deprived P of right to be secure from harm. D says that interest claimed by P does not merit protection and D claims legally protected interest in her own freedom of action P’s Arguments for D’s Argument for Security Freedom of Action Rights Right to security Right to freedom of action Morality Altruism Individualism Compensation No liability without fault Reasonable Foreseeability Foreseeability Expectations Justified Expectations Justified Expectations Distribution: Who Cost internalization Self-Reliance should bear loss? Equality Equal right to security Equal right to develop 2. Social Utility Arguments Concern efforts to promote general welfare or maximize social wealth. Consequentialist in outlook. They judge legal rules by their consequences P’s Arguments for D’s Argument for Security Freedom of Action Behavior Modification; Encourage safe Encourage self-protection Investment in Safety construction Promotion of Secure investment Competition Investment Cost internalization Cost internalization Deregulation of economic activity Transaction Costs; Most valued user Free market Efficiency 3. Judicial Role Arguments Concerned with proper spheres of authority of legal institutions and proper relations among separate branches of government in legal system Arguments for Judicial Arguments for Judicial Activism Restraint Precedent Narrow holding Broad holding Distinguish a precedent Reconcile apparently Promote justice conflicting precedents Stare decisis Institutional Role Judicial activism Judicial restraint Purposive interpretation of Textual interpretation of statutes statutes Institutional Deference to the Judicial responsibility Competence legislature 4. Formal Realizability or Administrability Arguments Concerns proper form of legal rules. Rigid rules give clearer guidance about rights, yet rules lack flexibility and may interfere with ability to obtain justice. Flexible standards allow contextual judgments, yet provide judges with discretion that they may abuse Arguments for Arguments for Rules Standards Predictability versus Flexibility Predictability Flexibility Predictability Flexibility
1. Rights Arguments Concern justice and fairness in social relationships. P claims D’s conduct has illegitimately deprived P of right to be secure from harm. D says that interest claimed by P does not merit protection and D claims legally protected interest in her own freedom of action P’s Arguments for Security D’s Argument for Freedom of Action Rights Right to security Right to freedom of action Morality Altruism Compensation Individualism No liability without fault Reasonable Expectations Foreseeability Justified Expectations Foreseeability Justified Expectations Distribution: Who should bear loss? Cost internalization Self-Reliance Equality Equal right to security Equal right to develop 2. Social Utility Arguments Concern efforts to promote general welfare or maximize social wealth. Consequentialist in outlook. They judge legal rules by their consequences P’s Arguments for Security D’s Argument for Freedom of Action Behavior Modification; Investment in Safety Encourage safe construction Encourage self-protection Promotion of Investment Secure investment Competition Cost internalization Cost internalization Deregulation of economic activity Transaction Costs; Efficiency Most valued user Free market 3. Judicial Role Arguments Concerned with proper spheres of authority of legal institutions and proper relations among separate branches of government in legal system Arguments for Judicial Activism Arguments for Judicial Restraint Precedent Narrow holding Distinguish a precedent Promote justice Broad holding Reconcile apparently conflicting precedents Stare decisis Institutional Role Judicial activism Purposive interpretation of statutes Judicial restraint Textual interpretation of statutes Institutional Competence Deference to the legislature Judicial responsibility 4. Formal Realizability or Administrability Arguments Concerns proper form of legal rules. Rigid rules give clearer guidance about rights, yet rules lack flexibility and may interfere with ability to obtain justice. Flexible standards allow contextual judgments, yet provide judges with discretion that they may abuse Arguments for Standards Arguments for Rules Predictability versus Flexibility Flexibility Predictability Predictability Flexibility
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