I.

CRIMINAL LAW THEORY In response to sensationalistic media accounts and the influence of political pressure groups,
criminal laws are routinely enacted as though they were the natural response to any and all social
Nature of Criminal Law, Crime and Punishment. problems.
• What is Criminal Law? Enacted criminal statutes are unsupported with philosophical theories.
• What makes a given law, or a body of law, criminal?
e.g.: Though the crimes of illicit drug possession and distribution are principal forces that drive the
Specifying the Nature of Criminal Law criminal justice system today, there are still no discussions about drug offenses. There are no
• Conceptual Reason available resources for us to assess whether this development is welcome or unwelcome.
• Practical Reason
• Normative Reason Students are seldom invited to think about why the statute came to be as it is because, typically,
students begin and end their study by applying existing statutes to real or imaginary fact patterns.
Henry Hart lamented,
• A crime seems to be “anything which is called a crime” (Hart 1958:404) We have too many criminal laws, too much punishment, and too little that differentiate criminals
from noncriminals.
Positivistic Thus, there is an urgent need for a better theory to identify the scope and limits of the criminal law.
• “laws are criminal if and only if they are denominated as such by legislatures”
There was one sensible yet an unsatisfactory attempt to set a condition which must be satisfied
Orthodox Position before the state may enact a statute that subjects offenders to criminal liability.
• The single feature that is most helpful to identify the nature of criminal law. • “Harm”
• Laws are criminal when they subject persons who violate them to state punishment.
Unsatisfactory. Why?
CONTROVERSIES
First, 1) Almost any conduct that anyone has ever proposed to criminalize could be said to cause
• In order to hold that laws are criminal when they subject violators to punishment, one harm. (E.g.: Are persons harmed when they are deeply offended?)
need not to produce an altogether satisfactory account of the nature of punishment. 2) The harm requirement encounters difficulties in attempts to differentiate the criminal
State Punishment- regardless of elusive nature, is a defining feature of the criminal law. from civil law. (the latter also presupposes harm. E.g., breach of contract)
3) It is clear that the primary motivation for embracing the harm requirement is to preclude
Second, legal moralism – criminal legislation designed to punish harmless wrongdoing.
• One need not to be able to categorize each borderline sanction on one side of the line or
the other-as punishment or not as punishment-to accept the orthodox position. (the recent growth of the criminal law is fueled less by statutes designed to proscribe immorality
The concept of punishment, like most concepts in ordinary language, is vague and allows for than by statutes that do not seem to involve immorality at all).
borderline cases.
The need for a theory in criminalization 4) Harm requirement, how construed.
(It is enough to meet the demands of the harm principle that if the action were not
The need for a theory in criminalization criminalized, that would be harmful [Gardner and Shute 2000)
Topic of criminalization:
- Criminal theorists have tended to neglect A sensible and satisfactory condition that must be satisfied before the state may enact a statute
- The conditions that must be satisfied before the state may enact a statute that subjects
that subjects offenders to criminal liability is the requirement by which the state must have a
offenders to criminal liability
No good theory of criminalization exists and because of this failure, states throughout the world compelling interest before it allows important fundamental interests to be burdened.
have overcriminalized.
This was drawn from the body of constitutional law that protects interests acknowledged to be as
valuable as our interest in not being punished.
Another case to solve is that (1) there must be a criteria to decide which state interests are
compelling and (2) the state must show that its legislative objective would be harder to achieve Miranda Rights  Theory of Criminalization
without resorting to punishment.
How criminal law may lawfully restrict liberty

Criminal Law is different; it subjects persons to punishment.

Punishment by definition includes both hard treatment and censure, each of which is a clear of
rights in the absence of a compelling justification.

When persons become subject to punishment, more important interests are at stake than the
liberty to perform whatever conduct has been proscribed.

“Justification Test”
- before legislators enact a criminal law, they must be confident that the state would be justified in
punishing persons who violate it.
- good reason to believe that the punishment would be justified.

“Theory of Punishment”
• Conditions under which punishment is justified. Utilitarian Theory
• Conditions under which - It would justify the punishment of innocent persons, in violation of their rights despite
punishment is not justified. their lack of desert.
- -it is a defective theory of criminalization
“Theory of Criminalization”
Theory that demands a higher standard of justification for criminal than non criminal law. Application of Theories in Criminal Law in contemporary legal issues
What standard of justification should be applied to infringe our interest in not being subjected to • Possession of Marijuana
hard treatment? • Abortion
• Death penalty
(conditions that should be satisfied before a criminal law is enacted) • Euthanasia
1. The state need to have a COMPELLING INTEREST before it subjects any conduct to punishment
- criteria to decide which state interest are compelling Compensation in Tort Cases
2. The law must be NECESSARY to achieve the interest. Tortfeasors are required to make restitution to compensate their victims for the losses they cause.
3. The determination that the criminal law is NARROWLY TAILORED to serve the compelling state When compensation is impossible or necessarily inadequate, tort remedies cannot substitute for
interest. criminal punishments.
- (requirement for narrow tailoring) criminal laws must not be overinclusive;

Legal Principles that apply certain theories in

Criminal Law.
Damages  Tort Law Theory  Imprisonment II. PHILOSOPHY OF TORT LAW

Penalties -> Harm Theory NEGLIGENCE vs STRICT LIABILITY

• Harm is prerequisite to liability. NEGLIGENCE
• “One person wrongs another when his indefensible conduct violates the other’s right. “  Negligent torts are the most prevalent type of tort.
- Feinberg 1984:34)
  Negligent torts are not deliberate actions, but instead present when an individual or entity
fails to act as a reasonable person to someone whom he or she owes a duty to.
 The negligent action found in this particular tort leads to a personal injury or monetary
damages.
 Under the negligence rule, the injurer will be held liable only if she exercised precaution
below a level usually determined by the law and/or by the court. This level is called
reasonable care or due care.
STRICT LIABILITY
 a person who infringes upon another’s property right is required by law to compensate
the property owner for infringement, whether those infringements are deliberate or
negligent or without fault is largely irrelevant
 Strict liability is the imposition of liability without fault for damages on the defendant. This
is different from negligence as the burden of proof is not placed on the plaintiff to prove
that the damages were a result of the defendant’s negligence, only that damages occurred
and the defendant is responsible.
 Under strict liability, the courts do not have to set any level of due care because the injurer
has to bear the costs of the accident regardless of the extent of her precaution.
EPSTEIN’S STRICT-LIABILITY CORRECTIVE JUSTICE THEORY
 Epstein – a person who infringes upon another’s property right is required by law to
compensate the property owner for infringement
 Purpose: the law protects each person’s holdings against the infringements of others.
 One’s body is as precious as one’s real property, so invasions of bodily integrity
trigger a right to compensation
WEINRIB AND RIPSTEIN; FAULT-BASED CONCEPTIONS OF CORRECTIVE JUSTICE THEORY
 Restoring and equilibrium that was disturbed by various conduct is a central feature of tort
law
 It is a normative equilibrium which is disturbed only where people have acted in a manner
that they were not entitled to act, outside of their rights.
 Fault is essential to liability in tort
FLETCHER’S RECIPROCITY THEORY
 Fletcher’s 1972 article, “Fairness and Utility in Tort Theory”
 Reciprocity of risks :
 -Each of us accepts a certain degree of risk as a form of vulnerability that we must tolerate
in light of our own production of similar risk to others.
 -GEN. RULE: Generator of realized risks need not bear liability
 -XPN: Non-reciprocal Risk: Liability arises
 a.k.a. NEGLIGENT BASED LIABILITY
 -takes place when people do not use reasonable care in engaging risky activities, that is
why they are responsible to the injuries
 STRICT LIABILITY
 -reciprocity of risk does not apply
 -people engage in abnormally risky activities, and should be held liable for the results of
those risks
MIXED CORRECTIVE JUSTICE THEORIES: COLEMAN AND PERRY
 Coleman: a rights violation is either:
 a wrongful injuring (negligence liability)
 or an infringement of a predefined interest in not being injured through a certain sort of
conduct and as to a particular sort of entitlement (strict liability)
 Perry:
 Normally, a notion that one of the parties was at fault is necessary to a judgement that
that person should fairly bear the burden of injury.
 But, in certain cases the judgement may not require any actual judgement of fault.
FAIRNESS VS UTILITY
 Tort law was the exemplar of utilitarian approach
 Rawls - offered a grand theory of justice deploying a notion of fairness in a central role
 Fletcher – used Rawls’ work as foundation and inspiration for hi ideas in the Philosophy of
tort law
 He argued that notion of fairness was better in understanding tort law
INSTRUMENTALISM VS CONCEPTUALISM
 Instrumentalism has thrived in torts more than in other parts of the law famously for terms
such as proximate cause and duty
 H.L.A. Hart – the legal system as a whole as justified within a utilitarian framework but to
think that understanding of legal concepts requires a non-instrumentalist approach
 Weinrib – part of what makes tort law a form of law is that the concepts within it fits one
another in an integrated manner, and this cluster of integrated concepts manages to
realize a certain kind of normative order rather than advancing one
CORRECTIVE JUSTICE VS DISTRIBUTIVE JUSTICE
 Distributive justice involves proportionality in the allocation of goods among members of
society
 Corrective justice involves the rectification or colloquially setting things right.
 Tort law adheres to corrective justice.
IMPORTANCE IN JURISPRUDENCE AND LEGAL THEORY
Tort Theorists have contributed to jurisprudential debates in 2 ways:
 Looks to the nature of the value system to be utilized in explaining or justifying bodies of
law
 Looks to the nature of the analytical process be used in creaking down and understanding
the law.

FAIRNESS versus UTILITY
 -1960, Oliver Wendell Holmes: Tort Law was the exemplar of Utilitarian approach
 -1971, Jonh Rawls in Theory of Justice: Deploying a notion of “fairness” in a central role
 -1972, George Fletcher’s Fairness and Utility in Tort Law”: though utilitarian theorizing
reigned supreme in tort law, he argued that using the notion of fairness was better for
understanding tort law.
 So given that jurisprudence enjoyed using moral and political philosophy, expect that these
changes to be reflected in legal theory.
 Fletcher’s article is emblematic of a paradigm battle between economically oriented
theorists and deontological oriented ones.
 There is still a battle of utilitarian theories and non-utilitarian ones in the philosophy
 Of law
INSTRUMENTALISM versus CONCEPTUALISM
 Instrumentalism has thrived in torts famously for terms such as “proximate cause” and
“duty”, and for fundamental principles, such as the requirement that defendant’s conduct
actually accused plaintiff’s injury
 Ernest Weinrib: Anti-instrumentality
 Bipolarity Critique of Weinrib and Coleman
III. CONTRACT THEORY
CONTRACT LAW, defined
 Governs the range of behavior loosely connected by the idea of promising.
When X proposes to Y, and Y accepts, we say by convention that X and Y exchanges
promises.
If X subsequently breaks the promise, CONTRACT LAW determines whether the victim of
the breach is entitled to a remedy.
 Determines the nature of remedy, and provides background and interpretative
presumption for use when the term of the contract are vague and incomplete.
 Theories of contract law purport to show that CONTRACT LAW has an internal logic.
WELFARISM: LAW AND ECONOMICS
 Contract law has an economic logic.
 The economic theory of contract law holds, minimally, that economic concepts can be used
to illuminate contract law.
This economic theory of contract law assumes that:
1. individuals conform to rationality assumptions of economic theory.
2. contract law promotes efficiency.
1st premise: INDIVIDUALS CONFORM TO THE RATIONALITY ASSUMPTION OF ECONOMIC
THEORY Individuals have preferences over states of the world;
 That people’s behavior conforms to their preferences;
 That this preferences are consistent and transitive
2nd premise: CONTRACT LAW PROMOTES “EFFICIENCY”
 Economist think of contract law from an “ex ante” perspective – as an institution that
parties voluntarily invoke in order to arrange their affairs.
 To understand what efficiency requires, one must first see that contract related behavior
occurs along many margins.
 Contract law produces the same outcome as complete (efficient) contract by providing the
optimal term in the form of default rules.
NONWELFARIST THEORIES
 Many legal philosophers reject the welfarist approach to contract law and argues that
“contract law reflects non welfarist commitments”
 Two views:
1. Contract law reflects corrective justice
2. Contract law respects the autonomy of promisor and promisee.
CORRECTIVE JUSTICE
 Often called the reliance theory because of its focus on the reliance of the promise.
 According to Fuller and Perdue, reliance damages are the appropriate remedy not
expectation damages or specific performance.
 Defenders of reliance theory have argued that the failure of contract law to conform to the
requirements of the reliance theory shows that the contract law is unjust.
LIBERAL THEORY
 Derives contract law from the morality of promising or cooperating.
PROMINENT PHILISOPHERS:
FRIED
 Fried argues that people have normal and moral right to alienate their property.
 They do so by exchanging it for other things, and this inevitably involves making promises.
  If the law does not enforce promises, people would have difficulty binding promises and so
an important aspect of their freedom would be lacking.
BARNETT
 Barnett argues that the law concerns itself with protecting people from nonconsensual
taking of their property.
 But if people consent to alienation, then the law should permit that alienation.
 Contract law enforces promises because by making promise, people consent to its
enforcement by the law.
SCANLON
 Emphasizes the perspective of a the promisee.
 Just as individuals have the right not to be deceived by the representation of others, they
have a right not to be misled by the promises of others.
 Contract law protects this right by giving the promisee a remedy when the promise is
broken.
AUTONOMY
 The theories share the premise that the law should respect individual autonomy.
 Autonomous people have the freedom to arrange their lives in any way that they see fit, as
long as they do not violate the autonomy of others.
HISTORICAL EXPLANATION
QUESTION:
If contract law reflects a single moral structure, what accounts for its variation across time and
place?
 First, morality changes across time and place; the deep moral commitments remains
constant and embodied in law, even as more superficial commitment change.
 Second, morality remains constant but empirical conditions change.
 Third, contract law does not reflect general moral commitments, but is a hodgepodge,
reflecting not just moral ideas, but politics, mistakes, ideology, general institutional
developments and so forth.
TOPICS IN CONTRACT THEORY
FORMALISM
 Contract law, like testamentary law, is facilitative, and the law best enables people to
accomplish their goal by making the legal consequences of alternative actions as clear as
possible. (Fuller 1941)
REDISTRIBUTION
 Contract law does redistribute wealth ex post, from the breacher to the victim. The
expectation measure puts the victim in the position he or she would have been if the
promisor had performed; the reliance measure returns the victim to the status quo.
PATERNALISM
 Within the non economic contract literature most scholars agree that paternalism plays a
role in the doctrine, albeit quite a small role against a general presumption in favor of
freedom of contract.
CONCLUSION
 As long as the rules together provide sufficiently strong sanctions- whether they be
expectation damages or something else- for those who break promises in sufficiently wide
range of settings, then efficiency is probably satisfied.
 The rules of contract law might be like the rules of the road: adequate, as long as everyone
agrees on what the rules are, within very broad constraint that can be identified without
rigorous analysis.
IV. The Commons and Anticommons in the Law and Theory of Property
Introduction and Familiar Analyses of the Concept of Property
Introduction: Commons and Anticommons
COMMONS
a resource which all have a liberty-right to use, from which no one has a normative power
to exclude others, and which no one has a duty to refrain from exploiting.
TWO APPROACHES:
1. OPEN-ACCESS RESOURCES – anyone may come in and take out units of the resource, but
no person or set of persons may sell or manage the resource
2. COMMONS PROPERTY – the members of the group individually have rights to entry and
withdrawal and collectively have rights to manage or sell the resource and to exclude
nonmembers (Eggertsson 2003: 73-4)
ANTICOMMONS
preliminarily, a resource from which each person has a normative power to exclude others
and which no one has a liberty-right to use without the permission of the others.
Familiar Analyses of the Concept of Property
 • Thus, Honoré in effect builds on Hohfeld by taking the fundamental legal conceptions and
Bundle-of-Rights Analysis making them more specific by indicating certain actions or events, e.g. to use, to sell, to
• Views property as a package of rights among persons with respect to things exclude, in relation to other persons with respect to things
• The word “rights” is used in a broad fashion that includes the following normative • The bundle-of-rights analysis facilitates further clarification of the concept of property.
modalities, which were mapped out systematically by Hohfeld: claim-rights, liberty-rights, • If someone has all or almost all of the incidents with respect to a given thing, one can
and immunities speak of ownership.
• According to Hohfeld, each of these modalities has a “correlative”, i.e. a counterpart • If someone has rather less than the full package of incidents, as with easements or
modality held by a different individual. bailments, there is limited property.
• The term property rights can be reserved for incidents that are advantageous to the
EXAMPLES: property holder. The claim-right to possess and the powers to sell and exclude, for
• If A has a claim-right to $50 from B, then B has a duty to pay $50 to A. example, are advantageous to the property holder, whereas the duty not to use harmfully
• If A has a liberty-right to walk across the lawn, B has “no right” to interfere with A’s walking is disadvantageous to the holder.
across the lawn. • It is possible to identify different sorts of property depending on the identity of the right-
• If A has a power to bequeath jewelry to B, B has a “liability”, i.e. a susceptibility to having holder. Thus, an individual person or a corporation has private property, a tribe has
B’s legal position altered with respect to the jewelry, to receive the jewelry upon A’s death. communal property, and a government has public or state property. These and related
• If A has an immunity against the government’s inundating A’s farm without the payment of distinctions form the core of the bundle-of-rights analysis (Munzer 1990:15-36).
just compensation, the government has a “disability” (or “no-power”) with respect to
flooding A’s farm unless it pays A just compensation. Rule-governed Entitlements Analysis
• Proposed in Calabresi and Melamed (1972)
Hohfeld’s Fundamental Legal Conceptions • An entitlement is, roughly, an interest that the law does or should protect. The law can do
so by using one or more different sort of rules: “property rules”, “liability rules”, and “rules
of inalienability”.
MODALITIES CORRELATIVE
• A property rule protects an entitlement if anyone who wishes to remove it from its holder
Claim-right Duty must buy it from the holder in a voluntary transaction at a price agreed upon between the
buyer and the holder-seller.
• A property rule so defined applies only to market-alienability; an owner could always give
Liberty-right “No-right”
an entitlement away, provided that the donee accepts the gift.
• A liability rule protects an entitlement if and only if anyone who takes or lessens the value
Power “Liability” of the entitlement must pay a collectively determined amount to its holder.
• A rule of inalienability protects an entitlement if and only if its transfer is not permitted
Immunity “Disability” or “No-power” between a willing buyer and willing seller, e.g. the attempted sale of one’s left kidney to
someone else.
Honoré: “Incidents” of Ownership • A property rule, in this analysis, involves a collective decision about who gets an initial
• He sought to specify the standard “incidents” of ownership common to Western legal entitlement but not as to its value, whereas a liability rule involves collective decisions on
systems. both who gets an initial entitlement and what it is worth.
• His list of incidents, with minor adjustments, includes ff: • A rule of inalienability not only protects an entitlement but also limits or regulates it; it
 The claim-rights to possess, manage, use and receive income involves the most state intervention.
 The liberty-rights to consume or destroy • Most entitlements are protected by a combination of property rules, liability rules, and to a
 The powers to sell, give, transfer, exclude, and abandon lesser extent, rules of inalienability
 The immunities from forced sale and government expropriation
 The duty not to use harmfully EXAMPLE:
 The liability for execution to satisfy a court judgment. A owns land that A is developing into a retirement community. B owns a cattle feedlot
close to A’s land. The feedlot creates unpleasant odors and draws flies. These conditions would not
affect A’s land in its raw state but reduce its value as a retirement community. However, B’s feedlot Commons: Two Categories
was in operation when A purchased the nearby land from a prior owner. The rule-governed 1. Open-access resources owed by no one, e.g. Ocean waters for fishing, groundwater
entitlements analysis generates four possible rules: 2. Commons property, e.g. Communally owned fields
• RULE 1: A has an entitlement, protected by a property rule, to be free from pollution.
• RULE 2: A has an entitlement, protected by a liability rule, to be free from pollution. Commons vs. Public Good
• RULE 3: B has an entitlement, protected by a property rule, to pollute. • The use of Public Good does not lessen the availability of use towards other while the use
• RULE 4: B has an entitlement, protected by a liability rule, to pollute. of Commons lessens its availability to society.
• Example of Public Good is national defense
Which rule would be best in the circumstances?
ANSWER: Tragedy of the Commons
• Under Rule 1, A could extract a high price from B or get an injunction against the feedlot By Hardin (1969)
• Under Rule 3, B could extract high price from A or continue to operate. • The effects of overusing the commons
• Rule 2 would allow B to operate but require B to pay damages to A. • The theory that all or most who have access to a commons succumb to the temptation to
• The court that faced this case (Spur Industries, Inc. v. Del E. Webb Development Co. 1972) overuse it.
in effect opted for Rule 4 – but out of a sense of which outcome would be most • Example: depleted fisheries, air pollution, overgrazed fields
appropriate rather than economic modeling. It held that A’s retirement community was PROPOSED SOLUTION:
entitled to be free from pollution, but that, because B was there first, A had to pay B for • Private property
the cost of shutting down or relocating • Taxes

The BUNDLE-OF-RIGHTS ANALYSIS and the RULE-GOVERNED ENTITLEMENTS ANALYSIS of property The Anticommons and Its Tragedy
are intertranslatable and compatible. The sorts of rules distinguished by Calabresi and Melamed can
be stated in Hohfeld’s vocabulary. Anticommon property, defined
 If A’s entitlement is protected by a property rule, then others have a disability (a no- A property regime in which multiple owners hold effective rights of exclusion in a scarce resource.
power) in regard to obtaining the entitlement except by paying a price acceptable to A.
 if A’s entitlement is protected by a liability rule, then others have a disability in regard to FOUR RESPECTS HELLER IMPROVES PRIOR EFFORTS TO THINK ABOUT THE ANTICOMMONS:
obtaining or reducing the value of the entitlement unless they pay A a collectively 1. Doesn’t require that everyone has the power to exclude
determined amount. 2. Suboptimal
 If A’s entitlement is protected by a rule of inalienability, A has a no-power to transfer the 3. Multiple powers exclusion need not all derive from the legal system
entitlement to others save as permitted by law. 4. Prevails only to certain resources

The enduring value of this analysis rests on the lights it throws on the interconnections between Examples:
property, tort, and contract; on its sensitivity to both distributional and efficiency consideration; 1. Patent
and on the choice between civil and criminal sanctions for violations of property rights. 2. Storefronts in Moscow, Russia

The Tragedy of the Commons The Boundaries of Private Property

Commons
• “a resource that has a liberty-right to use and no-power right to exclude others and which
no one has a duty to refrain from exploiting.” using the language of Hohfeld and Honore
• “an entitlement protected by neither property rules nor liability rules, save a liability rule
that forbids each from interfering inn specified ways - say use of force - with others in the
use of the entitlement.
 The Numerus Clausus Principle

Numerus Clausus vs. Contracts

NUMERUS CLAUSUS
The number of forms and property is closed and limited. Real property can only be conveyed in
small number of forms such as fee simple, life estate and lease.

CONTRACT
An agreement having a lawful object entered into voluntarily by two or more parties, each of whom
intends to create one or more legal obligations between them

Numerus Clausus on Intellectual Property Rights

Property Law • It effectively acts as a prohibition on nonpossessory property interests in particular copies
• Responds with diverse doctrines that prevent and abolish excessive fragmentation and of copyrighted works and patented inventions
keep resources well-scaled for productive use.
Marital Property and Retrospect and Prospect
DANGER OF FRAGMENTATION: Marital Property
• If too many people gain rights to use or exclude then bargaining among owners may break • Frantz and Dagan begin with premise that marriage is ought to be, an egalitarian liberal
down community.
• Hence, legislatures prevent such waste by drawing boundaries • In an ideal marriage and in many actual marriage, spouses perceive themselves as “we” –
plural subject.
Takings • This conception of marriage has implication of assets acquired during marriage.
Taking clause • It implies, argue by Frantz and Dagan, that both spouses have the right to control them and
Heller & Kier that, upon divorce, each spouse has an equal right to them.
1. “standard view of taking” • Marriage in terms of an egalitarian liberal community provides the necessary normative
• No taking at and hence no compensation underpinnings to much of existing marital property law
• There is taking and government must compensate • Thus, we maintain that earning capacity gained during the tenure of marriage should be
2. The four possible decision included within the marital estate. Likewise, we claim that the rights of both spouses in the
• No taking but there is compensation marital estate should be recognized not only for the purposes of division upon divorce, but
• Without taking but there is compensation also insofar as governance during the pendency of marriage is concerned.
3. Efficiency and justice is the purpose of taking clause
• No historical or arguments but instead “ there appears to be virtual consensus Marital Property
Several features and limitation of Frantz and Dagan’s proposed marital property regime merit
comment
BOX 1 BOX 2 1. Their account seeks both to explain and justify.
Ordinary Regulations Taking/No Compensation 2. Their account set forth's what academic lawyers call default rules: rules that will apply
unless people do something to avoid them.
3. Autonomy has to do with legally free exit, not individual desert.
BOX 3 BOX 4 4. The assets subject to division upon divorce do not, with a few exception, include property
No Taking/Compensation Ordinary Taking acquired before marriage.

Retrospect and Prospect

 • Hardin and Heller point out disadvantages of commons and anticommons. Their novel
analyses shed light on the law and theory of property. Yet each analysis, when extended Legal Adjudication
beyond sensible limits, reveals flaws. • The legal process of resolving a dispute. The formal giving or pronouncing of a judgment or
decree in a court proceeding; also the judgment or decision given. The entry of a decree by
a court in respect to the parties in a case. It implies a hearing by a court, after notice, of
V. LEGAL EVIDENCE legal evidence on the factual issue(s) involved. The equivalent of a determination. It
indicates that the claims of all the parties thereto have been considered and set at rest.
UNIFIED THEORY: THE SEARCH FOR TRUTH • an example of social epistemology, because it is devoted to an epistemic end-finding the
UNITY THESIS: is a thesis about the dominant aim or rationale of evidence- handling truth
procedures. • Social in the sense that: involves transactions among many participants
SUBSTANTIVE JUSTICE: is a matter of treating individuals in appropriate place given:
1. The content of the law Is the adversary system a good way of finding the truth?
2. The genuine or true, facts concerning the actions they performed and the Test case: “discovery” of evidence
circumstances of those actions ◦ CIVIL ACTION
PROCEDURAL JUSTICE: is a treatment that results from the correct application of proper ◦ POSITIVE: documentary evidence that favors its case
procedures or processes. ◦ NEGATIVE: NOT in favor of the case
1938 Federal Rules of Procedure incorporated procedures for obtaining pre-trial disclosure
Adversary System and the Search for Truth of potential evidence, both positive and negative to solve the problem of “trial by
Adversary System ambush”.
Definition: The adversarial system or adversary system is a legal system used in the ◦ Successful in preventing “trial by ambush” but not very successful in getting
common law countries where two advocates represent their parties' positions before an parties to disclose negative evidence
impartial person or group of people, usually a jury or judge, who attempt to determine the
truth of the case Talbott and Goldman (1998) argue that the adversarial tradition fosters a “Fair Fight” ethos in
Philippines: litigation, in which each side is supposed to do their best to win and nobody is expected to do
• Revised Penal Code from Spain anything that “helps” the other side.
• Philippine courts organized pursuant to US pattern This might encourage the notion that it is legitimate for attorneys to assist their clients in “ducking
Today the Philippines is considered a “mixed jurisdiction,” a hybrid of civil and common law and dodging” when an opponent tries to extract negative evidence, BUT THIS CONCEPTION IS
traditions. INCONSISTENT WITH THE TRUTH RATIONALE FOR A LITIGATION SYSTEM.

From the vantage point of truth Truth, Reliability and Bayesianism

PROS Relevant Evidence
• Marshalling of evidence: highly motivated to pursue lines of investigations more ‘‘any tendency to make the existence of any fact that is of consequence to the determination of the
thoroughly action more probable or less probable than it would be without the evidence.’’ (FRE 401)
• Truth determination: dialectical augmentation of the trial
CONS Rational Degrees of Belief
• Neutral judges as investigators may not have a comparable level of motivation or FRE 401 says that relevant evidence is evidence such that rational people would assign a
dedication higher or lower degree of belief (or subjective credence) in the existence of the fact if they
• Disparities in legal representation between opposing sides become a serious were given the evidence than they would assign without the evidence.
liability
• Not everything partisan lawyers do consists in augmentation; can tilt evidence Bayesianism
• Expert witnesses= “prostitutes” (People who live by selling services that should According to Bayesianism, the most prominent theory of probability and evidence, it is rational to
not be for sale) conform one’s degrees of belief to the probability calculus.
But according to Bayesianism what makes it rational to raise, lower, or maintain one’s degree of
belief in a hypothesis depends on one’s prior degrees of belief about the likelihood (conditional
probability) of getting the evidence if the hypothesis is true versus the likelihood of getting that
evidence if the hypothesis is false
Bayesian agents use the following formula to update their degree of belief in hypothesis H if given
evidence E:
1. one might propose that triers of fact (jurors) should use Bayesian methods, and therefore
should be instructed in these methods by suitable experts.
2. one might propose Bayesian methods as a tool for legal theorists, who seek to analyze the
impact of various rules.
‘Quasi-objective Bayesianism’’ a theoretical approach that studies what will transpire if agents
reason in a Bayesianism fashion and their subjective likelihood estimates bear certain relationships
to the objective values of these likelihoods.

a target hypothesis might be H =‘‘Brown shot Jones,’ ’and the evidence might be E= ‘‘a gun with
finger-prints matching Brown’s fingerprints was found near Jones’sbody.’’ The likelihoods of
interest are P(E / H) and P(E /H).

The distinctive feature of quasi-objective Bayesianism is the assumption that these conditional
if their subjective estimate of P(E/H) exceeds their subjective estimate of P(E/H), will decrease their
probabilities have objective as well as subjective values.
degree of belief in H if their subjective estimate of P(E/H) is less than their subjective estimate of
Given this assumption, the use of subjective likelihoods that match the objective likelihoods
P(E/H), and will leave their degree of belief in H unchanged if their subjective estimate of P(E/H)
will, on average, lead a reason closer to the truth.
equals their subjective estimate of P(E/H)
Theorems :
So, under orthodox Bayesianism, whether a given piece of evidence increases, decreases, or leaves
1. Theorem on Expected Increases in Truth-possession:
unchanged the degree of belief in a factual hypothesis depends on their subjective likelihood ratio,
If an agent uses new evidence to update his degree of belief in a hypothesis by
that is, P(E/H) divided by P(E/H).
Bayesian methods, and if his subjective likelihoods match the objective likelihoods, then there is an
objective expectation that he will increase his degree of truth-possession with respect to this
Orthodox Bayesianism is purely subjectivist, or ‘‘personalistic.
hypothesis.
2. Theorem on Relative Discriminatingness:
Joseph Kadane and David Schum admit that subjectivist methods cannot promise objectivity or
The more extreme the objective likelihood ratio associated with a given item of
truth-conduciveness. ‘‘Should persons adopting an...approach [like ours]...believe that his approach
evidence, the greater is the expected increase in truth-possession that comes from conditionalizing
leads us closer to ‘the truth’...? The answer is no’’ (1996: 197).
on that evidence.
Reliability
In many arenas of testimony, the Supreme Court has appealed to reliability as the crucial element
for admissible testimony.

‘‘the trial judge must ensure that any and all scientific testimony or evidence admitted is not only
relevant, but reliable’’ (Daubert v. Merrell Dow Pharmaceuticals 1993: 589).

Testimony is considered reliable if it is likely to be true or accurate.

If Bayesianism is to be serviceable as a general theory of legal evidence, it must be extended

beyond
purely subjectivist forms of Bayesianism.

In considering Bayesianism in the context of legal evidence, two things might be meant.