| From: | craig rotherham <craigrotherham@googlemail.com> |
| To: | Volokh, Eugene <VOLOKH@law.ucla.edu> |
| CC: | obligations@uwo.ca |
| Date: | 18/05/2011 17:15:06 UTC |
| Subject: | Re: Judges in tort cases saying that a proposed extension of tort liability should be left to the legislature |
Dear Eugene,
Apologies if someone else has suggested it and I have overlooked it, but I would recommend George C. Christie, “The Uneasy Place of Principle in Tort Law” in David G. Owen (ed), Philosophical Foundations of Tort Law (OUP, 1996). It is a little dated now but has a good discussion of the judiciary’s notions about the limitations of their powers to have regard to arguments of policy in developing the law.
Best wishes,
Craig
Dear colleagues: Judges in tort cases sometimes reject a proposed extension of tort liability on the grounds that it should be left to the legislature (and not just in cases where there’s already a statute foreclosing such liability, which can indeed only be modified by the legislature). The judges obviously recognize that they have the power to create new tort law rules, and that most tort law rules were indeed created by judges; but in some situations, they conclude that they shouldn’t make certain decisions, and that it is only the legislature that should be able to make them. Are there any good articles that discuss this as a general matter, both descriptively and normatively? Many thanks,
Eugene Volokh
UCLA School of Law