HLS Scholarly Articleshttps://nrs.harvard.edu/1/82024-03-19T10:10:09Z2024-03-19T10:10:09ZLowering the Bar to Raise the Bar: Licensing Difficulty and Attorney Quality in JapanRamseyer, J. MarkRasmusen, Eric Bennetthttps://nrs.harvard.edu/1/373777842024-02-23T19:27:03Z2013-01-01T05:00:00ZLowering the Bar to Raise the Bar: Licensing Difficulty and Attorney Quality in Japan
Ramseyer, J. Mark; Rasmusen, Eric Bennett
Under certain circumstance, a relaxation in occupational licensing standards can increase the quality of those who enter the industry. The effect turns on the opportunity costs of preparing for the licensing examination: making the test easier can increase the quality of those passing if it lowers the opportunity costs enough to increase the number of those willing to go to the trouble of taking the test. We explore the theoretical circumstances under which this can occur and the actual effect of the relaxation of the difficulty of the bar exam in Japan from 1992 to 2011.
2013-01-01T05:00:00ZSherman v. Department of Public Safety: Institutional Responsibility for Sexual AssaultGoldberg, JohnZipursky, Benjamin C.https://nrs.harvard.edu/1/373775472023-12-20T16:56:54Z2023-11-06T05:00:00ZSherman v. Department of Public Safety: Institutional Responsibility for Sexual Assault
Goldberg, John; Zipursky, Benjamin C.
This article addresses the intersection of three important topics: sexual assault, police misconduct, and employer liability for employee torts. As to the last of these, while there have long been debates among jurists in the U.S. concerning the proper scope of respondeat superior liability, courts have mostly adhered to an approach that focuses on whether the employee acted for the purpose of serving the employer’s interests. The narrowness of this purpose-based test, as compared to available alternatives, makes it imperative for lawyers, judges, and scholars to be attentive to other, less well-known, bases for employer liability. In Sherman v Department of Public Safety, the Delaware Supreme Court applied a particular version of one such doctrine – the “aided-by-agency” doctrine – to hold a police department accountable for its officer’s sexual assault of an arrestee. By articulating this doctrine in a thoughtful and circumscribed manner, the Court affirmed its reputation as a leader in the development of agency law, while also providing a helpful framework that can be applied to hold certain employers liable when employees take advantage of their employment-based authority over their victims to perpetrate assaults.
2023-11-06T05:00:00ZTrying and SucceedingGoldberg, JohnZipursky, Benjamin C.https://nrs.harvard.edu/1/373775462023-12-20T16:49:44Z2024-08-08T04:00:00ZTrying and Succeeding
Goldberg, John; Zipursky, Benjamin C.
In “Duties to Try and Duties to Succeed,” Stephen Smith distinguishes two types of duties one might find in areas of private law such as contracts and torts: (1) duties to succeed (such as a duty not to trespass on another’s land), and (2) duties to try (such as a duty to try not to injure another through careless conduct). Smith argues that these types of duty differ not only in their structure, but in the standards of conduct they support (strict liability versus fault), the nature of the wrongdoing involved when those standards are breached (setbacks to rights or interests versus displays of disrespect), and the kind of liability they generate (damages that involve the duty-bearer doing the next best thing to heeding her duty to succeed versus damages that restore formal equality given the disrespect that is displayed by the breach of a duty to try). Finally, he concludes that, because Anglo-American private law grew haphazardly out of the writ system, it contains both types of duties yet lacks a coherent account of which duties apply or should apply to which conduct and which injuries.
Building on Smith’s highly illuminating treatment while also pushing back against his somewhat skeptical conclusion, our contribution to this volume will argue that there is a way for private law to combine aspects of duties to try and duties to succeed into what we call “qualified duties of noninjury.” In developing this claim, we re-examine Brown v. Kendall, 60 Mass. 292 (1850), a crucial decision that helped mark U.S. private law’s move away from the writ system by recognizing and defining the modern tort of negligence. Close attention to Chief Justice Shaw’s reasoning in Brown, we argue, will show that, at the center of negligence law, and indeed all of tort law, are qualified duties of noninjury, i.e., duties that have both a conduct element and an injury element.
2024-08-08T04:00:00ZThe Anti-Democratic Major Questions DoctrineFreeman, JodyStephenson, Matthew C.https://nrs.harvard.edu/1/373775452023-12-20T16:45:11Z2023-06-01T04:00:00ZThe Anti-Democratic Major Questions Doctrine
Freeman, Jody; Stephenson, Matthew C.
West Virginia v. Environmental Protection Agency is the Supreme Court’s most important administrative law decision in decades. The opinion’s significance is due principally to the Court’s embrace of an aggressive version of the so-called “major questions doctrine” (MQD), which appears to require unusually explicit statutory authorization before agencies may undertake “major” regulatory actions. The West Virginia Court claims that this strong MQD is based on longstanding precedent, and that its use has salutary effects on the policymaking process. Neither claim is accurate. In Part I of this Article, we show that the strong version of the MQD embraced by the West Virginia Court is in fact relatively new; the extent of the doctrinal innovation is obscured by the fact that the MQD label has been unhelpfully attached to several related but distinct interpretive techniques, which we disentangle. In Part II, we turn to the impact of this new MQD on the policymaking process, focusing in particular on democratic accountability. While the MQD’s proponents claim that this doctrine protects separation-of-powers principles and the prerogatives of Congress, in fact the new MQD is more likely to weaken democratic accountability by shifting power from the elected branches to the courts, undermining transparency, and exacerbating the already excessive tendency toward minoritarian obstruction in Congress. The West Virginia Court’s aggressive MQD would likely have other effects; perhaps most importantly, this version of the MQD makes it much more difficult for the federal government to address new problems under broadly worded statutes. Both the MQD’s supporters and its detractors anticipate that the doctrine will result in less, and less aggressive, federal regulation. For purposes of this Article, though, our critique of the MQD focuses less on its impact on policy outcomes (though we think this is very important), and more on the impact of the MQD on the policymaking process, especially the extent to which the MQD makes that process less democratic.
2023-06-01T04:00:00Z