Dworkin lays down his thesis: Judicial decisions in civil cases, even in hard cases like Spartan Steel, characteristically are and should be generated by principle not policy. "languageSwitch": true 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”. a fear of floodgates opening]—certainly not sufficiently to deprive this plaintiff of just compensation for the reasonably foreseeable damage done to her” (Lord Russell in McLoughlin v O’Brian, supra note 55 at 429); “It would surely be wrong to exclude from probation a claim which is so strongly based, merely because of anxiety about the possible effect of the decision upon other cases where the proximity may be less strong” (Lord Fraser in Junior Books Ltd v Veitchi Co Ltd, supra note 10 at 533); “I see no reason why, if it be just that the law should henceforth accord that remedy, that remedy should be denied simply because it will, in consequence of this particular development, become available to many rather than to few” (Lord Roskill, Junior Books Ltd v Veitchi Co Ltd, supra note 10 at 539). Dworkin, Taking Rights Seriously, supra note 1 at 98. 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). Copyright © Canadian Journal of Law and Jurisprudence 2018, Hostname: page-component-546c57c664-sf4z9 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. Unique Sports Stickers designed and sold by artists. 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. Google Scholar. I was drinking kir royale. 27. 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”. See Dworkin 1978, pp. London: Duckworth, 1977, 90-100; Dworkin, R. A Matter of Principle. Book design by Ellen R. Sasahara Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1 Library of Congress Cataloging-in-Publication Data Dworkin, Andrea. 57. The plaintiff did not argue that any statute provided it a right to recover its economic damages; it pointed instead to certain earlier judicial decisions that awarded recovery for other sorts of damage, and argued that the principle behind these cases required a decision for it as well. Rylands v Fletcher (1868) LR 3 HL 330 at 339. What were recording companies thinking in those days? 8. "openAccess": "0", (2) The thesis, as stated above, refers to civil cases. Feature Flags: { "lang": "en" Publisher: Bloomsbury Publishing PLC. 47. After gutting overtime loss to Titans, Ravens are running out of time — and solutions. (3) The FA is a type of policy argument particularly vulnerable to objections against judicial policymaking. 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)”). * Views captured on Cambridge Core between 03rd August 2018 - 19th December 2020. At the prescriptive level, Dworkin maintains that, at least in common law decisions, judges should never decide on the basis of policy. Given that many of the cases wherein the FA has been invoked are tort cases. Keith LD is on Facebook. Finally, I would like to thank Juliette Guiot for her valuable work as a research assistant. Registered Data Controller No: Z1821391. How does my position relate to legal realism? Dworkin, Taking Rights Seriously, supra note 1 at 108-09, 111 n 1; Dworkin, Law’s Empire, supra note 1 at 312, 338-39. 85. See also Rachael Mulheron, “Rewriting the Requirement for a ‘Recognized Psychiatric Injury’ in Negligence Claims” (2012) 32 Oxford J Legal Stud 77 at 107-11 (where, in arguing against the recognized-psychiatric-illness requirement for mental injury redress, Mulheron highlights legal tools by which the number of potential claims could effectively be ‘ring-fenced’ if her proposal is adopted). Get up to 50% off. I was 52. 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.' social welfare system]”). 03 August 2018. 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. Dworkin's Empire strikes back! 46. Feature Flags last update: Sat Dec 19 2020 16:01:45 GMT+0000 (Coordinated Universal Time) Post a Review . 13 Dworkin povaţuje hard cases za méně početné soudní případy. 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). The point made here shares some of the intuitions expressed in John Umana, “Note, Dworkin’s ‘Rights Thesis’” (1976) 74 Mich L Rev 1167 at 1179-81 (where it is observed that Dworkin is able to accommodate apparent counterexamples to his rights thesis “only by engaging in a conceptual ‘gerrymandering’ that abandons his original formulations of the principle-policy distinction”), and Greenawalt, supra note 21 at 1003 (where it is noted: “If we interpret Dworkin’s theory to provide reasonable responses to questions of how courts are supposed to weigh interests of nonparties, the distinction between principles and policies becomes much more blurred and almost vanishes”) and at 1016-26. For the same reason, my primary focus in examining Dworkin’s position will be its application to common-law cases. Ibid at 88, 113. See, e.g., George C Christie, “The Uneasy Place of Principle in Tort Law” (1996) 49 SMU L Rev 525 at 526 (referring to “the assumption that the law is seeking to achieve the more efficient allocation of society’s resources” as a principle). 2. Some might be genuine, but many might be inflated, or even false. }. Dworkin’s Right Thesis wants us not to relent but to make the utmost effort to get the best answer. Ibid at 955. 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). 75. Oxford University Press is a department of the University of Oxford. 40. 42. 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. Dworkin, Taking Rights Seriously, supra note 1 at 83. } 13. And to jurisdictions other than those featuring in my examples. 86. 12. 36 Dworkin, R ‘ Is wealth a value ... 103 See Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27. 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]). See also Dworkin, Law’s Empire, supra note 1 at 338-39, where he contrasts common-law precedents with statute. Dworkin's account of the legal resolution of hard cases draws upon his criticism of the "positivist" theory of law attributed to HLA Hart.12 In Hart's account, the duty of the judge is to apply the established rules of law wherever available. Dworkin describes an … 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.' Any song she sang was a second-by-second lesson in the meaning of mortality. To a similar effect, see Bell, supra note 43 at 6, 224. Spartan Steel, supra note 8 at 38 (Lord Denning: “[M]ost people are content to take the risk on themselves. Cleveland State Law Review, Dec 1980 John W. Van Doren. 10. 1. Cambridge: Harvard University Press, 1985, Ch 3; and the judgment of Lord Denning MR. in Spartan Steel & Alloys Ltd v Martin & Co. (Contractors) Ltd. [1973] 1 QB 27 at 39. 81. Dworkin, Taking Rights Seriously, supra note 1 at 113. 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