It’s not only essential facilities that need limiting principles
A post in another place about Areeda’s article on essential facilities – “an epithet in need of limiting principles” – reminded me that limiting principles are not only needed to decrease the risks of over-enforcement. Areeda’s legitimate concern about nuance being lost in the application of precedent applies also to precedents which limit liability. They are relevant to under-enforcement as well. From hard cases to bad law Areeda wrote: “As with most instances of judging by catch-phrase, the law evolves in three stages: (1) An extreme case arises to which a court responds. (2) The language of the response is then applied -often mechanically, sometimes cleverly- to expand the application. With too few judges experienced enough with the subject to […]