Since ancient times, legal scholars have explored the vexing question of when and what a contracting party must disclose to her counterparty, even in the absence of explicit misleading statements. This fascination has culminated in a set of claims regarding which factors drive courts to impose disclosure duties on informed parties. Most of these claims are based on analysis of a small number of non-randomly selected cases and have not been tested systematically. This article represents the first attempt to systematically test a number of these claims using data coded from 466 case decisions spanning over a wide array of jurisdictions and covering over 200 years. The results are mixed. In some cases it appears that conventional wisdom is correct. For example, our data support the claim that courts are more likely to require disclosure of latent, as opposed to patent, defects. In addition, courts are more likely to require full disclosure between parties in a fiduciary or confidential relationship. On the other hand, our results cast doubt on much of the conventional wisdom regarding the law of fraudulent silence. Indeed, our results challenge ten of the most prominent theories that have been asserted to explain when courts will require disclosure. We find that courts are no more likely to impose disclosure duties when the information is casually acquired as opposed to deliberately acquired and that unequal access to information by the contracting parties is not a significant factor that drives courts to require disclosure. We do find, however, that when these two factors are present simultaneously courts are significantly more likely to force disclosure. Perhaps most interestingly, although it is generally understood that courts have become more likely to impose disclosure duties over time, we find that courts actually have become less likely to require disclosure over time.
{"title":"Common Law Disclosure Duties and the Sin of Omission: Testing the Meta-theories","authors":"K. Krawiec, K. Zeiler","doi":"10.2139/SSRN.614501","DOIUrl":"https://doi.org/10.2139/SSRN.614501","url":null,"abstract":"Since ancient times, legal scholars have explored the vexing question of when and what a contracting party must disclose to her counterparty, even in the absence of explicit misleading statements. This fascination has culminated in a set of claims regarding which factors drive courts to impose disclosure duties on informed parties. Most of these claims are based on analysis of a small number of non-randomly selected cases and have not been tested systematically. This article represents the first attempt to systematically test a number of these claims using data coded from 466 case decisions spanning over a wide array of jurisdictions and covering over 200 years. The results are mixed. In some cases it appears that conventional wisdom is correct. For example, our data support the claim that courts are more likely to require disclosure of latent, as opposed to patent, defects. In addition, courts are more likely to require full disclosure between parties in a fiduciary or confidential relationship. On the other hand, our results cast doubt on much of the conventional wisdom regarding the law of fraudulent silence. Indeed, our results challenge ten of the most prominent theories that have been asserted to explain when courts will require disclosure. We find that courts are no more likely to impose disclosure duties when the information is casually acquired as opposed to deliberately acquired and that unequal access to information by the contracting parties is not a significant factor that drives courts to require disclosure. We do find, however, that when these two factors are present simultaneously courts are significantly more likely to force disclosure. Perhaps most interestingly, although it is generally understood that courts have become more likely to impose disclosure duties over time, we find that courts actually have become less likely to require disclosure over time.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"91 1","pages":"1705"},"PeriodicalIF":2.6,"publicationDate":"2004-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67775770","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I. THE METHODS OF JURISPRUDENCE........................................ 1910 II. THE LIMITED DOMAIN HYPOTHESIS ...................................... 1914 III. UNRAVELING THE RULE OF RECOGNITION........................... 1918 IV. THE LIMITED DOMAIN AND THE CORE OF AMERICAN LEGAL THEORY ........................................................................ 1922 V. LIMITED DOMAINS AND THE DIFFERENTIATION OF LAW .... 1928 VI. TESTING THE LIMITED DOMAIN HYPOTHESIS—THE NATURE OF JURISPRUDENTIAL INQUIRY REVISITED ........... 1933 VII. WHITHER POSITIVISM? ............................................................ 1942 CONCLUSION—UNDERSTANDING THE DIFFERENTIATION OF LAW............................................................................................ 1955
{"title":"The Limited Domain of the Law","authors":"F. Schauer","doi":"10.2307/1515650","DOIUrl":"https://doi.org/10.2307/1515650","url":null,"abstract":"I. THE METHODS OF JURISPRUDENCE........................................ 1910 II. THE LIMITED DOMAIN HYPOTHESIS ...................................... 1914 III. UNRAVELING THE RULE OF RECOGNITION........................... 1918 IV. THE LIMITED DOMAIN AND THE CORE OF AMERICAN LEGAL THEORY ........................................................................ 1922 V. LIMITED DOMAINS AND THE DIFFERENTIATION OF LAW .... 1928 VI. TESTING THE LIMITED DOMAIN HYPOTHESIS—THE NATURE OF JURISPRUDENTIAL INQUIRY REVISITED ........... 1933 VII. WHITHER POSITIVISM? ............................................................ 1942 CONCLUSION—UNDERSTANDING THE DIFFERENTIATION OF LAW............................................................................................ 1955","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1909"},"PeriodicalIF":2.6,"publicationDate":"2004-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1515650","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68980800","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
INTRODUCTION................................................................................. 1986 I. COLLECTIVE ACTION PROBLEMS AND RATIONAL CHOICE THEORY....................................................................................... 1988 II. BEHAVIORAL ECONOMICS AND NORMS .................................. 1990 III. ESTEEM, GOSSIP, AND FALSE GOSSIP ...................................... 1994 A. The Negative Externality of False Gossip ......................... 1995 B. Punishment of False Negative Gossip ............................... 2001 IV. THE LAW OF DEFAMATION AND ITS CONSTITUTIONALIZATION ........................................................ 2004 A. Defamation at Common Law............................................. 2005 B. The Constitutional Law of Defamation............................. 2008 V. THE CONSTITUTIONAL LAW OF DEFAMATION AND NORMS . 2013 A. The Problem of Under-Produced Political Speech .......... 2013 B. The Actual Malice Rule and Normative Behavior ........... 2019 VI. THE COMMON LAW VERSUS SULLIVAN FROM A LAW AND ECONOMICS PERSPECTIVE......................................................... 2022 A. The Economics of Strict Liability ...................................... 2022 B. Strict Liability and Defamation.......................................... 2027 C. Was the Common Law of Defamation Efficient? ............ 2032 CONCLUSION..................................................................................... 2038
{"title":"A Law and Norms Critique of the Constitutional Law of Defamation","authors":"M. Passaportis","doi":"10.2307/1515652","DOIUrl":"https://doi.org/10.2307/1515652","url":null,"abstract":"INTRODUCTION................................................................................. 1986 I. COLLECTIVE ACTION PROBLEMS AND RATIONAL CHOICE THEORY....................................................................................... 1988 II. BEHAVIORAL ECONOMICS AND NORMS .................................. 1990 III. ESTEEM, GOSSIP, AND FALSE GOSSIP ...................................... 1994 A. The Negative Externality of False Gossip ......................... 1995 B. Punishment of False Negative Gossip ............................... 2001 IV. THE LAW OF DEFAMATION AND ITS CONSTITUTIONALIZATION ........................................................ 2004 A. Defamation at Common Law............................................. 2005 B. The Constitutional Law of Defamation............................. 2008 V. THE CONSTITUTIONAL LAW OF DEFAMATION AND NORMS . 2013 A. The Problem of Under-Produced Political Speech .......... 2013 B. The Actual Malice Rule and Normative Behavior ........... 2019 VI. THE COMMON LAW VERSUS SULLIVAN FROM A LAW AND ECONOMICS PERSPECTIVE......................................................... 2022 A. The Economics of Strict Liability ...................................... 2022 B. Strict Liability and Defamation.......................................... 2027 C. Was the Common Law of Defamation Efficient? ............ 2032 CONCLUSION..................................................................................... 2038","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1985"},"PeriodicalIF":2.6,"publicationDate":"2004-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1515652","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68981591","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
SUPREME Court opinions like Brown v. Board of Education' reveal their consequences and yield their secrets only with the passage of time. The Supreme Court candidly recognized this reality seventeen years after it delivered Brown: "Nothing in our national experience prior to 1955 prepared anyone for dealing with changes and adjustments of the magnitude and complexity encountered since then."2 Fifty years have now elapsed since May 17, 1954, and the passage of time allows us to put perspective into a reexamination of the opinion that launched American society into the desegregation era and became the catalyst for astonishing changes in race relations not only in public education, but throughout American society. In 1954, the Supreme Court came to a fork in the road in its school segregation jurisprudence when Brown became the first case to force the Court to articulate the harm generated by segregation per se.3 Chief Justice Warren defined the primary harm of segregation to be the negative psychological impact on African-
{"title":"The Road Not Taken in Brown: Recognizing the Dual Harm of Segregation","authors":"Kevin D. Brown","doi":"10.2307/3202405","DOIUrl":"https://doi.org/10.2307/3202405","url":null,"abstract":"SUPREME Court opinions like Brown v. Board of Education' reveal their consequences and yield their secrets only with the passage of time. The Supreme Court candidly recognized this reality seventeen years after it delivered Brown: \"Nothing in our national experience prior to 1955 prepared anyone for dealing with changes and adjustments of the magnitude and complexity encountered since then.\"2 Fifty years have now elapsed since May 17, 1954, and the passage of time allows us to put perspective into a reexamination of the opinion that launched American society into the desegregation era and became the catalyst for astonishing changes in race relations not only in public education, but throughout American society. In 1954, the Supreme Court came to a fork in the road in its school segregation jurisprudence when Brown became the first case to force the Court to articulate the harm generated by segregation per se.3 Chief Justice Warren defined the primary harm of segregation to be the negative psychological impact on African-","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1579"},"PeriodicalIF":2.6,"publicationDate":"2004-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202405","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038628","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
HE future is hard to predict and thus hard to control. A striking example of this principle in the context of Brown v. Board of Education involves one of the central participants in that case, Justice Stanley Reed. According to some accounts, a few years after Brown was decided Justice Reed had some health troubles and was advised by his doctors that his long-term outlook was not good. In response to that advice, and possibly in order to spend what little time remained to him as pleasantly as possible, he resigned from the Supreme Court in 1957 after nineteen years of service. T
{"title":"Time, Change, and the Constitution","authors":"John Harrison","doi":"10.2307/3202406","DOIUrl":"https://doi.org/10.2307/3202406","url":null,"abstract":"HE future is hard to predict and thus hard to control. A striking example of this principle in the context of Brown v. Board of Education involves one of the central participants in that case, Justice Stanley Reed. According to some accounts, a few years after Brown was decided Justice Reed had some health troubles and was advised by his doctors that his long-term outlook was not good. In response to that advice, and possibly in order to spend what little time remained to him as pleasantly as possible, he resigned from the Supreme Court in 1957 after nineteen years of service. T","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1601"},"PeriodicalIF":2.6,"publicationDate":"2004-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202406","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038652","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"\"Brown\" at 50","authors":"M. Klarman","doi":"10.2307/3202407","DOIUrl":"https://doi.org/10.2307/3202407","url":null,"abstract":"","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1613"},"PeriodicalIF":2.6,"publicationDate":"2004-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202407","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Both Victors and Victims: Prince Edward County, Virginia, the NAACP, and \"Brown\"","authors":"K. Turner","doi":"10.2307/3202410","DOIUrl":"https://doi.org/10.2307/3202410","url":null,"abstract":"","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1667"},"PeriodicalIF":2.6,"publicationDate":"2004-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202410","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038778","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
ANY who are familiar with Brown v. Board of Education and the Southern response to the decision are at least vaguely aware that Southern states and school districts relied on school choice as one tool in their strategy of massive resistance. Brown’s relationship to school choice, however, is more complicated, more long-lasting, and more important than this limited and familiar connection. In this Essay, I will describe that relationship in more detail and explain why it is not only of historic interest, but of contemporary concern as well. It is a story rich in irony and unintended consequences, and one with no clear resolution. In short, it is the perfect Southern tale, though its lessons and scope extend well beyond the South. M
{"title":"\"Brown,\" School Choice, and the Suburban Veto","authors":"J. Ryan","doi":"10.2307/3202408","DOIUrl":"https://doi.org/10.2307/3202408","url":null,"abstract":"ANY who are familiar with Brown v. Board of Education and the Southern response to the decision are at least vaguely aware that Southern states and school districts relied on school choice as one tool in their strategy of massive resistance. Brown’s relationship to school choice, however, is more complicated, more long-lasting, and more important than this limited and familiar connection. In this Essay, I will describe that relationship in more detail and explain why it is not only of historic interest, but of contemporary concern as well. It is a story rich in irony and unintended consequences, and one with no clear resolution. In short, it is the perfect Southern tale, though its lessons and scope extend well beyond the South. M","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1635"},"PeriodicalIF":2.6,"publicationDate":"2004-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202408","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038698","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
T HE litigation campaign against segregation that culminated in 1 Brown v. Board of Education' remains an important subject of study. Brown continues to be controversial because Americans remain uncertain about what its substantive commitments were, and, perhaps more important, how those commitments, as we now understand them, fit together with the other values and institutions that provide the structure of contemporary politics. This Essay will follow up on three aspects of the litigation campaign preceding Brown in an effort to show how Brown and its legacy illuminate enduring features of the organization of the U.S. political system. Part I of this Essay will begin with a discussion of the very idea of a litigation strategy. Brown came to exemplify the possibility that lawyers could structure and execute a litigation strategy designed to produce substantial changes in the law. Liberals, and then conservatives, were captivated by the idea of coordinated litigation campaigns, even though the NAACP's legal campaign against segregation, when examined in detail, does little to support the proposition that strategic litigation campaigns matter.2 Part I will continue with an examination of the ways in which later litigation campaigns were modeled on, in modified form, the one that ended (provisionally) with Brown. A litigation campaign can matter only if its outcome-the decisions it generates, the forces in civil society it mobilizes-matters. The second question this Essay will take up is whether Brown matters. Professor Gerald Rosenberg's critique of Supreme Court adjudication as a vehicle for social reform uses the aftermath of
以“布朗诉教育委员会案”(1 Brown v. Board of Education)为高潮的反对种族隔离的诉讼运动仍然是一个重要的研究课题。布朗法案继续引起争议，因为美国人仍然不确定它的实质性承诺是什么，也许更重要的是，这些承诺，正如我们现在所理解的，如何与提供当代政治结构的其他价值观和制度相结合。本文将对布朗案之前的诉讼运动的三个方面进行跟进，以展示布朗案及其遗产如何阐明美国政治体系组织的持久特征。本文的第一部分将从讨论诉讼策略开始。布朗的案例证明，律师可以组织和执行一种诉讼策略，从而对法律产生实质性的改变。自由主义者，然后是保守主义者，对协调诉讼运动的想法着迷，尽管NAACP反对种族隔离的法律运动，当仔细研究时，几乎没有支持战略诉讼运动重要的主张第一部分将继续考察后来的诉讼运动是如何以布朗案(暂时)结束的诉讼运动为模板，以修改后的形式进行的。一场诉讼运动只有在它的结果——它所产生的决定，它所动员的公民社会力量——起作用的时候才有意义。本文要讨论的第二个问题是布朗是否重要。杰拉尔德·罗森伯格教授对最高法院裁决作为社会改革工具的批评使用了
{"title":"Some Legacies of Brown v. Board of Education","authors":"M. Tushnet","doi":"10.2307/3202411","DOIUrl":"https://doi.org/10.2307/3202411","url":null,"abstract":"T HE litigation campaign against segregation that culminated in 1 Brown v. Board of Education' remains an important subject of study. Brown continues to be controversial because Americans remain uncertain about what its substantive commitments were, and, perhaps more important, how those commitments, as we now understand them, fit together with the other values and institutions that provide the structure of contemporary politics. This Essay will follow up on three aspects of the litigation campaign preceding Brown in an effort to show how Brown and its legacy illuminate enduring features of the organization of the U.S. political system. Part I of this Essay will begin with a discussion of the very idea of a litigation strategy. Brown came to exemplify the possibility that lawyers could structure and execute a litigation strategy designed to produce substantial changes in the law. Liberals, and then conservatives, were captivated by the idea of coordinated litigation campaigns, even though the NAACP's legal campaign against segregation, when examined in detail, does little to support the proposition that strategic litigation campaigns matter.2 Part I will continue with an examination of the ways in which later litigation campaigns were modeled on, in modified form, the one that ended (provisionally) with Brown. A litigation campaign can matter only if its outcome-the decisions it generates, the forces in civil society it mobilizes-matters. The second question this Essay will take up is whether Brown matters. Professor Gerald Rosenberg's critique of Supreme Court adjudication as a vehicle for social reform uses the aftermath of","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1693"},"PeriodicalIF":2.6,"publicationDate":"2004-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202411","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038799","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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