Reflections on Why We Fight

Let’s fight about why we fight!

Or, better yet, let’s continue the intriguing discussion begun by Professor Fallone about the nature of our political divisions. There are some interesting observations in the readings he suggests (I’ve seen only the Lakoff book), but they also raise some interesting (at least to me) observations and questions.

I have not read Gary Will’s book, but I have, like many of the readers of this blog, thought and wrote about issues of federalism and the proper role of the state.  I agree with the idea that there is a “myth” about these matters, if he means to use the term in its true meaning as an explanatory narrative, rather than in its popular corruption as “false.”

That narrative reflects a rather serious body of thought that is not limited to the political right or to any particular view of the founding. The idea that the “local and voluntary” (the term “amatuer” is pejorative and trivializes the debate) can be preferable to the “centralized and mandatory” is an important aspect of Catholic social teaching (expressed in the notion of subsidiarity) and of the Calvinist notion of sphere sovereignty. Toqueville, an outsider, saw American associationalism as a valuable antidote to the potential for democracy to consume itself.

Of course, none of these perspectives argue that a central government has no role to play and part of the difficulty with using historically successful arguments for central government is that they do not imply that expanded government is always good. The need for expanded government to, for example, start a central bank or facilitate interstate commerce, means that calls for additional expansion of central government  are actually or even presumptively meritorious.

This suggests two observations about our current political divide. 

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Anzivino on the Disappointed Expectations Test

Ralph Anzivino has a new paper on SSRN entitled “The Disappointed Expectations Test and the Economic Loss Doctrine.”  This makes a trilogy of recent articles by Ralph on different aspects of the economic loss doctrine.  (The first two are here and here.)  The abstract for this most recent entry is as follows:

The economic loss doctrine is a judicially created rule that determines whether contract or tort law applies when a defective product causes damage. The doctrine’s starting premise is that contract law governs if the defective product causes economic loss and tort law governs when the defective product causes property damage. A common refrain is that the doctrine was created to prevent contract law from drowning in a sea of tort. However, as the rule has developed, courts have continued to expand contract coverage at the expense of tort coverage. First, when the defective product damages only itself, the courts concluded that such property damage should be resolved under contract law, not tort law. Next, when the defective product damages the system of which it was a component part, the courts concluded that such property damage should also be resolved under contract law, not tort law. Recently, another rule has begun to receive judicial acceptance that further expands the coverage of contract law at the expense of tort law. The rule is called the “disappointed expectations” test or the “reasonably foreseeable” rule. It provides that property damage that was reasonably foreseeable at the time of contracting is recoverable only under contract law, not tort law. The purpose of this Article is to examine the disappointed expectations rule and determine whether it is a positive addition to the legal landscape of the economic loss doctrine.

After surveying the development of the disappointed expectations test, which has been adopted by the Wisconsin Supreme Court, Ralph identifies several reasons why the test should be rejected.  He pointedly concludes, “The rule is the most recent progression of tort law drowning in a sea of contract law.”

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Seventh Circuit Criminal Case of the Week: What If the Defendant Thought He Was Breaking the Wrong Law?

seventh-circuit2When Doli Pulungan attempted to export 100 military-grade riflescopes to Indonesia in 2007, he knew he was breaking the law.  He was just wrong about which law.  His clients told him there was a ban on military exports to Indonesia, but the ban actually expired in 2005.  Instead, Pulungan violated a different law that requires a license in order to export “defense articles.”  Thus, his elaborate ruse of shipping through Saudi Arabia in order to evade the nonexistent Indonesia embargo did him no good.  A jury ultimately convicted him of “willfully” attempting to violate the export license law, and a judge sentenced him to four years’ imprisonment.

But was his violation truly “willful”?  On appeal, the government conceded that “willfully” means “with knowledge that a license is required,” but argued that the evidence established Pulungan had this knowledge.  The government relied chiefly on Pulungan’s dishonesty with business associates about what he intended to do with the riflescopes and his intent to violate the nonexistent embargo.  But Pulungan’s dishonesty is readily explained by his belief that he was violating the wrong law.  Thus, as the Seventh Circuit saw it in United States v. Pulungan (No. 08-3000), the government was really invoking the doctrine of transferred intent: “As the prosecutor sees things, an intent to violate one law is as good as the intent to violate any other.”  The court, per Chief Judge Easterbrook, was unmoved by this use of the transferred intent doctrine and overturned Pulungan’s conviction. 

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