Date: Wed, 13 Oct 2004 14:08:42 -0400

From: Jason Neyers

Subject: Vicarious liability for intentional torts

Dear Axelrod:

Your point is just the traditional realist attack on legal analysis, one which does not, in my opinion, survive its destruction at the hands of Martin Stone, "Legal Formalism" in Coleman and Shapiro, eds., Oxford Handbook of Jurisprudence and Legal Philosophy, Oxford University Press.

Cheers,

axelrod wrote:

Jason Neyers wrote:

Where I would disagree is with your assertion that the courts should be conjuring up "personal" duties and "personal" faults, as in Bazley, on the basis of social policy to fill in perceived "gaps" in compensation. Social policy (in private law) is not something that courts should be engaging in, although I admit that it has quickly developed into short-hand for the judges who no longer understand justice.

cases before appellate courts generally feature opposing briefs each of which has a more-or-less plausible precedential basis for the sought outcome and every lawyer and even the occasional law professor knows that it is simply not true that in most serious appeals there is a clear precedential answer in either direction

so the court must choose

the choice whatever it may be will in fact generally evoke responsive behaviour in some relevant community and there fore will in fact have social consequences

in shaping its choice, should the court consider those consequences and pick that which it socially prefers, or should it ignore the consequences?
or maybe the question is whether there will be any rational basis for choice among the parties' citations other than consequence?

if the court is, whether or not it should, deciding on consequences, or fears to have been influenced by ' policy', should it admit that to be a factor, or instead pretend to decide via a preexisting doctrinal certainty which is a lie?

the difficulties of those questions and a sensible pragmatic approach are enhanced because the court is a generally inappropriate instrument for setting policy--it has often no systematic mechanism for discovering consequences [beyond the exaggerations of the parties] and its members have no electoral mandate to make law

maybe all this explains why judges, in view of the inevitable intertwining of precedent and policy in deciding appellate cases, are supposed to have judgment: -- mixing precedents and policy as seems appropriate in the particular case

--
Jason Neyers
January Term Director
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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