Installment #1 & #2

Pelman v McDonald’s
“The issue of determining the breadth of personal responsibility underlies much of the law: where should the line be drawn
between an individual’s own responsibility to take care of herself, and society’s responsibility to ensure that others shield her?
Laws are created in those situations where individuals are somehow unable to protect themselves and where society needs to
provide a buffer between the individual and some other entity – whether herself, another individual or a behemoth company
that spans the globe.”
“As long as a consumer exercises free choice with appropriate knowledge, liability for negligence will not attach to the
manufacturer. It is only when free choice becomes but a chimera that manufacturers should be held accountable.”
(Dispositionism)

Richard C Ausness, Georgia Law Review

“The legislative process is certainly not perfect, but it does provide a forum for all points of view to be heard. In addition,
legislators can commission studies and obtain neutral expert opinions on complex issues.” (System Justification Theory)
“The principle of personal autonomy demands that individuals be free to control their own lives. At the same time, under this
principle of personal autonomy, individuals should take responsibility for their actions and not try to shift the blame to others
when their bad judgment causes injury.” (Dispositionism/Inequality Dissonance)

Ashley B. Antler
The “built environment” is a critical consideration in assessing the obesity epidemic. The built environment consists of the
neighbourhoods, roads, buildings, food sources, and recreational facilities in which people live, work, are educated, eat, and
play. (Situationism)

In article about Harvard divestment, the university spokesman says:

“We are deeply disappointed that divestment advocates have chosen to resort to a disruptive building occupation as a means
to advance their view. Such tactics cross the line from persuasion to disrespectful and coercive interference with the activities
of others.” (System Justification Theory, Bias Blind Spot?)

Ben Adler, Grist.com

“As advocates of the dispossessed have known since at least the civil rights movement, sometimes the courts give a better
approximation of fairness than the paralyzed political process. That’s why they call it the justice system.”

Marshall v Rane
“We hold that there was no proof that plaintiff had a free and voluntary choice, because he did not have a free choice of
alternatives. He had, instead, only a choice of evils, both of which were wrongfully imposed upon him by the defendant. He
could remain a prisoner inside his own house or he could take the risk of reaching his barn before defendant’s hog attacked
him.” (Courts recognizing double bind, lack of Dispositionism)

Situationist Torts, Hanson & McCann

"Seismic jurisprudential shift notwithstanding, the courts that make and apply tort law often pretend to abide by a stable and
precedent based area of law, in which basic precedents or principles are said to limit the boundaries of its application. (Tort
Law as Dispositionist Character)

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Being clever animals, we humans have a forceful desire and uncanny capacity to concoct explanations for virtually any
phenomenon that strikes us - at times even dipping into the cauldron of the magical and supernatural when more terrestrial
options do not suffice. (Just World Theory, Attribution Error)

Once those stories are in place, "is" typically turns to "ought", and cases that require deviations from those principles are seen
as beyond the law's boundaries - as "other" or "not tort law"- and the whole arrangement is perceived as "the way things
should be." (System Justification Theory)

Situationism posits that legal theory should be based on the most realistic account available of the human animal - an
understanding of the large gaps between what moves us, on one hand, and how we make sense of our behavior, on the other.
(Situationalism)

Situationism is premised on the social scientific insight that the naive psychology - that is, the highly simplified, affirming, and
widely held model for understanding human thinking and behaviour - on which our laws and institutions are based is largely
wrong.

Four overlapping situational forces that seem to be particularly influential. Simplicity. Plausibility and Legitimacy. Affirmation.
Power.

Craig Haney -

Thus, the intellectual milieu of our nation’s formative legal era was characterized by a conception of behavior that focused
almost exclusively on individuals and deemphasized or ignored the influence of social context or conditions in shaping
thought and action. The rugged American individualist was embraced as our national character type. Not surprisingly, the law
that was formed during this period bore the imprint of this individualism. (Dispositionism)

Installment #3: First Half (pp. 1-69)

Vosburg v Putney:

Custom/ Social Norms:

Not a quote but important: Hankavy Hipothesis: When social norms breakdown and neighbors can no longer settle
disputes among themselves, the law steps in, albeit reluctantly, and in resolving the case also seeks to reinforce the norms.
Vosburg applies strict liability to incentivize people to settle out of court. It’s about admonishing the defendant for violating
the strict liability norm (customary outside the law) and for litigating what they should have settled. Evidence: Trial Court
stated to the jury: “It is a peculiar case, an unfortunate case, a case, I think I am at liberty to say that ought not to have come into court.”
Wisconsin Supreme Court: strange and extraordinary case.

‘‘Had the parties been upon the play-ground of the school, engaged in the usual boyish sports, the defendant being free from malice, wantonness or
negligence and intending no harm to plaintiff in what he did, we should hesitate to hold the act of the defendant unlawful..’’ (stereotypes,
situationsim)

Donald Black: Law is stronger where other social control is weaker (Hanson slides Class 12).

J. Henderson et all. The Torts Process: Intentional Infliction of Harmful and Offensive Bodily Contact - Battery

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Deciding to go to a lawyer is a major move, and a client typically will have already decided that he or she is right and that the other person is wrong. -
nothing else worth quoting as the article mainly explains procedures.

J. Hanson et al. Motivated Implicit Policy Cognition Part 1, work in progress (2015) - (pp 1-68)

‘‘People will come to believe what they want to believe …. To the extent that reason permits’’ - Ziva Kunda (situationism)

“Any lawyer or judge who is honest with himself knows that he often intuits a conclusion and then goes to work to see if the legal reasoning supports
it.”- Judge Robert Bork (bias blind spot)

‘‘People generally perceive actions as choices that reflect a combination of internal human forces- roughly a person’s attitudes or preferences, shaped by
the person’s conscious deliberation reasoning skills and information set, and activated by that person’s will’’ (dispositionist model)

‘When pulling the lever for one candidate or another, voters generally assume that they do so for a given set of conscious reasons that they could
articulate, were anyone to ask’’ (naive dispositionist model)

Timothy Wilson estimates that the brain can absorb about 11 million pieces of information a second of which it can process
about 40 consciously (simple arithmetic indicates that that is roughly equivalent to being fully conscious of less than 3 hours of
an 85 year life (mind science - illusion of explanations)

In short, science has shown that we are fooled by our own confabulations and that we should not believe everything we think. (Hanson, mind
science - illusion of explanations, situationism)

Korsakoff experiment: he studied long-term alcoholics who had lost short-term memory. Empty memory banks
notwithstanding, his patients would ‘spontaneously concoct tall tales to fill in the blanks without any apparent sense of the
fabrication’ pp 30 (experiment, mind science - illusion of explanations, situationism)

In short, we rationalize our irrationality (pp 35)

four types of explicit justifications that individuals commonly offer to explain their policy proclivities: (1) subjective
preferences or what is often called “personal taste”; (2) objective, reason-based arguments; (3) ideological commitments; and
(4) causal attributions.61 The mind sciences have demonstrated that none of those types of justifications are what they seem
and that each is commonly employed as a form of post-hoc rationalization (situationism, biases, mind-sciences)

What we “like” is often the product of manipulation and our subjective tastes are often not a stable causal force determining our choices.

Professor Jerry Kang analogizes ‘local news programs, dense with images of racial minorities committing violent crimes’ to a
Trojan Horse virus (racial bias, situationism)

An additional problem with the “subjective taste” explanation for policy proclivities is that most people seem to perceive their
policy attitudes as based on more than mere taste.145 People’s desire for, say, tort reform is rarely experienced as tantamount
to a preference for butter pecan ice cream. Policy positions are generally justified as the product of several compelling
reasons—a combination of principles, goals, and empirical claims. Those reasons are generally perceived by their expounders
as objective, in the sense that they should persuade other reasonable people. However, the mind sciences suggest that our
reasons and reasoning are no more casually determinative than are our tastes and basic preferences. (situationism)

Research at Lund University developed an experimental hypothesis that posits that people rarely have access to the factors
determining their choices i.e choice-blindness

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Jonathan Haidt: social intuitionist model = moral evaluations arise from immediate intuitions and emotions in a process
more akin to perception than reasoning. Moral intuitions are “the sudden appearance in consciousness of a moral judgment,
including an affective valence (good-bad, like-dislike), without any conscious awareness of having gone through steps of
searching, weighing evidence, or inferring a conclusion. (social intuitionist model)

“I don’t know, I can’t explain it, I just know it’s wrong.” This phenomenon Haidt calls “moral dumbfounding

Haidt: “[r]easoning, when we do it, is mostly to find justification for what we already believe.”

Timothy Wilson: we are ‘strangers to ourselves’.

Installment #3: Second Half (pp. 69-125)

J. Hanson et al. Motivated Implicit Policy Cognition Part 2, work in progress (2015) -

“Today a more situationist model has taken hold, in which people’s attributions are viewed not as objective, factual reports,
but as symptoms of situational forces, including both external influences and internal biases and motives.” Id. at 1. (On the
current state of attribution theory/Situationism)

“Any law dealing with what happens when things go wrong—that is, most laws—will reflect what attribution theory tells us
more generally about how people respond to negative outcomes.” Id. at 2. (Attribution Theory and its relation to law)

“Think of the mind as a skateboarder, and implicit “choice” between dispositional and situational attributional tendencies as a
choice between skating downhill or uphill. The downhill option is effortless, while the uphill alternative is a sweaty chore. Id.
at 10. (Situationism/Dispositionism)

“. . . key elements of attributional calculus occur, not consciously, rationally, and deliberately, but subconsciously, intuitively,
and automatically. Not dispositionally, but situationally.” Id. at 20. (Situationism/Dispositionism)
● The omitted portion of the quote replaced by the ellipsis, “Moreover those results illustrate the surprising extent to
which” (noting how various psychological experiments reveal the conclusion stated in the quote).

“What a victim might perceive as outrageous, an injurer might construe as merely unfortunate or even richly deserved. The
legal system adjudicates such attributional contests every day.” Id. at 25. (On differing attributions between injured and
injurer)

D. Miller, Disrespect and the Experience of Injustice, Annu. Rev. Psychol. 2001. 52: 527—53.
“. . . Rawls (1971) claimed that justice was ‘the first virtue of social institution’ . . . justice is also a central concern in people’s
lives.” Miller at 545. (On Justice) (not really a great one but the Dale Miller article was dry)

Installment #4

Courvoisier v Raymond
“Where a defendant in a civil action like the one before us attempts to justify on a ple of necessary self-defense, he must satisfy
the jury not only that he acted honestly in using force, but that his fears were reasonable under the circumstances; and also as
to the reasonableness of the means made use of.” (pg3) (dispositionism, situationism)

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Ploof v Putnam
“...if the ferryman surcharge the barge the owner shall have his remedy upon the surcharge against the ferryman, but that if
there be no surcharge, and the danger accrue only by the act of God, as by tempest, without fault of the ferryman, every one
ought to bear his loss, to safeguard the life of a man.” (pg2) (necessity)

“It is clear that an entry upon the land of another may be justified by necessity, and that the declaration before us discloses a
necessity for mooring the sloop.” (pg2) (necessity)

Economic Analysis of Law (Posner)

Chapter 1: The Nature of Economic Reasoning

“The task of economics, so defined, is to explore the implications of assuming that man is a rational maximizer of his ends in
life, his satisfactions -- what we shall call his “self-interest.”” (pg3) (Law and Economics, dispositionism)

“The concept of man as a rational maximizer of his self-interest implies that people respond to incentives -- that if a person’s
surroundings change in such a way that he could increase his satisfactions by altering his behavior, he will do so.” (pg4) (Law
and Economics, dispositionism, situationism)

“Cost to the economist is “opportunity cost” - the benefit forgone by employing a resource in a way that denies its use to
someone else.” (pg6) (Law and Economics, opportunity cost)

“A social cost diminishes the wealth of society; a private cost merely rearranges that wealth.” (pg7) (Law and Economics,
social cost)
“The most celebrated application of the concept of opportunity cost in the economic analysis of law is the Coase Theorem.
The theorem, slightly oversimplified… is that if transactions are costless, the initial assignment of a property right will not
affect the ultimate use of the property.” (pg8) (Law and Economics, Coase Theorem)

“The third basic principle of economics is that resources tend to gravitate toward their most valuable uses if voluntary
exchange- a market- is permitted.” (pg10) (Law and Economics, market, bargain)

“Kaldor-Hicks concept, or wealth maximization...The winners could compensate the losers, whether or not they actually do.”
(pg14) (Law and Economics, Kaldor Hicks, efficiency)

“The dependence of even the Pareto-superiority concept of efficiency on distribution of wealth--willingness to pay, and hence
value, being a function of that distribution--further limits efficiency as an ultimate criterion of the social good.” (pg14) (Law
and Economics, efficiency)

Economic Analysis of Law (Posner) Chapter 2: The economic Approach to Law

“The new law and economics began with Guido Calabresi’s first article on torts and Ronald Coase’s article on social cost.”
(pg21-22) (Law and economics, Calabresi, Coase, social cost)

“Coase suggested that the English law of nuisance had an implicit economic logic. Later writers have generalized this insight
and argued that many of the doctrines and institutions of the legal system are best understood and explained as efforts to
promote the efficient allocation of resources - a major theme of this book.” (pg22) (Law and Economics, Coase, efficency)

“The theory is that the common law is best (not perfectly) explained as a system for maximizing the wealth of society.” (pg23)
(Law and Economics, maximize wealth)

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“The ‘economic theory of law’ and the ‘efficiency theory of the common law’ should not be confused. The former tries to
explain as many legal phenomena as possible through the use of economics. The latter (which is included in the former)
hypothesizes a specific economic goal for a limited subset of legal rules, institutions, and so forth.” (pg25)(Law and
Economics, efficiency)

“The economic approach to law is criticized for ignoring “justice.”...Sometimes it means distributive justice, the proper degree
of economic equality...A second meaning of justice, perhaps the most common, is--efficiency.” (pg27)(Law and Economics,
justice, efficiency)

“Always, however, economics can provide value clarification by showing the society what it must give up to achieve a
noneconomic ideal of justice. The demand for justice is not independent of its price.” (pg27) (Law and economics, justice,
Posner)

An Introduction to Law and Economics (Polinsky, packet pg 32)

“...the term efficiency will refer to the relationship between the aggregate benefits of a situation and the aggregate costs of the
situation; the term equity will refer to the distribution of income among individuals. In other words, efficiency corresponds to
“the size of the pie,” while equity has to do with how it is sliced.” (pg6) (Law and Economics, efficiency, equity)

“It was implicitly assumed in this example that the residents could costlessly get together and negotiate with the factory. In
Coase’s language, this is referred to as the assumption of zero transaction costs.” (pg14)(Law and Economics, Coase,
transaction costs)

“We can now state the more complicated version of the Coase Theorem: if there are positive transaction costs, the efficient
outcome may not occur under every legal rule. In these circumstances, the preferred legal rule is the rule that minimizes the
effects of transaction costs. These effects include actually incurring transaction costs as well as the inefficient choices induced
by a desire to avoid transaction costs.” (pg15) (Law and Economics, transaction Costs, Coase)

Efficiency vs Distribution (packet pg 46)

“Pursuing redistributive goals is an exceptional use of private law that special circumstances may justify but that ought not be
the usual use of private law.” (packet pg 46) (Law and Economics, redistribution)

Vincent v Lake Erie

“The storm which made it unsafe was one which surpassed in violence any which might have reasonably been anticipated.”
(pg221) (contracting costs)

“The situation was one in which the ordinary rules regulating property rights were suspended by forces beyond human
control, and if, without the direct intervention of some act by the one sought to be held liable, the property of another was
injured, such injury must be attributed to the act of God, and not to the wrongful act of the person sought to be charged.”
(pg221-222) (situationism)

Game Theory Captures a Nobel (packet pg 55)

“Game theory may not be as intellectually elegant as the model of pure competition found in every introductory textbook.
Indeed, it is more a matrix for viewing the world than a full-blown theory. But Andrew Schotter believes the Nobel

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committee’s decision to honor three founders was prescient. ‘Game theory,’ he says, ‘is the wave of the future.”” (packet pg
56)(Game Theory)

Hanson, Hanson, and Hart - Game Theory and the Law

“In 1992 George Priest wrote:

[T]here are few articles within the last ten years and no articles of importance within the last five years written about
modern tort law that have not addressed...this new approach to the law... This trend is highly likely to continue for the
future…[T]here is no future lawyer, no future academic, no future judge that can believe that one can adequately understand
modern tort law without taking seriously the economic analysis of its effects.” (234)(Law and Economics)

“Legal economists Robert Cooter and Thomas Ulen have written that “[o]ne of the central assumptions in economic theory is
that decision makers are rationally self-interested,” meaning that they “have stable, well-ordered preferences, which
implies...that…[they] can calculate the costs and benefits of the alternatives available to them and that they choose to follow
the alternative that offers the greatest net benefit.”” (236)(Law and Economics)

“Under a ‘no-Hands’ rule (commonly referred to as a no liability rule), the plaintiff pays costs of all accidents, while under a
‘reverse no-Hands’ rule (strict liability), the defendant pays all accident costs. Under rule 3, a ‘one-Handed’ standard
(negligence), the defendant is liable whenever she fails to take efficient care, but otherwise the plaintiff is liable. Rule 4
represents a ‘reverse one-Handed’ standard (strict liability with a defense of contributory negligence), in which just the reverse
is true: The plaintiff is liable when he fails to take efficient care, but otherwise the defendant is liable. Under the ‘two-Handed’
standard of rule 2, the defendant is liable if and only if the plaintiff takes efficient care but the defendant does not. (That
standard, which was long the basic standard in tort law, and a version of which governed the case in Carroll Towing, is typically
referred to as ‘negligence with a defense of contributory negligence.’) The opposite is depicted in rule 5, in which the plaintiff
is liable if and only if the defendant takes care but the plaintiff does not. (This ‘reverse two-Handed’ rule has no common
name and, to our knowledge, has never been adopted by courts.)” (pg240) (strict liability, game theory, Hand rule)

“Guido Calabresi and Douglas Melamed (1972) observed in a classic article, ‘Property Rules, Liability Rules, and Inalienability:
One View of the Cathedral,’ that once the legal system has defined and assigned an entitlement - a legal right - it still must
decide what form of protection to provide the entitlement. When property rule protection is employed, the entitlement can
change hands only by contract - that is, only if its holder agrees to sell. Hence, the transfer of entitlements protected by
property rules depends on a holder’s subjective valuations. When the entitlement is protected by a liability rule, a non-holder
can take the entitlement as long as he or she is willing to pay ex post a state-determined price. The transfer of entitlements
under liability rules depends therefore on objectively determined values.” (pg 248) (liability, property rule, Game Theory,
Calabresi)

“The failure of courts or juries to apply the Hand Formula in most cases and, even if they do apply it, the measurement
difficulties and information deficiencies they face seem to pose a significant threat to the positivist hypothesis.” (252)(Hand
Formula, game theory)

“Much of law and economics scholarship has been strikingly un-self-critical. In light of the undeniably robust influence of
efficiency theory, we feel a special obligation to summarize a few of the more common criticisms.” (258) (criticisms, law and
economics)

“One criticism of the law and economics approach has gained so much traction that it has fundamentally altered the way a
third generation of legal economists now approach legal questions. Specifically, over the last decade, economists and legal
economists have increasingly drawn from a branch of psychology known by various names, including economic behavioralism.
Economic behavioralists have demonstrated the lack of realism of the rational actor model long at the core of law and

7
economics. Those scholars have identified a variety of systematic and predictable biases in people’s decision making (Hanson
and Kysar 1999).” (259) (law and economics, bias)

Landes, William M. Posner, Richard A, An Economic Theory of Intentional Torts.

“We shall argue, however, that the concept of intentional tort can be given a coherent economic meaning, and we shall show
that the common law treatment of torts can be explained on the hypothesis that the common law attempts to promote
efficiency” 140(Law and Economics)

[On Vosburg v. Putney]: “This result, and the principle it illustrates -- that the prima facie tort of battery does not require
intent to cause a ‘real’ injury -- seems correct from an economic standpoint. Because the kick was deliberate and unauthorized,
the probability of some harm, though perhaps only momentary discomfort, was very high, while defendant’s cost of avoidance
was negative since he expended resources” 142(Law and Economics)
“But a cost benefit inquiry is in any event nor required to decide the liability question. Even if defendant’s gain had
exceeded plaintiff’s loss, the economic argument for liability would still have been compelling because the injury
occured in a setting of low transaction costs” 142(Law and Economics)

“Consent transforms coercion [negative value outcome] into a mutually desired and therefore value-maximizing transaction: it
transforms the brawl into the boxing match”143 (Law and Economics)
“The analysis does not quite hold for the case where consent is inferred from conduct ad it later turns out the victim
did not intend to consent. An example is a case where plaintiff held out hi arm in a way that manifested consent to
being inoculated though in fact he did not want to be”143(Law and Economics)

“Now consider the defence of self-defence. The usual justification offered for the defence, when translated into economic
terms, is that a threat of legal sanctions cannot influence the conduct of someone who feels his life is in danger, and therefore
imposing sanctions in such a case would have no allocative effect [this argument is only compelling when battery is actually life
threatening] 143(Law and Economics)

“Curvoisier v Raymond illustrates an interesting group of cases in which the person defeinding himself is mistaken in believing
that he is under attack by the person whom he injures. Defendant was standing in his doorway and rioters were milling about
in a crowd before him. Plaintiff detached himself from the crowd and approached defendant with his hand in his pocket.
Thinking that plaintiff was one of the rioters and was about to attack him, defendant shot plaintiff, who was actually a
plainclothes policeman. Plaintiff sued for battery. The court held that he could not win if defendant was reasonable in
believing that plaintiff was a rioter about to attack him without justification” 144(Law and Economics)

“We now turn to the cases, illustrated by Vincent v. Lake Erie Transportation Co…, in which the defence to a suit for property
damage is that the damage was necessary to avert a great harm to the defendant’s property. In Vincent, defendant’s ship was
moored to plaintiff’s dock when a storm arose. Rather than put out to sea, defendant’s crew lashed the ship even more
securely to the dock and as a result the ship was saved but the dock was damaged. No contract provision obligated the plaintiff
to provide a berth for the defendant’s ship during the storm. Plaintiff was held entitled to recover for the damage to its dock,
although there is no suggestion that defendant acted improperly in securing the ship to the dock. In fact, an earlier case, Ploof v.
Putnam, suggests consistently with the excessive force cases discussed above, that the plaintiff in Vincent would have been
guilty of a tort if it had prevented defendant from securing the ship to the dock” 147(Law and Economics)
“In an important class of of cases where property is damaged or destroyed to save other property, negligence rather than strict
liability is the standard used. This class of cases goes by the name “public necessity” 148(Law and Economics)

Bird v. Holbrook, 130 Eng. Rep. 911 (C.P. 1825) (spring gun in garden for defence case)

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“The question for the opinion of the court was, whether plaintiff was entitled to recover: if so, the verdict was to stand;
otherwise, a nonsuit was to be entered” 41 (Law and Economics)
“The main ground of the defence, however, is, that the plaintiff cannot recover for an injury occasioned to him by his
own wrongful act” 41 (Law and Economics)

“There is no act which Christianity forbids, that the law will not reach: if it were otherwise, Christianity would not be, as it has
always been held to be, part of the law of England. I am, therefore, clearly of opinion that he who sets spring guns, without
giving notice, is guilty of an inhuman act, and that, if injurious consequences ensue, he is liable to yield redress to the sufferer”
42 (Law and Economics)

Hanson, Jon. Reyes, Ana on Bird v. Holbrook

“Bird v. Holbrook is a favorite among torts scholars. Landes and Posner claim that the case nicely confirms their positivist
project. In their taxonomy, Holbrook is an example of an “intentional” tort case in which intention is irrelevant - what the
might call an “unreal” intentional tort case.” (no actual page numbers in this one) 104 (Law and Economics) (Mind Sciences)
“Landes and Posner describe the holding as providing an ‘ingenious accomodation’ of ‘two
conflicting economic activities.’ And elsewhere the holding as ‘economically more sensible’ than the alternative
attempts to regulate spring guns” 104 (Law and Economics) (Mind Sciences)

“They arguably mischaracterize the holding. They claim that the case stands for the proposition that with notice, a property
owner would not be liable, but without notice the property owner would be liable. That, in their view, is the court’s “ingenious
accommodation.” As we’ll argue below, however, the court’s holding neither constitutes an ingenious accommodation nor
does it necessarily stand for the proposition that in cases of this sort of liability should or would turn solely on whether notice
existed. If anything, the opinions indicated that the judicial outcome would have been identical even if the landowner had
given notice” 107. (Law and Economics) (Mind Sciences)

“A more revealing problem, however, is that virtually any holding could be justified with the sort of efficiency analysis they
provide. Despite the illusion of a quantitative proof, nothing about Landes and Posner’s analysis leads us to think that their
efficiency analysis is any more convincing than the efficiency analyses that one could construct to justify alternative holdings.
First, the numbers in Landes and Posner’s table have no empirical basis -- despite their use of phrases like “this is wrong,”
“the correct approach,” and “the efficient solution,” and despite their claim that “the situation described in Bird v. Holbrook is
illustrated” by those numbers” 107 (Law and Economics) (Mind Sciences)

“In other words, while providing the trappings of a fairly rigorous economic analysis, Landes and Posner deliver little else”
107 (Law and Economics) (Mind Sciences)

“...far from providing a useful deterrence function, notice of a spring gun may instead simply attract more and more careful
thieves while injuring innocent intruders attempting to solve a problem on the land and who are not in the sort of mindset to
search for notices of life-threatening spring guns” 110 (Law and Economics)

“[in contrast] attribution theory provides a satisfactory account for this classic case’s outcome, the judicial rhetoric employed,
and the impact of the case on tort doctrine generally.” 112 (Law and Economics) (Mind Sciences)

“In Holbrook, however, the trespasser was attributionally blameless, making the case for holding the defendant liable that much
more clear-cut. While the court attributed locus, knowledge, control, intent, and bad motive [not just to deter but also to hurt]
to the defendant, it attributed very little or no knowledge and control to the plaintiff, who it perceived as very well intentioned.
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The plaintiff was characterized as a “youth,” and as a “boy” who “had no notice” of the spring gun.” 112 (Law and
Economics) (Mind Sciences

Tyler, Tom R. Psychological Perspectives on Legitimacy and Legitimation

“This review focuses on legitimacy -- the belief that authorities, institutions, and social arrangements are appropriate, proper,
and just” 375 (Mind Sciences)

“Power is the ability to shape the gains and losses of others either by threatening or using coercion to deter undesired behavior
or by promising rewards to promote desired behavior” 376 (Law and Economics) (Mind Sciences)

“A core aspect of social dynamics, therefore, is that power provides a means to shape behavior with the consequence that, as
an early social theorist noted, “the strong do what they will, the weak endure what they must” 376 (Mind Sciences)

“The classic argument of political and social theorists has been that for authorities to perform effectively, those in power must
convince everyone else that they ‘deserve’ to rule and make decisions that influence the quality of everyone’s lives. In other
words, ‘every authority system tries to cultivate a belief in its legitimacy” (Mind Sciences)

“Why is legitimacy important? As noted, seeking to govern a society or manage an organization based upon the possession of
power alone first requires enormous expenditures of resources to create a credible system of surveillance through which to
monitor public behavior to punish rule violators” 377(Mind Sciences)
“When the public views government as legitimate it has an alternative basis for
support during difficult times.” 377 (Mind Sciences)

“A legitimating ideology is a set of justifications or ‘legitimizing myths’,,, that lead a political or social system and its authorities
and institutions to be viewed as normatively or morally appropriate by the people within the system” 378 (Mind Sciences)

“The most concrete influence of legitimacy occurs when people make decisions or create rules designed to shape the behavior
of others [to make the others accept said decisions and rules]” 379 (Mind Sciences)

“A core finding of that literature is that authorities and institutions are viewed as more legitimate and, therefore, their decisions
and rules are more willingly accepted when they exercise their authority through procedures that people experience as being
fair” 379(Mind Sciences)

“Finally, it is important to recognize that procedural justice is not the only basis upon which authority can be legitimated. Law,
as an example, has also been legitimated by reference to its substance, as when legal authorities incorporate scientific and
technical experience into a ‘rationality’ that legitimates law” 384(Mind Sciences)

“In the United States, these [social] differences are found to be linked to ethnic group membership, with minority group
members being less well off in terms of both economic and social status. American legitimating myths justify these differences
through reference to stereotypes about the characteristics of members of groups. For example, minority group members are
argued to deserve subordinate economic status because they are “lazy” or “not intelligent,” and holding higher status is
associated with possessing more favorable traits, such as competence” 385 (Mind Sciences)

“The suggestion that people are motivated to justify the current social system is also a key hypothesis of system justification
theory” 388 (Mind Sciences)

“Overview” on 393 (143)

10
Installment #5: The Situation of Boats & Docks

Melvin Lerner & Dale Miller, Just World Research and the Attribution Process: Looking Back and Ahead, 85
PSYCHOL. BULL. 1030, 1030–31 (1978).
“The Just World hypothesis is easily stated: Individuals have a need to believe that they live in a world where people generally
get what they deserve. The belief that the world is just enables the individual to confront his physical and social environment
as though they were stable and orderly…Since the belief that the world is just serves an important adaptive function for the
individual, people are very reluctant to give up this belief, and they can be greatly troubled if they encounter evidence that
suggests that the world is not really just or orderly…”

“As a consequence of the perceived interdependence between their own fate and the fates of others in their environment,
individuals confronted with an injustice generally will be motivated to restore justice.” Id. at 1031.

“[T]he successful punishment of the inflictor may end one’s concern with the incident, even though the victim is still in need.
The degree of injustice experienced by the victim frequently defines that magnitude of our reaction...but we often seem to
forget the victim.” Id. at 1040.

“[O]bservers will frequently devalue or derogate the personal character or attributes of someone who has suffered
innocently...There are a number of delimiting conditions to this generalization, however. First, if the victim can be viewed as
behaviorally causing his suffering, there appears to be no need to derogate the victim, presumably because no injustice has
occurred...A second delimiting condition...is that observers will often choose to find fault with the victims’ actions rather than
derogate their character if the victims are highly attractive or enjoy high status. A related, third limitation...appears to operate
when the observer expects to be in a situation similar to that of the victim...A fourth condition...is the situation in which the
rules or procedures give the victim the same chance of escaping the undesirable fate as others…” Id. at 1041–1042.

Gary Blasi & John Jost, System Justification Theory and Research, 94 CAL. L. REV. 1119, 1119 (2006).
Definition: “[T]he motive to defend and justify the social status quo, even among those who are seemingly most disadvantaged
by it…”

“[S]ystem justification motives sometimes result in behaviors that current legal thinking would not otherwise anticipate. For
example, victims of discrimination or abuse complain less often than individual and collective self-interest would predict, and
employees conceal evidence of corporate wrongdoing even when rational self-interest would counsel otherwise. SJT also has
implications for lawyers and other advocates. It recommends, for example, that lawyers attend to all potentially relevant social
orderings in selecting jurors and developing advocacy strategies. The theory also speaks to the persuasive power of ‘framing,’
and motives of those whom they would persuade. Finally, SJT identifies important obstacles to social change in general, as well
as to change in law and legal scholarship.” Id.

“[I]n addition to victim-blaming stereotypes, positive or ‘complementary’ stereotypes serve system-justifying ends.”
Installment at 32.

“[P]eople who possess heightened needs to manage uncertainty and threat are especially likely to embrace conservative,
system-justifying ideologies…[U]ncertainty avoidance, intolerance of ambiguity, needs for order, structure, and closure,
perception of a dangerous world, and fear of death are positively associated with the endorsement of conservative, system-
justifying ideologies. Cognitive complexity and openness to new experiences are negatively associated with the endorsement of
these ideologies.” Id. at 34.

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“[P]eople respond to threats to the social system by using stereotypes to justify inequality between groups, and by defending
the status quo more vigorously.” Id.

Kay et al., Inequality, Discrimination, and the Power of the Status Quo: Direct Evidence for a Motivation to See the
Way Things Are as the Way They Should Be, 97 J. PERSONALITY & SOC. PSYCHOL. 421, 422–23 (2009).
“The system justification motive is thought to result, in large part, from attempts to psychologically protect the self from
beliefs that something that has considerable control over one’s welfare and outcomes is illegitimate and unfair. Thus, to the
extent that people feel increasingly dependent on a given system (i.e., the more it is presumed to influence the social and
economic outcomes of people’s life), the more they should be motivated to defend and justify it.”

“Leaving or changing a social system...is usually not considered a feasible option...When people acknowledge that the
outcomes in their lives are dependent on a system’s rules and they believe little can be done to change this, the choice is often
to rationalize or justify such arrangements.” Id. at 423.

“Just as self-threat manipulations increase the proclivity to engage in self-defensive processes... threatening the system
increases the penchant to engage in processes of system justification.” Id.

Joan Vogel, Cases in Context: Lake Champlain Wars, Gentrification, and Ploof v. Putnam, 45 ST. LOUIS U. L. J.
797, 798 (2001).
“The Ploofs were a poor, landless family who...earned their living transporting firewood and other goods on the
lake...Putnam’s caretaker untied the Ploofs’ boat because he...was aware of their reputation as thieves, not simply because the
Ploofs were using the dock without the owner’s permission.”

“During the 1920s, the Ploofs were the subject of a famous Vermont Eugenics survey that was designed to illustrate the social
costs of allowing ‘degenerate families’ to reproduce...The case is a story about gentrification of local communities that often
resulted in driving out or marginalizing local people whose lifestyles were often at odds with their new and wealthier
neighbors...Local people may be even more despised if they happened to be both poor and of French Canadian ancestry.” Id.
at 799.

“The Ploofs were regarded as a threat to all owners of summer homes on Lake Champlain.” Id. at 801.

“[T]hese stereotypes were used to justify keeping Vermonters of French Canadian ancestry...in the...lowest social strata of
Vermont and New England society.” Id. at 804.

“Understanding the social realities of gentrification and ethnic prejudice make the Ploof case more explicable...What is
interesting is that Putnam never argued that the Ploofs endangered his property. Perhaps the defendant’s lawyers believed their
other arguments about Putnam’s lack of responsibility for the caretaker’s actions were sufficient.” Id. at 815.

New River Media Interview (Excerpted) with: Alan Kraut Professor of History, American University,
http://www.pbs.org/fmc/interviews/kraut.htm.
“[I]n terms of just raw numbers of poor, unskilled labor, the late 19th century, of course, took precedence. And what that
means was that there were enormous social problems that came with newcomers; first, the need to find jobs, then the need to
find housing, then the need to, of course, earn enough income to raise their families and to create some sort of sense of
opportunity…” Installment at 67–68.

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“On the one hand, the United States desperately needed the labor of these newcomers. On the other hand…[t]hey were of
different religious persuasions. They were poorer. They looked different...And so, there was a fear of the stranger.” Id. at 69.

“Many Americans felt that they needed protection from these immigrants...In terms of their bodies, the inspection procedure
at Ellis Island, the medical inspection, was one way that Americans attempted to express, through their government agencies,
the desire to admit only immigrants that would benefit the United States...” Id.

“Opposition to immigration was really of two kinds. There were Americans who feared that the newcomers would take their
jobs or drive down the wage scale...But there was another genre of immigration opponent that...was concerned about the racial
composition of these newcomers…[T]here was an increasing attention to eugenics…” Id. at 70.

John Milton Cooper Interview, http://www.pbs.org/fmc/interviews/cooper.htm.

“Part of the reason for [mass internal migration] is the shut-off of immigration [due to] World War I. That meant that
[demand for work,] particularly [the] demand for factory work, [rose dramatically.] [And] an awful lot of this is filled by
African-Americans who have already [begun] migrating north….They are looking for cheap labor[;] they are looking for non-
unionized labor…” Installment at 81.

Matthew Frye Jacobson Interview, http://www.pbs.org/fmc/interviews/jacobson.htm.

“[Boas] starts to say…‘maybe those two development are completely detached...and...evolutionists are misreading their own
data...to create hierarchy where [there is not]...’ [H]e starts to look at the changes...that immigrant groups undergo once they’re
in the United States. And this is the most radical kind of protest against some of the hereditarian presumptions…” Installment
at 86.

“It has never been the case that democracy in this country is wide open...In fact, from the beginning, democracy and racism
have been [inextricably linked, and] the notion of democracy was based on racial presumptions, about fitness for self-
government for that very narrow circle in the late eighteenth century...and that circle has been expanding…” Id. at 94.

Lee D. Baker Interview, http://www.pbs.org/fmc/interviews/baker.htm.

“What Franz Boas advocated was looking at cultures relative to each other, [as] opposed to organizing them in a hierarchical
fashion…[T]his linkage of Franz Boas with modern-day notions of cultural relativism is somewhat erroneous.” Installment at
97.

Eugenic Sterilization Laws, Paul Lombardo, University of Virginia,

http://eugenicsarchive.org/html/eugenics/essay8text.html.
“Colony Superintendent Dr. Albert Priddy testified that Emma Buck had ‘a record of immorality, prostitution, untruthfulness,
and syphilis.’ His opinion of the Buck family more generally was: ‘These people belong to the shiftless, ignorant, and worthless
class of anti-social whites of the South.’” Installment at 101.

Buck v. Bell, 274 U.S. 200, 207 (1927).

“It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their
imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains
compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”

13
Kimberlé Crenshaw, Foreword: Toward a Race-Conscious Pedagogy in Legal Education, 11 NAT’L BLACK L. J. 1,
2 (1198–90).
“Dominant beliefs in the objectivity of legal discourse serve to suppress the conflict by discounting the relevance of any
particular perspective in legal analysis and by positing an analytical stance that has no specific cultural, political, or class
characteristics.”

“The appearance of perspectivelessness is simply the illusion by which the dominant perspective is made to appear neutral,
ordinary, and beyond question...As long as other perspectives are obscured by the illusion of objectivity, the fact that courts
are making choices that privilege the perspectives and interests of some groups over others will go unrecognized.” Id. at 6.

“This effort to ground antidiscrimination protection in the identification of a particular discriminating actor might appear to
be rational and noncontroversial in the absence of a competing view. Yet, when we contrast this view...with what we call the
‘domination approach,’ another equally plausible view is revealed...This domination model values the perspectives of the
victims…” Id. at 11.

“Thus, the doctrinal framing of an issue can determine which perspectives are central and which are irrelevant in legal
analysis.” Id. at 11–12.

Installment 6

“... Americans… have long suffered from ‘great confusions.’ On the one hand, we champion the ideals of equality and
freedom. Our equality, we declare, is self-evident, as are our inalienable rights to life, liberty, and the pursuit of appiness. In
pledging allegiance to our flag, we routinely affirm the goals of liberty and justice for all, and many of us would risk our lives to
defend those ideals. We Americans do not tolerate injustice--not on our watch.”
- Jon Hanson, “The Blame Frame: Justifying (Racial) Injustice in America”
- P. 4 of Installment

“Because humans crave justice, salient suffering or inequalities activate an ‘injustice dissonance’ within us.”
- Jon Hanson, “The Blame Frame: Justifying (Racial) Injustice in America”
- P. 6 of Installment

“We tend to be ‘mental prisoners of the frame provided by us by the … situation.”

- Massimo Piatelli-Palmarini
- Quoted by Jon Hanson, “The Blame Frame: Justifying (Racial) Injustice in America”
- P. 7 of Installment

“The sight on an innocent person suffering … motivated people to devalue the attractiveness of the victim in order to bring
about a more appropriate fit between her fate and her character.”
- Melvin Lerner
- Quoted by Jon Hanson, “The Blame Frame: Justifying (Racial) Injustice in America”
- P. 8 of Installment

“Locating evil within selected individuals or groups carries with it the ‘social virtue’ of taking society ‘off the hook’ as
blameworthy; societal structures and political decision-making are exonerated from bearing any burden of the more
fundamental circumstances that create racism, sexism, elitism, poverty, and marginal existence for some citizens.”
- Philip Zimbardo
- Melvin Lerner

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 - Quoted by Jon Hanson, “The Blame Frame: Justifying (Racial) Injustice in America”
- P. 18 of Installment

“Under a free government, at least, the free citizen’s first and greatest right which underlies all others--the right to the
inviolability of his person; in other words, the right to himself--is the subject of universal acquiescence…”
- Pratt v. Davis
- Quoted in Mohr v. Williams

Installment 7

“The manufacturer’s obligation to the consumer must keep pace with the changing relationship between them; it cannot be
escaped because the marketing of a product has become so complicated as to require one or more intermediaries.”
- Judge Traynor concurrence in Escola v. Coca Cola

“If public policy demands that a manufacturer of goods be responsible for their quality regardless of negligence there is no
reason not to fix that responsibility openly.”
- Judge Traynor concurrence in Escola v. Coca Cola

“An injured person … is not ordinarily in a position to refute [the manufacturer’s evidence of reasonable care] or identify the
cause of the defect, for he can hardly be familiar with the manufacturing process as the manufacturer himself is.”
- Judge Traynor concurrence in Escola v. Coca Cola

“If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, then it is a
thing of danger [and subject to a tort duty].”
- Justice Cardozo in MacPherson v. Buick

“In so holding, Justice Cardozo made it clear that the MacPherson decision forever ‘put aside the notion that the duty to
safeguard life and limb… grows out of contract and nothing else.’ Concluding, he then announced that: “We have put the
source of the obligation where it ought to be. We have put its source in the law.”
- Mark Geistfeld in The HIstorical Development of Tort Law
- Quoting Justice Cardozo in MacPherson v. Buick

Installment 8

Rylands v. Fletcher [p 1]

…[I]f the Defendants, not stopping at the natural use of their close, had desired to use it for any purpose which I may term a
non-natural use, …, and if the consequence of their doing so, or in consequence of any imperfection in the mode of their
doing so, the water came to escape and to pass off into the close of the Plaintiff, then … the Defendants were doing they were
doing at their own peril and, if in the course of their doing it, the evil arose [and injured] Plaintiff, then for the consequence of
that, …, the Defendants would be liable…

15
If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbour, he
does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever
precautions he may have taken to prevent the damage.

[W]hen one person, in managing his own affairs, causes, however innocently, damage to another, it is obviously only just that
he should be the party to suffer.

The damage in the former case[, which was held for D,] may be treated as having arisen from the act of God; in the latter,
[which was held for P,] from the act of the Defendant.

#Strict liability
#Force of nature vs. human conduct

Spano v. Perini Corp.; Davis v. Perini Corp [p 3]

[O]ne who engages in blasting must assume responsibility, and be liable without fault, for any injury he causes to neighboring
property.

The defendants had the right to dig the canal. The plaintiff the right to the undisturbed possession of his property. If these
rights conflict, the former must yield to the latter, as the more important of the two, since ,upon grounds of public policy, it is
better than one man should surrender a particular use of his land, than that another should be deprived of the beneficial use of
his property altogether, which might be the consequence if the privilege of the former should be wholly unrestricted.

{CONTRAST WITH} [To] exclude the defendant from blasting to adapt its lot to the contemplated uses, at the instance of
the plaintiff, would not be a compromise between conflicting rights, but an extinguishment of the right of the one for the
benefit of the other. This sacrifice, we think, the law does not exact. Public policy is promoted by the building up of towns and
cities and the improvement of property. Any unnecessary restraint on freedom of action of a property owner hinders this.

{HANSON-ESQUE RESPONSE} The plaintiff [in Booth, the case above] was not seeking … to “exclude the defendant from
blasting” and thus prevent desirable improvements to the latter’s property. Rather, he was merely seeking compensation for
the damage which was inflicted upon his own property as a result of that blasting. The question … was not whether it was
lawful or proper to engage in blasting but who should bear the cost of any resulting damage - the person who engaged in the
dangerous activity or the innocent neighbor injured thereby.

Since blasting involves a substantial risk of harm no matter the degree of care exercised, we perceive no reason for ever
permitting a person who engages in such an activity to impose this risk upon nearby persons or property without assuming
responsibility therefor.

#Strict liability
#Public policy

The Transformation of American Law [p 8]

The subversion of the expanding public law principle of just compensation by the increasingly ruthless application of the
private law negligence principle must be seen as a phenomenon of industrialization.

[T]he American attitude toward legal liability was based on the assumption that the “quiet citizen must keep out of the way of
the exuberantly active one.” Indeed, the law of negligence became a leading means by which the dynamic and growing forces

16
in American society were able to challenge and eventually overwhelm the weak and relatively powerless segments of the
American economy.

[T]he conception of property gradually changed from the eighteenth century view that dominion over land above all conferred
the power to prevent others from interfering with one’s quiet enjoyment of property to the nineteenth century assumption
that the essential attribute of property ownership was the power to develop one’s property regardless of the injurious
consequences to others.

#History of negligence & strict liability

#Public policy

One of the most striking aspects of legal change during the antebellum period is the extent to which common law doctrines
were transformed to create immunities from legal liability and thereby to provide substantial subsidies for those who
undertook schemes of economic development.

Change brought about through technical legal doctrine can more easily disguise underlying political choices. Subsidy through
the tax system, by contrast, inevitably involves greater dangers of political conflict.

[It seems] fairly clear that the tendency of subsidy through legal change during this period was dramatically to throw the
burden of economic development on the weakest and least active elements in the population. By contrast, it seems plausible to
suppose that in a period when the property tax provided the major share of potential state revenue, the burdens of subsidy
through taxation would have fallen disproportionately on the wealthier segments of the population.

It does seem likely … that regardless of the actual distributional effects of resorting to the existing tax system, a more general
fear of the redistributional potential of taxation played an important role in determining the view that encouragement of
economic growth should occur not through the tax system, but through the legal system.

#Subsidization
#Tax
#Distribution

An Introduction to Law and Economics - Third Application - Automobile Accidents [p 11]

{Pretty technical (game-theoretic), hard to pull quotes, recommend that you skim if you don’t buy the conclusions below.
FWIW I think this article is BS.}

{Considering only driver i.e. injurer:}

Efficient legal rules for dealing with driver-pedestrian accidents [can] be derived by imagining what rules a driver and a
pedestrian would have chosen if they could have costlessly gotten together before the accident.

For the rule of strict liability to be efficient, the court generally must be able to obtain correct information about the victim’s
damages.

For the rule of negligence to be efficient, it is necessary for the court to have enough information to determine the efficient
outcome so that the standard of care can be chosen to correspond to it.

17
[A] general principle in the economic analysis of accident law: In accident situations in which the only issue is how to induce
the injurer to take appropriate care, both strict liability and negligence are efficient, provided that liability equals actual damages
if strict liability is used and that the standard of care corresponds to the efficient outcome if negligence is used.

==================================================================

{Considering both driver and pedestrian:}

However, the rule of strict liability will not be efficient with respect to the pedestrian’s behavior. …. The problem of
controlling the victim’s behavior under the rule of strict liability can be solved by adding a defense of contributory negligence.

[T]he rule of negligence will lead both parties to take an efficient amount of care.

[I]f it is not feasible to include either party’s activity level in the standard of care, the preferred liability rule depends on
whether it is more important to control the injurer’s or the victim’s activity level. If the injurer’s activity level is of greater
concern, then strict liability with a defense of contributory negligence should be used. If the victim’s activity level is more
important, then negligence is preferable.

#Law and economics

#Game theory
#Activity level and care level

Indiana Harbor Belt Railroad v. American Cyanamid [p 25]

{Moran for district court}

The doctrine can be best understood by thinking of a situation where injury occurs and neither party is at fault. Ordinarily, in
those circumstances the cost of the injury will remain with the injured party. But for certain activities with an inherent element
of risk, the law imposes the burden of the loss on the person who undertook the dangerous activity and stands to profit from
it. As Judge Augustus Hand commented…, it is fairer to place the burden of the loss on the person who created the inordinate
risk than on someone who has no relation to the activity other than an injury from it.

The law imposes strict liability on him simply as a cost of engaging in that kind of [abnormally dangerous] business.

The Restatement (Second) test for an abnormally dangerous activity involves a consideration of six factors: ... [p 28]

[P]erhaps the single most important factor in determining whether … an activity is abnormally dangerous is what the
Restatement calls the “inappropriateness” of bringing the danger to the particular place where the damage occurred.

Witt, Toward a New History [p 46]

Classical liberalism, as articulated by J.S. Mill and other theorists, was based on the idea that individuals could act as they chose
so long as they did not interfere with the similar rights of others. … Tort law, as viewed through liberalism, marked the
boundaries between private individuals and between individuals and the state, protecting people from encroachment on both
fronts. … [L]iberal principles were unable to adequately protect the sometimes competing rights of freedom to act in line with
individual autonomy and of freedom from harm by others.

Rosenberg, The Judicial Posner on Negligence versus Strict Liability [p 48]

18
Tort liability is a mode of regulation that should be used only when the market fails to achieve the social objectives involved -
here, primarily deterrence - and when judicial intervention promises superior results.

[C]ontracts could have specified negligence, strict liability, or some amalgam as the governing rule. The parties could also have
managed risk far better than regulators, let alone courts, could hope to by prescribing sophisticated means of controlling and
monitoring risks and assuring financial responsibility through requirements for insurance.

Chemical Spill Raises Questions of Liability [p 51]

“It’s a very dangerous precedent,” said Barry Massey, manager of hazardous materials for E.I. du Pont de Nemours & Co.,
Wilmington, Del. “Up to now, carriers have usually been help responsible for hazardous materials even when the shipper has
leased the (rail) cars,” he said.

“By declaring the rail shipment of acrylonitril to be ‘abnormally dangerous,’ the district court improperly substituted its own
determination of public policy for that of the legislative branch and far exceeded the proper role of a federal court in
interpreting the law,” the brief concluded.

Our “Equally Great Confusions” [p 53]

The problem, then, was one of “choice.” Because “the colored race” could choose otherwise, the problem of stigma was theirs
to deal with.

[O]ur generation has invented a way to justify existing inequalities across groups. Racial inequalities today are only rarely said
to manifest God’s will or nature’s design; individuals who advance such views are often seen as motivated by ignorance,
malignance, or both. INstead, racial inequalities are attributed mostly to the victim’s preferences, tastes, personality, and other
factors that influence her resultant choices. Yet, as always, disparities in power and wealth are actually generated through the
mostly unseen situation. What has changed, then, is the dispositional story that explains and excuses the results of those
primarily situational forces.

The choice schema has become dominant in today’s society. Choice, then, is the new race. And “choicism” is the new racism.

The choice frame is so powerful in part because to question the legitimacy of choice would shake the bedrock on which most
of our dominant social, economic, legal, and religious institutions are built.

Far from being unfair or unjust, unequal outcomes are the product of the very feature that makes America great: free choice.

To make such a claim falsely or even to suggest it carelessly - that is, to play the “race card” - is itself an egregious injustice that
typically eclipses the purported injustice that prompted the claim.

African Americans in post-New Deal America were disproportionately and systematically denied access to opportunities for
wealth accumulation that policymakers distributed to already privileged groups.

Jackson, The Crabgrass Frontier (About inequality in housing)

“[T]he broad patterns of downtown decline, inner-city deterioration, and exurban development are typical of the large
population centers of the United States...Public housing projects were intended to redress the imbalance. Unfortunately, it did
not work out that way.” (Situationism)

19
Capers, Policing, Race, and Place
“The way we structure our laws may also lead to racial segregation. There are various laws, like loitering and speeding, that give
police discretion towards whom to enforce laws against.” “With regards to racial segregation, police thus don’t even need
‘responsible suspicion’ to ‘stop’ a minority. They can claim that she violated a law, which everyone does, when she is being
stopped for being ‘out of place.’” (Situationism)

Kazol, Savage Inequalities

“The schools in East St. Louis and South Chicago are failing their communities, as well as propagating racial and class
boundaries that most Americans refuse to acknowledge continue to exist.” (Bias Blind Spot)

Riverdale Environment

“Repeated, egregious environmental violations...inclines us to see intentionality. This is exacerbated by the criminal conviction
of a...executive since ‘conspiring’ and ‘concealing’ require intention or purpose in criminal law” (Dispositionism)

20