1:04 p.m. - I'm going to try something new: live-blogging a lecture. This is a new lecture series on the Philosophy of Law here at the Marshall Wythe School of Law at William & Mary. W&M Law Professor Michael Steven Green is giving the introduction to Professor Jules Coleman. Coleman is the Wesley Newcomb Hohfeld Professor of Jurisprudence and Professor of Philosophy at Yale University. Coleman is the author of The Practice of Principle, Risks and Wrongs, and Markets, Morals and the Law, as well as many other books and articles in the philosophy of law and tort theory.
Prof. Green says that Prof. Coleman is a giant in torts theory.
1:05 p.m. - Prof. Coleman takes the stage in Room 141. Prof. Coleman learned from Guido Calabresi, a distinguished professor of Coleman's who "had the wrong views." He says he teaches from Calabresi's notes, but with a caveat: he puts a negation in front of what Calabresi said. (NOTE: Calabresi taught at Yale, and was nominated to the Second Circuit Court of Appeals by Bill Clinton in 1994. He still sits there today.)
1:08 p.m. - When people think about the philosophy of law, they think about it in a normative way. Tort law is not that way. What is tort law? What is essential about it? How does it differ from criminal law, contract law and other kinds of law?
1:09 p.m. - A good theory of tort law should resonate with its participants. It should be hermeneutic — participants in the kind of law should recognize their practice in a good legal theory. "I'm trying to offer a theory of tort law that makes sense to the people who are participants in it," Coleman says.
1:11 p.m. - Economic analysis. Time to talk about bad luck. Bad luck leads to people having to absorb costs. What should we do about these costs? Two obvious things: one, we should try to minimize them. Another thing is to try to spread their costs.
1:12 p.m. - Tort law provides remedies to people who get injured. If you're an economist, you might look at tort law and say it's all about deterrence. That might be plausible, but it may not resonate with the participants in practice.
1:15 p.m. - "It's a good question to ask when you're trying to offer a theory of the law: What kind of explanation are you trying to offer?" Coleman says.
1:17 p.m. - Coleman is interested in the question: Should the theory of a certain area of our social life be responsible to what participants think?
1:18 p.m. - Coleman is skeptical about the application of his theory to theories about markets. "No one in their right mind" would think that market theories should depend upon what market participants think about markets, he says. The same is true of language, and speakers of it. Linguists and language theorists don't think that language speakers should have theories about language. Who would care about such theories? Well, maybe being a judge is different, Coleman says. A judge may have to have some level of understanding about the role that a judge plays in the law. "How is law different from other kinds of social engagement?" he asks.
1:22 p.m. - Coleman makes a joke. "You're in law school, you have competent teachers. I'm supposed to slip that in three times during the lecture. I've done it at 20 after, I'll do it again at 40 after ..."
1:24 p.m. - Coleman mentions that his theory is corrective justice. "Sounds good, doesn't it? What kind of justice do you stand up for? Corrective justice. As opposed to what? Incorrective justice." The audience laughs.
1:25 p.m. - Coleman provides the elements of torts: duty, breach, harm. He cites Justice Cardozo in Long Island R.R. But what makes these the elements of torts? What does a theory of torts try to accomplish? For most people who make theory about torts, he says, it's about trying to predict the outcome of cases. They're not trying to say why duty matters, why breach matters, etc.
1:28 p.m. - The economic theory of torts is uninteresting to Coleman, unless it has one more thing. Is it an accidental relationship between the theory and the outcomes of cases, or is there a mechanism at work that connects the theory to the outcomes of cases.
1:30 p.m. - "I actually think very highly of myself as a torts theorist," Coleman says. Now he makes a joke about being a psychotherapist, being aspirational, and being Jewish. A number of people are laughing. I'm typing furiously and I don't know the Jewish-psychotherapy connection, so I don't get it.
1:33 p.m. - Coleman is trying to engage a 1L, who's not laughing at his jokes. This lecture is being filmed, by the way. Not sure how or when it will be available.
1:34 p.m. - Coleman believes the paradigmatic tort is a wrong, not an accident. If I want to understand tort law, I should want to understand intentional torts, he says. Coleman switches gears to contracts and specific performance being the paradigmatic remedy for contracts. HYPO: Let's say I promise to paint your house ("very unlikely," he says). Someone comes up to him and says, you promised to paint my house, but you didn't paint my house. There's no reason for you not painting my house. Why does the person who asked for the house to be painted need to provide a special reason for having the painter paint the house? If you think that contracts are promises, you would think about why specific performance is appropriate, when it is appropriate.
1:40 p.m. - Coleman's making a joke, plugging his book because he has children in the arts and has to support them.
1:42 p.m. - When an economist looks at tort law, he sees three things: accidents, costs, and liability as a mechanism for shifting costs. "As a philosopher, I see more concepts, and different ones," Coleman says. "I see rights and wrongs. I see responsibility. I see costs as a mechanism for holding people accountable. I don't see costs at all. They're not primary to me. The notion of duty is primary to me, and an action contrary to a right is primary to me."
1:44 p.m. - When Coleman looks at tort law, he sees it as a subject already influenced by some working theory he has of it. He doesn't look at it in a completely normative, neutral way. In contracts, he wants specific performance. On the philosophical side, he says there are moralists in the theory of tort law. "I take great pride in the fact that no student of mine ever holds a theory that I hold," Coleman says. Even though he's a legal positivist, and legal positivism is the most common legal theory, he says that no student of his is a legal positivist.
1:48 p.m. - Coleman says that Richard Epstein is an institution, who cranks out legal ideas faster than anyone, and has views about everything.
1:52 p.m. - The lecture is going to have to end soon, sadly, because many students and professors in the room will have to attend 2:00 classes. Looks like there won't be time for questions.
Here are the next two lectures in the series (courtesy of the W&M Communications office):
March 19, 1 PM, Room 141: Michael S. Moore, Walgreen Chair and Co-Director, Program in Law and Philosophy, University of Illinois College of Law. Professor Moore is the author of Educating Oneself in Public, Placing Blame, and Act and Crime, as well as many other books and articles in the philosophy of law and criminal law theory.
March 26, 3:30 PM, Room 127: Lawrence A. Alexander, Warren Distinguished Professor, University of San Diego Law School. Professor Alexander is the author of Is There a Right of Freedom of Expression?, Whom Does the Constitution Command? (P. Horton co-author), and The Rule of Rules: Morality, Rules, and the Dilemmas of Law (E. Sherwin co-author), as well as many other books and articles in the philosophy of law, constitutional law, and criminal law theory.
1:55 p.m. - Coleman has given a summary of people doing philosophy of law — stuff he's interested in. He's giving a reading list, a sort of Who's Who in the Philosophy of Law today.
What We’re Reading This Week
1 hour ago