23. }. Andrea Dworkin Guardian. This is a healthy attitude which the law should encourage”); White, supra note 8 at 33 (Lord Steyn: “The litigation is sometimes an unconscious disincentive to rehabilitation [in the context of psychiatric harm]”); John Munroe (Acrylics) Ltd v London Fire and Civil Defence Authority [1996] 4 All ER 318 at 332 (Rougier J: “[B]y far the most important consideration, is what is sometimes referred to as the ‘floodgates’ argument”; and a few lines below: “There seems to be a growing belief that every misfortune must, in pecuniary terms at any rate, be laid at someone else’s door, and after every mishap, every tragedy, the cupped palms are outstretched for the solace of monetary compensation. Do you have a 2:1 degree or higher? 33. 56. The objection is also wrong to impute to Dworkin the thought that an otherwise unprincipled interpretation becomes principled merely by satisfying the requirement of fit with past decisions. 58. See related comment by Lord Roskill in Junior Books Ltd v Veitchi Co Ltd, supra note 10 at 539. A similar solution has been advocated by Marin Levy regarding what she calls “court-centred floodgates arguments” in a methodical work on the floodgates argument in US adjudication (Marin K Levy, “Judging the Flood of Litigation” (2013) 80 U Chi L Rev 1007, esp at 1072). Rylands v Fletcher (1868) LR 3 HL 330 at 339. 77. Deakin, Simon, Johnston, Angus & Markesinis, Basil, Tort Law, 7th ed (Oxford University Press, 2013) at 30.Google Scholar For other arguments made there regarding the floodgates argument, see at 10-11, 30, 142. Early drafts of this paper were presented in workshops at the Centre for Law and Society in a Global Context, Queen Mary University of London; the Legal Theory Research Group, University of Edinburgh; and the World Congress of IVR, Washington DC, 2015. 1. After gutting overtime loss to Titans, Ravens are running out of time — and solutions. This page will bring readers hands-on reviews of the Microsoft Flight Simulator and news of updates, expansion pack releases and wider user community news. Dworkin counters this objection with the following argument. ISBN 10: 0826494420. Dworkin, Taking Rights Seriously, supra note 1 at 111, n 1. File: EPUB, 1.65 MB. Whether you've loved the book or not, if you give your honest and detailed thoughts then people will find new books that are right for them. Elsewhere Dworkin adverts to a concern about “the ‘flood’ of litigation” and “[c]ongestion in the courts” (Dworkin, Law’s Empire, supra note 1 at 28). Dworkin, Taking Rights Seriously, supra note 1 at 108-09, 111 n 1; Dworkin, Law’s Empire, supra note 1 at 312, 338-39. "subject": true, 30. Google Scholar . The analysis yields three principal observations: (1) Judicial resort to the FA is discordant with the rights thesis. 14 DWORKIN: A Matter of Principle, s. 74. Disclaimer: This work has been submitted by a law student. For the same reason, my primary focus in examining Dworkin’s position will be its application to common-law cases. 88. You can view samples of our professional work here. 60. To export a reference to this article please select a referencing stye below: If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! See also the discussion in Toby J Stern, “Federal Judges and Fearing the ‘Floodgates of Litigation’” (2003) 6 U Pa J Const L 377 (where Stern concludes that “arguments that a court is bound to rule lest the floodgates of litigation be opened should be discounted and mostly, if not entirely, abandoned” [422]). Cleveland State Law Review, Dec 1980 John W. Van Doren. See, for example, at 240-44, Dworkin’s illustration of how Hercules would go about the facts of McLoughlin v O’Brian, where Dworkin discards some candidate interpretations of the law as ineligible on the above ground. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide 45. "peerReview": true, Keith LD is on Facebook. Caparo Industries Plc v Dickman [1990] 2 AC 605 at 617-18. 74. See, e.g., Horsey, Kirsty and Rackley, Erika, Tort Law, 2nd ed (Oxford University Press, 2011) at 57-58Google Scholar (referring to “a wish to prevent a ‘flood’ of claims … which may in turn clog-up or slow down the tort system as a mechanism for compensation”); John Cooke, Law of Tort, 10th ed (Pearson, 2011) at 6-7 (noting that “[t]he courts are concerned with opening the floodgates of litigation”, and referring to “the fear of the courts being swamped by a large number of actions”); Michael A Jones, Textbook on Torts, 8th ed (Oxford University Press, 2002) at 96 (“The courts have been traditionally wary of actions which might lead to a flood of claims inundating them with work (the ‘floodgates’ argument)”). Dworkin, Law’s Empire, supra note 1 at 244 (stating that “[j]udges must make their common-law decisions on grounds of principle, not policy”). Ronald Dworkin and the Curious Case of the Floodgates... Get access to the full version of this content by using one of the access options below. A N G E LO C O R L E T T * I. This has not always been the case—see, e.g., Harvey Teff, Causing Psychiatric and Emotional Harm: Reshaping the Boundaries of Legal Liability (Hart, 2009) at 40, noting that the early common law’s approach was “virtually programmed to entrench primitive suspicions and prejudices about ‘invisible’, intangible harm”. See also Bell, supra note 43 at 269, referring to “open-ended standards” as one of the factors accentuating “the increased willingness of judges to overrule and develop the common law”. See also Dworkin, Law’s Empire, supra note 1 at 338-39, where he contrasts common-law precedents with statute. The practical problem revolves around judicial resort to the floodgates argument in civil adjudication (or, more specifically, a version of this argument focused on adjudicative resources, which is dubbed here the FA). I was drinking kir royale. Reference this. Ibid at 31. I was 52. We use cookies to distinguish you from other users and to provide you with a better experience on our websites. In criminal cases, in contrast, Dworkin seems to suggest an asymmetrical exclusion of policy arguments, namely, such that defendants have a right that policy arguments be barred from serving as a ground for conviction, but the prosecution has no right that policy considerations for acquittal be disregarded (Dworkin, Taking Rights Seriously, ibid). Crucially, its content must be such that it states (or, at least, figures in or follows from) a principle of justice, fairness, or procedural due process (Dworkin, Law’s Empire, supra note 1 at 225). See Transco plc v Stockport MBC [2004] 1 All ER 589. 36 Dworkin, R ‘ Is wealth a value ... 103 See Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27. Cf also Witting’s arguments that policy-based reasoning is comparatively “unstable” and more prone to result in inconsistent rulings, and that courts will often not have before them the comprehensive information requisite to be well-placed for policymaking (Witting, supra note 24 at 569-70, 577, 579-80). "crossMark": true, Dworkin's Empire strikes back! 29. 1 Benjamin Cardozo, The Nature Of The Judicial Process, 10 (1921) Close this message to accept cookies or find out how to manage your cookie settings. 57. And to jurisdictions other than those featuring in my examples. 57. 56. Moreover, in Taking Rights Seriously, Dworkin specifically addresses the Spartan Steel case, which he regards as proving his theory of adjudication,as he quotes: ‘That is, I suppose, what is meant by the popular idea that a court must be free to decide a novel case like Spartan Steel on policy grounds.' Hart and Ronald Dworkin - A Critique. Or, more precisely, the version of floodgates argument discussed by Dworkin. Spartan Steelwas such a case. While Dworkin has highlighted some valid and sound reasons against judicial policymaking, his conclusive exclusion of judicial policymaking from civil law adjudication is erroneous. Language: english. It is essential to distinguish in this regard between moderate and extreme views associated (correctly or not) with the label “legal realism”. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. See Greenawalt, supra note 21 at 1004-05 (noting the legislature’s lack of time or political interest to engage itself in establishing rights for every area of the common law). This stance is clearly inconsistent with my position, but only few, if any, legal realists have actually endorsed it in this unqualified form. It should be noted that the trade-off Dworkin envisages does not consist in a freestyle balancing between “fit” and “justification”, but a structured reasoning process governed by conditions and constraints (such as the threshold level of “fit” requisite for an interpretation to be eligible) that shape the interaction between “fit” and “justification”. Render date: 2020-12-19T16:41:01.670Z "relatedCommentaries": true, "metricsAbstractViews": false, (2) The thesis, as stated above, refers to civil cases. Dworkin’s Right Thesis wants us not to relent but to make the utmost effort to get the best answer. jurisprudence essays question give through over view of john legal positivism austin legal theory attempted to separate natural laws and human laws and espoused To much thinking of $$. For a pertinent discussion of different varieties of legal realism, see Cotterrell, Roger, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, 2nd ed (Oxford University Press, 2003) ch 7.Google Scholar See also Leiter, Brian, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford University Press, 2007)CrossRefGoogle Scholar esp ch 1; Hanoch Dagan, “Doctrinal Categories, Legal Realism and the Rule of Law” (2015) 163 U Pa L Rev 1889. See further comment in this general vein in Robert Stevens, Torts and Rights (Oxford University Press, 2007) at 55; Ripstein, Arthur, Private Wrongs (Harvard University Press, 2016) at 87 and 252-53.CrossRefGoogle Scholar. ... Spartan Steel and Alloys Ltd v Martin and Co. [1973] Q.B. Ibid at 100. Shame, shame. Which, to reiterate, Dworkin considers to be a defining characteristic of policy justifications (Dworkin, Taking Rights Seriously, supra note 1 at 82). Google Scholar. I am also grateful for beneficial comments by an anonymous CJLJ referee. 43. Each version of the floodgates argument mentioned in the body text may, in fact, appear in at least three forms: (i) where it is anticipated that the flood of lawsuits would be in cases of the same type as the one at hand; or (ii) where it is feared that recognizing liability in the present type of case would carry with it further expansions of liability in other types of case due to what William Prosser termed “the problem of finding a place to stop and draw the line” (Handbook on the Law of Torts, 4th ed (West, 1971) at 256); or (iii) where both (i) and (ii) are involved. Year: 2007. Angelo Corlett, J Statute Law Review, Volume 21, Number 2, pp. Finally, I would like to thank Juliette Guiot for her valuable work as a research assistant. Taking Rights Seriously. 27. Google Scholar. Post a Review . The foregoing, it may be added, is comparable to the way John Bell speaks of the “political” aspects of the judicial role as involving the function of “giving direction to society” (John Bell, Policy Arguments in Judicial Decisions (Clarendon Press, 1983) at 6-7). 62. 16 It is true, he says, that judges make controversial personal judgments in hard 9. 162–163. Pro případy easy case je typickátzv. 03 August 2018. 69. See, for example, Bernard Rudden’s classification of arguments from consequences (a theme intimately connected to policy), distinguishing between what he calls “behavioural consequences”, “judicial consequences”, and “inbuilt consequences” (Bernard Rudden, “Consequences” (1979) 24 Jurid Rev 193). See Dworkin 1978, pp. 83. Good music is not profitable or something? By “extreme” I mean a position denying that legal doctrine, rules, and principles make (and/or should make) any real difference to judicial decisions, and regarding them as no more than window dressing or a means of rationalization. See Dworkin 1978, p. 27 compared with Aarnio 1997, p. 179. If ‘pure’ economic loss is claimed which does not result from damage, the claim will not succeed (Spartan Steel v Martin)[1] In order to win his claim, C must prove 3 things: D owed him a duty of care D breached the duty of care D’s breach caused the damage, and the damage was not too ‘remote’ 78. "lang": "en" 67. Copyright © Canadian Journal of Law and Jurisprudence 2018, Hostname: page-component-546c57c664-sf4z9 A few examples drawn from Canadian case law include, e.g., Canadian National Railway Co v Norsk Pacific Steamship Co [1992] 1 SCR 1021 at 1153, where McLachlin J endorses a “principled, yet flexible, approach to tort liability for pure economic loss”, such that “it will permit coherent development of the law”; Clements v Clements [2012] SCC 32, where, in delimiting the material-contribution-to-risk doctrine, the court warns against undermining “the fundamental principle … [that a] defendant in an action in negligence … is a wrongdoer only in respect of the damage which he actually causes to the plaintiff …” (at para 16); and Saadati v Moorhead [2017] SCC 28, where the court rejects the limitation of recoverability for mental injury to cases of “recognizable psychiatric illness”, noting that such a limitation is grounded in “no principled reason” (at para 36). 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