The New Private Law - Harvard symposium

Theory isn't my thing.  I am a commentator and historian.  But somebody has to make sense of the big picture - including asking if there is a big picture.  Benjamin Zipursky and John Goldberg have led the way here in a kind of new formalism.  Torts is what it appears to be - a system of redress by the injured who seek relief from wrongdoers.  It is not a system of wealth maximization, redistribution, social control, or environmental regulation.  Except of course that it is often used to serve those purposes.  So HERE is the Harvard symposium on the New Private Law.

Harvard Law Review's 2011-2012 Symposium presents "The New Private Law," a development in private law theory that seeks to revitalize the study of private law. The Symposium features an Introduction by Professor John Goldberg, who argues for "inclusive pragmatism" as an approach to private law. Symposium Articles by Professors Shyamkrishna Balganesh, Henry Smith, Stephen Smith, and Benjamin Zipursky respectively address the implications of The New Private Law to copyright, property, remedies, and tort law. In addition, the Harvard Law Review Forum features online-only responses to The New Private Law written by Professors Eric Claeys, Abraham Drassinower, Richard Epstein, Keith Hylton, Thomas Merrill, John Oberdiek, and Emily Sherwin.

Introduction: Pragmatism and Private Law
John C.P. Goldberg

The Obligatory Structure of Copyright Law: Unbundling the Wrong of Copying
Shyamkrishna Balganesh

Property as the Law of Things
Henry E. Smith

Duties, Liabilities, and Damages
Stephen A. Smith

Palsgraf, Punitive Damages, and Preemption
Benjamin C. Zipursky

Harvard Law Review Forum Responses:

Responding to Shyamkrishna Balganesh, The Obligatory Structure of Copyright Law: Unbundling the Wrong of Copying

Copyright Is Not About Copying
Abraham Drassinower

Unifying Copyright: An Instrumentalist's Response to Shyamkrishna Balganesh
Richard A. Epstein 

Responding to Henry E. Smith, Property as the Law of Things

Exclusion and Private Law Theory: A Comment on Property as the Law of Things Eric R. Claeys

Property as Modularity
Thomas W. Merrill 

Responding to Stephen A. Smith, Duties, Liabilities, and Damages

Comments on Stephen Smith's Duties, Liabilities, and Damages
Emily Sherwin

Responding to Benjamin C. Zipursky, Palsgraf, Punitive Damages, and Preemption

New Private Law Theory and Tort Law: A Comment
Keith N. Hylton 

Method and Morality in the New Private Law of Torts
John Oberdiek 

The Fire Next Term - NYTimes.com

Linda Greenhouse fears that next term the Supreme Court will deal the last blow to racial integration educational measures. - GWC
The Fire Next Term - NYTimes.com:
by Linda Greenhouse

The focus of the current term is, of course, federal authority: immigration as well as health care. We don’t really know yet where the chief justice, now completing his seventh term, or Justice Samuel A. Alito Jr., his frequent ally, stand on questions of Congressional power. But we do know where they, along with Justices Antonin Scalia, Clarence Thomas, and Anthony M. Kennedy, stand on the subject that is likely to be the focus of the next Supreme Court term. That subject is race.
Race is the project of the Roberts court – more than enhancing corporate welfare, more than lowering the barrier between church and state, more than redefining the boundary between state and federal authority.
What do I mean by project? As a young lawyer in the Reagan administration, John Roberts opposed robust enforcement of federal civil rights laws. His opposition to broadening the reach of the Voting Rights Act, as disclosed in the Reagan Library papers released as part of his 2005 Supreme Court confirmation process,briefly became an issue at his Senate Judiciary Committee hearing. But the senators, evidently persuaded that as chief justice he would just be an umpire calling balls and strikes, moved on.
I don’t generally believe in tagging middle-aged people with the deeds of their youth, but there has been remarkable consistency between young lawyer Roberts and Chief Justice Roberts.

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China to Amass Marine Pollution Compensation Fund = Xinhua

China to Amass Marine Pollution Compensation Fund:

China's Ministry of Finance (MOF) said Monday that the country will start amassing a compensation fund to be used in cases of marine oil pollution from July this year.
According to a regulation jointly issued by the MOF and the Ministry of Transport (MOT), receivers or agencies of mineral oil -- such as crude oil or heavy diesel -- entering China's waters should pay 0.3 yuan (about 0.05 U.S. dollars) per tonne they are carrying on each entry.
The fund's establishment is aimed at protecting the country's oceanic environment and promoting the sustainable and healthy development of marine transport industry, according to the MOF.
Compensation from the fund shall not exceed 30 million yuan for each oil pollution incident, it said.
A committee will be established by the MOF, MOT, Ministry of Agriculture and several other departments as well as representatives from fund-payers to oversee the management of the money.
The move came after oil spills in the Penglai 19-3 oilfield in Bohai Bay have polluted over 6,200 square km of water since June 2011, an area about nine times the size of Singapore, and caused huge losses in the tourism and aquatic farming industries of Liaoning and Hebei provinces.
U.S. energy giant ConocoPhillips China, operator of the oilfield, paid 1.09 billion yuan in compensation for the oil spills while China National Offshore Oil Corp. and the Chinese unit of ConocoPhillips paid 480 million yuan and 113 million yuan, respectively, for environmental protection efforts in the Bohai Sea


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Ahead of Ruling on Cancer, Worry of Strain on 9/11 Victims’ Fund - NYTimes.com

Ahead of Ruling on Cancer, Worry of Strain on 9/11 Victims’ Fund - NYTimes.com:
by Anemona Hartocollis

An advisory committee in March found justification for covering 14 broad categories of cancer, raising expectations that the fund would cover at least some of them. But such a decision would create a logistical quagmire, advocates for patients and government officials conceded, and could strain the fund’s resources.“Depending on the numbers of cancers and the criteria for those cancers, we would certainly be getting more and different claims than we were receiving previously,” said Sheila Birnbaum, the special master overseeing the Sept. 11 Victim Compensation Fund. “We cannot add any more money to the fund, so we would have to prorate what we’re giving to people depending on the amount of people that apply, the seriousness of their injuries, the economic loss that they’ve sustained.”The [NIOSH] advisory committee found some evidence linking Sept. 11 to increased rates of cancer, but existing studies are far from conclusive. And since there is probably no way to distinguish those who developed cancer from ground zero from those who might have developed it anyway, anyone who can prove sustained exposure could potentially be eligible for payment.

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58th Aniversary of Brown v. Board of Education

Brown v. Brown - Equal Protection at a Crossroads - Balkinization 5/17/2012

by David Gans, Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center

Today marks the 58th anniversary of the Supreme Court’s landmark decision in Brown v. Board of Education, the unanimous ruling that struck down racial segregation and restored the Fourteenth Amendment’s promise of equality. While Brown is still widely celebrated as the “crown jewel of the U.S. Reports,” the sad truth is that, on the Supreme Court these days, Brown is hardly recognizable as the landmark ruling that ended Jim Crow and struck down state-sponsored discrimination treating African Americans as inferiors. In the hands of Chief Justice Roberts and other conservatives, Brown stands as a barrier against race-conscious efforts to promote equality and foster the effective participation by all persons in the civic life of nation that was at the core of Brown. In conservative hands, Brown freezes in place, not ends, continuing racial inequality.

One of John Roberts’ first landmark opinions as Chief Justice announced this new understanding of Brown and of the Equal Protection Clause. In 2007 decision in Parents Involved v. Seattle School District, Chief Justice John Roberts, speaking for four Justices, opined that Brown’s command is “to stop discriminating on the basis of race.” In a bitter dissent, Justice Stephen Breyer, also speaking for four Justices, accused the Chief Justice of undermining “Brown’s promise of integrated primary and secondary education” and turning its back on the Constitution’s guarantee of “true racial equality – not as a matter of fine words on paper, but as a matter of everyday life in the Nation’s cities and schools.” Justice Anthony Kennedy provided the fifth vote to strike down local efforts to prevent racial isolation in schools, but rejected the Chief Justice’s rule of absolute colorblindness and agreed with the dissent that governments have the authority to act “to reach Brown’s objective of equal educational opportunity.” 

This fight over Brown is sure to continue next Term, when the Justices consider Fisher v. University of Texas at Austin, a constitutional challenge to the race-conscious admission process at Texas’ flagship public university....

China depends on foreign expertise for deep water drilling: China Daily

China Daily reports:
Deepwater drilling to be conducted with help from overseas companies
Cooperating with overseas companies on domestic offshore blocks comes naturally to China National Offshore Oil Corp, the country's biggest marine oil producer, ever since it was established in 1981.
Even though last year's oil spill in northern China's Bohai Bay drew nationwide criticism over the country's lax oversight on foreign oil companies' activities in offshore China, industrial experts reiterated that the cooperation will continue, in particular as the country taps into more challenging deepwater areas.
This year CNOOC announced a string of foreign cooperation projects in China's offshore areas, with the latest coming from its product-sharing contract with Austrian company Roc Oil Co this month.
The two companies inked the deal to jointly explore Bohai Bay's 09/05 block located 50 kilometers southeast of Tianjin. The move came a month after CNOOC's announcement that it would join hands with Italy's biggest energy conglomerate, Eni SpA, to explore the 30/27 deepwater block in the South China Sea.
Eni will conduct the three-dimension seismic survey and drill an exploration well in the 5,130 square kilometer block, which was offered for foreign cooperation last year.
Also in the South China Sea, BP Plc obtained approval from the Ministry of Commerce in February to farm the 43/11 deepwater gas block, holding a 40.8 percent working interest in the project during the exploration phase. Anadarko Petroleum Corp and CNOOC will hold 50 percent and 9.18 percent respectively.

Presumed damages in defamation upheld by NJ Supreme Court

Presumed-Damages Doctrine Upheld in Defamation Cases

from the NJ Law Journal

The New Jersey Supreme Court on Wednesday affirmed the doctrine allowing plaintiffs to pursue defamation claims without having to prove actual harm to their reputations, though recovery will be nominal.
"We hold that presumed damages continue to play a role in our defamation jurisprudence in private plaintiff cases that do not involve matters of public concern," the unanimous court wrote per curiam in W.J.A. v. D.A., A-77-10.
"In today's world, one's good name can to easily be harmed through publication of false and defamatory statements on the Internet," the court said, adding that requiring proof of actual harm could "force an average citizen to ferret out proof of loss of reputation from any of the world-wide potential viewers of the defamatory Internet transmission."
The case at bar goes back to 1998 when D.A. (called "Dave Adams" in the opinion) sued his uncle, W.J.A. (called "Wayne Anderson") for allegedly sexually assaulting him years earlier.
Anderson counterclaimed for defamation based on statements Adams made to Ventnor police. Adams' claim was thrown out as time-barred but Anderson won a $50,000 jury verdict on the defamation claim and $41,323 as a frivolous litigation sanction.

New York Schools Among Most Segregated

The Explore Charter School in Brooklyn is 92% Black

Why Don't We Have Any White Kids? - NY Times

by N.R. Kleinfeld

In the broad resegregation of the nation’s schools that has transpired over recent decades, New York’s public-school system looms as one of the most segregated. While the city’s public-school population looks diverse — 40.3 percent Hispanic, 32 percent black, 14.9 percent white and 13.7 percent Asian — many of its schools are nothing of the sort.

About 650 of the nearly 1,700 schools in the system have populations that are 70 percent a single race, a New York Times analysis of schools data for the 2009-10 school year found; more than half the city’s schools are at least 90 percent black and Hispanic.