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Despite calls for the abolition of assumption of risk, and for its merger within comparative fault, the doctrine survives in some jurisdictions, and its spirit endures in most, if not all. The consensual rationale underlying assumption of risk is distinctive, important, and not easily reducible to the paradigm of victim fault. That rationale helps shape many of the no-duty and limited-duty rules...

In common law jurisdictions outside the United States, Gary Schwartz was the most highly regarded American torts scholar of his time, not least because of the similarity of his approach to the approach adopted by the vast majority of common law scholars outside the United States. This case-law-focused middle theory seeks to promote legal reasoning that is precise, internally coherent, and...

Tort doctrine is both unduly complex and insufficiently developed. Here are some examples. Intentional wrongdoing and product injuries are now treated as discrete areas of the law, rather than being folded into the basic fields of fault-based liability and strict liability. General criteria for determining when one does or doesn't owe another a "duty" in tort are underdeveloped. Inadequate...

This Article considers, from the standpoint of corrective justice, Gary Schwartz's suggestion that tort law should be understood through a mixed theory that affirms both corrective justice and deterrence. When corrective justice and deterrence are both treated as determinants of tort norms, such a mixed theory is impossible, given that corrective justice treats the parties relationally and...

The Fifth Amendment's Just Compensation Clause is a revealing reflection of the Framers' vigilance in preserving property rights and maintaining a balance of power between citizen and state, especially in the specific context of eminent domain. The principle that the state should be generally forbidden from taking private property for public use without just compensation is a leading motif in the...

In this Comment, Jennifer Walwyn examines California Penal Code section 12022.53 and the controversy among the California Courts of Appeal surrounding the vicarious application of firearm sentence enhancements to aiders and abettors of gang crime. She explores the traditional doctrines of conspiracy and aider-and-abettor liability and contrasts those doctrines with the operation of statutory...

Last year, Lawrence Lessig delivered the fifteenth Melville B. Nimmer Memorial Lecture, in which he invoked Professor Nimmer's concern with the balance between copyright protection and the First Amendment right of free speech.' Lessig addressed the imbalance that has developed in copyright law from the point of view of a constitutional scholar. I am an English professor, not a lawyer. Therefore...

Applying the Americans with Disabilities Act (ADA) to denials of treatment by assisted reproductive technology (ART) practitioners raises particularly challenging legal and ethical issues. On the one hand, the danger that physicians will inappropriately deny treatment to patients with disabilities is especially worrisome in the context of ARTs, given the widespread stigma associated with...

This Article discusses what can be done to promote productive behavior in mediation and reduce bad conduct. Although most participants do not abuse the mediation process, some people use mediation to drag out litigation, gain leverage for later negotiations, and generally wear down the opposition. Rules requiring good-faith participation are likely to be ineffective and possibly counterproductive...

During its last term, the U.S. Supreme Court reaffirmed its approval of mandatory arbitration in Circuit City Stores, Inc. v. Adams and Green Tree Financial Corp.-Alabama v. Randolph. The 5-4 votes in these decisions show, however, that this public policy remains controversial. Many firms now require employees to waive their right to sue on employment claims and to submit to their employers'...

Legal scholars have thoroughly analyzed Buckley v. Valeo's treatment of limits on campaign contributions and expenditures. Scholarship has paid substantially less attention to footnote 65 of Buckley, in which the U.S. Supreme Court held that Congress could condition the provision of public funding to candidates on their willingness to accept expenditure limits. Critics have argued that the Court...

In supporting the invocation of stare decisis in constitutional cases, the Supreme Court has maintained that its decisions affect how the people conceptualize the government and their rights. Such an argument, which prioritizes contemporary understandings of the Constitution over both the intentions of Framers and the nuances of doctrine, suggests that constitutional decisions may affect the...

During the decade since the Americans with Disabilities Act went into effect, mental health inquiries by bar examining committees have engendered intense controversy. Courts have reached no clear consensus as to what, if any, questions about mental illness or substance abuse may be posed by licensing agencies. The trend has been towards a form of "relaxed scrutiny" that authorizes inquiries as...

Motion pictures are generally highly collaborative works, containing many different creative contributions. In the United States motion picture industry, most of those contributions are created as works made for hire for an employer or commissioning party, simplifying potential questions as to rights and obligations among the contributors under copyright law. Occasionally, contributions are...