December 2009 Vol. 108 No. 3 THE REVIEW
ARTICLES

Negligence and Insufficient Activity: The Missing Paradigm in Torts

David Gilo & Ehud Guttel

Conventional wisdom in tort law maintains that the prevention of undesirable risks mandates restriction of harmful conduct. Against this widely held conviction, this Article shows that undesirable risks often stem from insufficient, rather than excessive, activity. Because negligence requires investments in only cost-justified care, parties might deliberately limit their activity so that the size of the ensuing risk would be lower than the cost of welfare-enhancing precautions. Parties’ incentives to strategically restrict their activity levels have striking implications for the inducement of efficient harm prevention. The overlooked paradigm of insufficient activity calls for the imposition of a new form of tort liability, justifies the application of controversial regulatory rules recently challenged before the Supreme Court, and supports overturning the standard guidelines concerning the choice between negligence and strict liability.

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Shareholder Compensation as Dividend

James J. Park
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Essay: Law's Expressive Value in Combating Cyber Gender Harassment

Danielle Keats Citron
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NOTES

Evaluating Punishment in Purgatory: The Need to Separate Pretrial Detainees' Conditions-of-Confinement Claims from Inadequate Eighth Amendment Analysis

David C. Gorlin

The Due Process Clause prohibits all “punishment” of pretrial detainees—individuals that are held by the Government, but not adjudged guilty of any crime. The Eighth Amendment only prohibits the infliction of “cruel and unusual punishments” upon convicted individuals. Despite the Supreme Court’s insistence that the Due Process Clause, and not the Eighth Amendment, protects pretrial detainees from deplorable and harmful conditions of confinement, most federal circuits now assess pretrial detainees’ claims under Eighth Amendment standards. Under the Eighth Amendment framework, pretrial detainees must establish that conditions subjected them to a substantial risk of serious harm, and that jailers were aware of the harm and deliberately indifferent to their needs. The Eighth Amendment approach puts pretrial detainees on equivalent footing with convicted prisoners: detainees are only entitled to the same objective treatment as convicted prisoners, and they must overcome the same burdensome hurdle to state a claim—establishing the subjective deliberate indifference of jail officials.

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Commentary: "Once Victim, Always Victim": Compensated Individuals Under the Amended Sentencing Guidelines on Fraud

Jacqueline Harrington
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& Other Current Events

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Come Back to the Boat, Justice Breyer!

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Crawford v. Washington: The Next Ten Years

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The Crawford Debacle

First a toast-to my colleague Jeff Fisher and his Crawford compatriot, Richard Friedman, on the...

Confrontation and the Re-Privatization of Domestic Violence

When the Supreme Court transformed the right of confrontation in Crawford v. Washington, the prosecution...
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