I've been enjoyiong the exchange too.  But Richard, I think the judge that

decided Behrens was Devlin J, not Denning.

On another point, today the Supreme Court of Canada allowed the

application for

leave to appeal in Fullowka -- yet another chance to wrestle with duty of care

in negligence.

vb

Quoting "Wright, Richard" <Rwright@kentlaw.edu>:

> I had the same thoughts as John while reading Steve's posts, which

> are surprisingly heated and ungenerous in his parsings of Jason's

> posts.

>

> I assume Steve is a utilitarian-efficiency proponent, as Denning

> seems to have been (on the utilitarian side) from the little I have

> read of his opinions and writings and as Posner obviously is (on the

> efficiency side).

>

> I agree with Steve, as I believe Jason does, that scholars as well as

> judges must recognize and state the law as it is.  Jason's point, I

> believe, is that a scholar has much more freedom than a judge to

> criticize and argue when necessary for reform of the law when it is

> inconsistent with one believes the proper foundation of law should be.

>

> While there certainly have been and remain utilitarian influences on

> private law, I believe it is clear that in both the common law and

> the civil law it is interactive justice rather than utilitarian

> efficiency that provides the basic structure and almost all of the

> content of private law (and also criminal law).  This is certainly

> true of tort law, which is the area on which I have focused.  See

> http://works.bepress.com/richard_wright/.  Utilitarian efficiency

> views were most prominent, but for only a relatively short period, in

> the area of product liability, and even there were mouthed (in terms

> of efficient compensation and efficient risk reduction) much more

> than they were actually implemented.  See

> http://works.bepress.com/richard_wright/31/.

>

> As I have demonstrated in my articles, efficiency theorists in

> particular are extremely cavalier regarding precedent, blithely

> ignoring or misstating well-established doctrine and precedents.  

> Posner is the worst in this regard.  See, e.g.,

> http://works.bepress.com/richard_wright/2/ and

> http://works.bepress.com/richard_wright/13/.

>

> I have not read the Denning opinions that Jason finds most

> objectionable.  The ones I have read indicate Denning's willingness

> to import utilitarian views into the law (e.g., his opinions on

> private nuisance) while still recognizing the limits of clear

> precedent (e.g., his Behrens opinion on strict liability for wild

> animals).

>

> ________________________________

>

> From: John Murphy [mailto:john.murphy@manchester.ac.uk]

> Sent: Thu 11/27/2008 2:44 AM

> To: Jason Neyers

> Cc: obligations@uwo.ca

> Subject: Re: Denning

>

>

>

> Dear All,

>

> How would Steve's suggestd exercise work if it were applied, not to

> CJ, but to economic analysis of law and, more particularly, the

> judgments of Richard Posner?  I presume RP will have taken the USA

> equivalent of  the oath that Jason mentions.  Furthermore, the econ

> analysis approach, so far as I understand it (which isn't very far),

> would come up against Jason's immanence retort.

>

> I ask not to see Jason and Steve come to yet further cyberspace blows

> - even though I'm enjoying their exchange - just out idle curiosity.

>

> John M

>

>

>

>

>

>