Tort

Punitive damages are one of the most controversial aspects of tort litigation and have been the subject of various theoretical, empirical, and experimental studies. One criticism of punitive damages refers to the effect that they have on civil litigation processes. In particular, Polinsky (1997) argues that the uncertainty and unpredictability that punitive damage claims inject into a case may increase both the rate and amount of settlements, thus implying that punitive damages carry systemic consequences for the general processing of tort claims. This paper represents the first, empirical examination of this implication. With one of the largest and most comprehensive data sets of tort litigation (over 25,000 cases filed from 1994 through 1997 in several counties in Georgia), we analyze both cases that are likely to have caps on punitive damage awards and cases that are likely to be uncapped. We examine the effect of the decision to seek punitive damages on several major decision po...

The essay analyses the new regulation of non-pecuniary damages submitted by the law proposal no. 1151/2019. Once explored the reasons why to intervene in the field of torts and liability for breach of contract, the author addresses the problem of non-pecuniary damages from a systematic perspective and suggests some de iure condendo solutions.

Medical negligence during COVID-19 affected people who were already grieving the lives of their loved ones. This article will relook at specific instances where medical negligence cost lives. It will explain the meaning and use of medical negligence laws in India, citing several cases that serve as decent examples to be reapplied in COVID-19 cases. Medical negligence is punishable under various laws such as torts, IPC, Indian Contracts Act, Consumer Protection Act, etc. It can be defined as misconduct by a medical practitioner or doctor, and causes many deaths and illnesses each year. This paper covers the legal aspects and consequences of medical negligence, liability of the victim, and aims to spread awareness regarding the same. This paper also explains how Section 304(a) Indian Penal Code provided some respite to those subjected to medical negligence during COVID-19.

The article proposes a concept of 'non-contractual obligations' as a fundamental legal category for European private law. Non-contractual obligations are an internally coherent part of the law of obligations, and they are fundamentally different from contractual obligations. Unjustified enrichment and tort law should therefore not be treated as independent or opposed types of obligations. A fundamental aspect of this conception is that 'unjustified enrichment' should not be misunderstood as a distinctive legal category; rather, it is a reason for liability that is functionally and structurally comparable with concepts such as fault or individual responsibility which apply throughout the legal system as a whole. To clarify the distribution between contractual and non-contractual obligations, the interplay of contractual and non-contractual rules and principles in borderline areas such as pre-contractual negligence is analysed. (2010) 1 JETL Non-contractual obligations are not a well-established concept of European private law. The European law library contains many textbooks and treatises on contract law, 1 on tort law, 2 on restitution, 3 and on the law of obligations as a whole, 4 but no

This article reports and analyses the results of a study of High Court negligence decisions from 2000 to 2010. The research establishes that the common law of negligence has been evolving toward the imposition of greater personal responsibility on plaintiffs in most circumstances, but especially in recreational activity cases. Further, the study reveals a substantial level of protection for public authority defendants at common law, challenging the assumptions that underpinned the significant statutory protections that were enacted in Australian jurisdictions from 2002 onwards. The data analysis therefore corroborates previous work of Australian tort law scholars and contradicts the claims made by policymakers at the start of the 21st century about the urgent need for tort law reform. Given that there has not been an empirical study of 21st century High Court negligence decisions to date, the study provides a foundation for future assessment of the effect of Australian tort law refo...

This paper presents an introduction to artificial intelligence for legal scholars and includes a computer program that determines the existence of jurisdiction, defences, and applicability of the Alien Tort Claims Act and Torture Victims Protection Act. The paper includes a discussion of the limits and implications of computer programming in formal representations of the law. Concluding that formalization of the law reveals implicit weaknesses in reductionist legal theories, this paper emphasizes the limitations in practice of such theories.

Direct brain intervention based mental capacity restoration techniques — for instance, psycho-active drugs — are sometimes used in criminal cases to promote the aims of justice. For instance, they might be used to restore a person’s competence to stand trial in order to assess the degree of their responsibility for what they did, or to restore their competence for punishment so that we can hold them responsible for it. Some also suggest that such interventions might be used for therapy or reform in criminal legal contexts — i.e. to make non-responsible and irresponsible people more responsible. However, I argue that such interventions may at least sometimes fail to promote these responsibility-related legal aims. This is because responsibility hinges on other factors than just what mental capacities a person has — in particular, it also hinges on such things as authenticity, personal identity, and mental capacity ownership — and some ways of restoring mental capacity may adversely affect these other factors. Put one way, my claim is that what might suffice for the restoration of competence need not necessarily suffice for the restoration of responsibility, or, put another way, that although responsibility indeed tracks mental capacity it may not always track restored mental capacities.

From the last quarter of the past century, Article 2059 of the civil code has been the subject of several rulings, which have tried to fit it to the personalistic principle expressed by the Constitution. In 2008 the Court of cassation achieved one of the major breakthroughs, finding that non-pecuniary damage is compensable not just when expressly provided for by the law, but also if tort infringes a human right. However, this solution is fraught of problems. Generally speaking, in terms of mere juridical interpretation it is a matter of finding a connection between the rule of Article 2059 and the principle of art. 2 cost. From a specific point of view, it is necessary to strike a balance between the pluralism that characterizes our era and the typicality principle. If it is not clear which interests shall be considered as human rights, the legislator choice (typicality) is likely to be practically neutralized with an indiscriminately widening of civil liability. A similar problem arises when a human right has been infringed within the framework of an obligation. Through “duties of protection” non-pecuniary damage suffered by person involved in a contract is compensable according to the breach of contract’s rules. But the instability in the debate about Article 2 cost. could lead to a general compensation of these kind of harms, going against the law of obligations. Moreover, this approach does not address the nowadays main issue of contractual non-pecuniary damage, i.e. the possibility of recovering non-economic expectation interest that performance would have satisfied. Increasingly often the claim for damage concerns this type of loss, but the Italian law system, at least in formal terms, is indifferent to this respect. While our law opened to compensation for non-pecuniary damage resulting from an aggression against human being, this is not valid also for the non-economic advantages that creditor would have obtained through the service. All these circumstances make necessary a study that systematically reconstructs the discipline of non-pecuniary damage. Once verified the actual extent of the limitations that Italian legal system opposes to its compensability, the book tries to ascertain the existence of juridical reasons still capable of justifying them and, in case not, proposes new solution models.

I also appreciate the helpful comments offered by the faculty members of Florida State University who attended my presentation of an early draft of this Article. Peter Brown and Eric Dentel provided excellent research and editorial assistance, for which I am quite grateful.

While combativeness is central to how our culture both experiences and conceptualizes litigation, we generally notice it only as a regrettable cost. This Article offers a less squeamish vision, one that sees in the struggle of people suing one another a morally valuable activity: the vindication of insulted honor. This claim is offered as a normative defense of a civil recourse approach to private law. According to civil recourse theorists, tort and contract law should be seen as empowering plaintiffs to act against defendants, rather than as economically optimal incentives or as a means of enforcing duties of corrective justice. The justification of civil recourse must answer three questions. First, under what circumstances-if any-is one justified in acting or retaliating against a wrongdoer? Second, under what circumstances does the state have reasons for providing a mechanism for such action? Finally, how are the answers to these questions related to the current structure of our private law? This Article offers the vindication of wronged honor as an answer to these three questions. First, I establish the historical connection between honor and litigation by looking at the quintessential honor practice, dueling. Then I argue that the vindication of honor is normatively attractive. I do this by divorcing the idea of honor from unsavory associations with violence and aristocracy, showing how it can be made congruent with certain core modern concerns. In particular, when insulted parties act against wrongdoers, they reestablish the position of respect and equality that the insult upset. I then show how having the state provide plaintiffs with a means of vindicating their honor avoids making the political community complicit in the humiliation of its citizens and provides those citizens with a means of exercising their agency in ways that provide a foundation for self-respect. Finally, I show those areas of private law where honor operates most powerfully as a justification for providing recourse through the courts, while acknowledging that it operates less powerfully as a reason in other areas.

Perhaps it is true, as Lord Bingham of Cornhill observed: "… one would normally be surprised if conduct which violated a fundamental right or freedom of the individual did not find reflection in a body of law as sensitive to human needs as the common law." 1 But this did not convince his fellow law lords that the tort liability of public bodies should be expanded in the wake of the Human Rights Act (HRA) 1998. Shortly before its transformation into the Supreme Court, the Appellate Committee of the House of Lords settled on the view that, at least in this field, tort law and the HRA have separate spheres of operation. 2 In doing so, their Lordships confounded the expectations of a significant body of opinion, including in the Court of Appeal. 3 At least since the decision of the European Court of Human Rights (ECtHR) in Osman v United Kingdom, 4 the view had come to be rather widely held that the HRA would lead to a convergence of the tort liability of public authorities and human rights principles. 5 Little wonder, then, that the issue continues to attract controversy. 6 This article defends the choice made by the House of Lords and explores its implications. Part II shows that the effect of this choice is to direct a particular set of claims away from the tort route and into the HRA route. These are claims that arise from the special responsibilities imposed by human rights law on the state

and Chepke (2008) for a description of this and previous medical malpractice insurance crises and possible determinants of the crises. 2 For more on the law and economic definition of defensive medicine and related literature, see Sloan and Chepke (2008).

Following the enactment of the 2009 Tort Liability Law the product liability system in China is largely complete. This article sketches the development of this system before outlining some of the main substantive provisions in force today and drawing comparisons between the Chinese approach and the US and European provisions. The Article will conclude that China's product liability system provides an interesting case study which enriches the study of global trends and norms in the product liability arena. In line with many other countries, particularly in the Asia-Pacific region, the main influence on China has been the EC Directive rather than the US model.

thanks to the editors of this journal for their hard work and helpful suggestions and to Eli Best and Alex Sarch for valuable research assistance. 1. See, e.g., WILLIAM M. LANDES AND RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 1 (1987) (defending "the hypothesis that the common law of torts is best explained as if the judges who created the law. .. were trying to promote efficient resource allocation"). 2. See, e.g., JULES L. COLEMAN, RISKS AND WRONGS 325 (1992). Of course, tort theorists' substantive views do not sort perfectly by discipline, but the sort is good enough that it is not misleading to juxtapose an economists' view of tort with a philosophers'.

We show that, under the reasonable person negligence rule, heterogeneity of potential injurers can be sufficient to create a demand for liability insurance. Potential injurers with a low probability of accidents or a high cost of exercising care have optimal levels of care that are below the negligence standard. For these groups, it may be less costly to be negligent and purchase insurance than to comply with the negligence standard. We show that the availability of insurance is socially desirable.

This article claims that liability of supervisors, given the arguments in favour and against liability, should be treated as a regular form of civil law liability (either in tort or contract). The rules regarding the existence and content of the duty of care are well equipped to deal with that topic fairly and justly, thus preventing undesirable or unreasonable outcomes. There is no sufficiently compelling reason to deviate from these generally applied rules or to accept immunity for supervisors. The system of tort law is well capable of avoiding the award of too much compensation too fast, as the conditions for liability are not easily fulfilled.

Should loss of earnings be compensated? The established law and economics wisdom considers pure economic loss as a transfer of wealth from the victim to a third party, whose earnings increase as a consequence of the accident. Such transfers do not amount to a social loss and, hence, should not be compensated. We revisit these arguments and show that the social loss should be calculated by taking into account that: (a) pure economic loss often involves impairment costs resulting from the fact that valuable resources cannot be temporarily used; and (b) the third-party earnings come at the cost of increased capacity. This increased capacity mitigates the expected harm and, hence, is a form of precaution. By taking into account these factors, we show that most pure economic loss cases do result in a socially relevant loss. In addition, we argue that the absence of a social loss is a necessary, but not sufficient, condition for the denial of compensation. The victim (or a third party) may have actually paid for protection against purely private losses. Thus, compensation should be awarded irrespective of whether national law treats the case under tort or contract (where compensation is undisputed). Finally, we offer considerations on the optimal design of liability rules.

This article shows that the least-cost avoider approach in tort is not necessarily the optimal way to attain least-cost avoidance when accidents can be avoided by either of two parties. When parties do not observe each other's costs of care at the time of the accident and are unable to determine which party is the leastcost avoider, they fail to anticipate the outcome of the adjudication. Under these circumstances, accident avoidance becomes a commons problem because care by each individual party reduces the prospect of liability for both parties. As a result, parties suboptimally invest in care. We show that regulation removes this problem and is superior to tort liability both when parties act simultaneously and when they act sequentially. We further examine how different liability rules perform in this respect. recognized as desirable because not only does it induce parties to prevent accidents but also it forestalls wasteful caretaking by the party with the highest costs of care or, even worse, caretaking by both parties. However, in most accident contexts, parties act rapidly, do not know each other, or do not have time to communicate. 2 Thus, they may not know who the least-cost avoider is and consequently fail to anticipate the outcome of adjudication. As a result, the incentives generated by liability are distorted. In this article, we show that, in general, regulation provides better incentives than ordinary liability rules and further compare several different liability rules and regulation in terms of incentives, administrative costs, and information requirements.

Background: Modern artificial intelligence applications are appearing in healthcare and medical practices. Artificial intelligence is used both in medical research and on patients via medical devices. The aim of this paper is to examine and compare English and Taiwanese tort laws in relation to medical artificial intelligence. Methods: The methodologies employed are legal doctrinal analysis and comparative law analysis. Results: The investigation finds that English tort law treats wrong diagnostic or wrong advice as negligent misstatement, and mishaps due to devices as a physical tort under the negligence rule. Negligent misstatement may occur in diagnosis or advisory systems, while a negligent act may occur in products used in the treatment of the patient. Product liability under English common law applies the same rule as negligence. In Taiwan, the general principles of tort law in Taiwan's Civil Code for misstatement and negligent action apply, whereas the Consumer Protection Act provides for additional rules on product liability of traders. Conclusions: Safety regulations may be a suitable alternative to tort liability as a means to ensure the safety of medical artificial intelligence systems.

This paper navigates through the civil liability legal theory in studying its economic effects. It aims at giving an insight of the Islamic system of liability. To do so, it begins with a brief introduction of what a liability system is through a glance at the experience of the United States in this regard. The American system of liability gives the courts a wide range of authority to assess the injury, which includes material, emotional, and loss of future income opportunity, and compensation that aims at not only granting the injured a recuperating sum, but also at deterring the injurer from such a behavior. The most serious economic outcome of the A system are: the grandiose uncertainty and unpredictability, and the huge amount of grants that represents high cost, and sometimes prohibitive, of liability. This led to long and cumbersome litigation, consumer profiteering, forsake of innovative ideas, and shortage of certain products and services. The Islamic system of liability cen...

While combativeness is central to how our culture both experiences and conceptualizes litigation, we generally notice it only as a regrettable cost. This Article offers a less squeamish vision, one that sees in the struggle of people suing one another a morally valuable activity: the vindication of insulted honor. This claim is offered as a normative defense of a civil recourse approach to private law. According to civil recourse theorists, tort and contract law should be seen as empowering plaintiffs to act against defendants, rather than as economically optimal incentives or as a means of enforcing duties of corrective justice. The justification of civil recourse must answer three questions. First, under what circumstances-if any-is one justified in acting or retaliating against a wrongdoer? Second, under what circumstances does the state have reasons for providing a mechanism for such action? Finally, how are the answers to these questions related to the current structure of our private law? This Article offers the vindication of wronged honor as an answer to these three questions. First, I establish the historical connection between honor and litigation by looking at the quintessential honor practice, dueling. Then I argue that the vindication of honor is normatively attractive. I do this by divorcing the idea of honor from unsavory associations with violence and aristocracy, showing how it can be made congruent with certain core modern concerns. In particular, when insulted parties act against wrongdoers, they reestablish the position of respect and equality that the insult upset. I then show how having the state provide plaintiffs with a means of vindicating their honor avoids making the political community complicit in the humiliation of its citizens and provides those citizens with a means of exercising their agency in ways that provide a foundation for self-respect. Finally, I show those areas of private law where honor operates most powerfully as a justification for providing recourse through the courts, while acknowledging that it operates less powerfully as a reason in other areas.

This Note offers a normative critique of cost-benefit analysis, one informed by deontological moral theory, in the context of the debate over whether tort litigation or a non-tort approach is the appropriate response to mass harm. The first Part argues that the difference between lay and expert intuitions about risk and harm often reflects a difference in normative judgments about the existing facts, rather than a difference in belief about what facts exist, which makes the lay intuitions more defensible. The second Part considers how tort has dealt with this divergence between lay and expert perspectives. It also evaluates how tort's approach has differed from that of public law approaches to accident law, such as legislative compensation and risk regulation by administrative agencies. Ultimately, tort's ability to recognize the value of lay intuitions supports retaining the tort perspective as part of our societal arsenal of responses to risk and harm. This ability can also support a pro-tort perspective in two practical debates in the arena of tort law: that over preemption of tort law by administrative agency judgments, and that over access to tort recovery as part of a no-fault system.

This Article examines a question that has become increasingly important in the emerging surveillance society: Should the law treat information as private even though others know about it? This is the third-party privacy problem. Part II explores two competing conceptions of privacy-the binary and contextual conceptions. Part III describes two features of the emerging surveillance society that should change the way we address the third-party privacy problem. One feature, "surveillance on demand, " results from exponential increases in data collection and aggregation. The other feature, "uploaded lives, " reflects a revolution in the type and amount of information that we share digitally. Part IV argues that the binary conception cannot protect privacy in the surveillance society because it fails to account for the new realities of surveillance on demand and uploaded lives. Finally, Part V illustrates how courts and legislators can implement the contextual conception to deal with two emerging surveillance society problems-facial recognition technology and geolocation data.

This paper navigates through the civil liability legal theory in studying its economic effects. It aims at giving an insight of the Islamic system of liability. To do so, it begins with a brief introduction of what a liability system is through a glance at the experience of the United States in this regard. The American system of liability gives the courts a wide range of authority to assess the injury, which includes material, emotional, and loss of future income opportunity, and compensation that aims at not only granting the injured a recuperating sum, but also at deterring the injurer from such a behavior. The most serious economic outcome of the A system are: the grandiose uncertainty and unpredictability, and the huge amount of grants that represents high cost, and sometimes prohibitive, of liability. This led to long and cumbersome litigation, consumer profiteering, forsake of innovative ideas, and shortage of certain products and services. The Islamic system of liability cen...

In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court's recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival. Our argument is that the Supreme Court's theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment-tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has adopted a particular and dominant, but highly contested, theory of private law. It is the theory that private law is not private at all; it is part and parcel of government regulation, or "public law in disguise." Part I is a brief overview of how that jurisprudential view came to be, as well as a sketch of a competing view of private law as individual justice. In Part II, we briefly trace the development of the doctrine surrounding the tension between the First Amendment and private law, particularly tort law, and how it helps lead to the view of private law as government regulation displayed in Snyder. We also point out how the intentional infliction of emotional distress tort, the main

In Snyder v. Phelps, the Supreme Court ruled that the Westboro Baptist Church had a First Amendment right to picket the funeral of a young soldier killed in Iraq. This decision reinforces a view that has become increasingly dominant in First Amendment jurisprudence — the view that the state may not regulate public discourse to protect individuals from emotional or dignitary injury. This Article contends that this view not only sacrifices the law’s protections for individual personality but also undermines the normative foundations of public discourse itself. The Article then presents an alternative theory of the First Amendment which holds that the same values of human dignity and autonomy that support free speech also give rise to other fundamental rights. Thus, speakers should have a duty to respect the personality and rights of others. Drawing extensively on the record in Snyder as well as on other materials, the Article argues that Westboro’s funeral picketing should not receive...

Contemporary tort theory is dominated by a debate between legal economists and corrective-justice theorists. Legal economists suppose that tortfeasors and tortious wrongs are false targets for cheapest cost-avoiders and avoidable future losses. Corrective-justice theorists argue powerfully that the economic account of tort as search for cheapest cost-avoiders with respect to future accidents does not capture the most fundamental fact about tort adjudication, namely, that the reason we hold defendants liable in tort is that they have wronged their victims and should therefore repair the harm they have done. Deterring cheapest cost-avoiders from committing future harms no more justifies imposing liability in tort than deterring future crime justifies hanging the innocent. This is a powerful critique of the economic theory of tort, but it overshoots the mark. As an account of tort law, corrective justice puts the cart before the horse Tort is a law of wrongs, not just a law of redress ...

decided that no such claim could be made by a child when medical negligence in failing to order an in utero genetic test caused the child severe disability. In an era when almost all pregnancies will soon require patented fetal genetic tests as part of the professional standard of care, the High Court, by barring so-called "wrongful life" (better termed "wrongful suffering") claims, may have created a partial immunity from suit for their corporate manufacturers and the doctors who administer them. What lessons can be learnt from this case about how the Australian High Court is, or should be, approaching medical negligence cases and its role as guardian of the Australian common law?

, as well as the referees and editors of Ethics, for their many constructive comments and helpful suggestions. 1. Ronald de Sousa, The Rationality of Emotions (Cambridge, Mass.: MIT Press, 1987), p. 17. 2. To be sure, not all who lack self-respect feel miserable as a result; I focus on that sort of experience for reasons that will become clear. For other ways of lacking self-respect, see my "How to Lose Your Self-Respect,"

We examine the theoretical and empirical literature pertaining to securities laws and their enforcement by regulators and courts to establish what is known and what is yet unclear. Recent empirical research in the field has established that law matters. Mandatory disclosure requirements, insider trading laws, safeguards against self dealing transactions, adequate regulatory powers and simple laws that are easily enforced aid in the development of capital markets. The debate is now focused on identifying which components of securities laws matter most and on what the optimal regulatory framework for each country should be. Although public enforcement of securities laws is important, I find that the largest impact comes from aspects of the law that facilitate private enforcement. This means that the development of capital markets depends crucially on the creation of laws that facilitate enforcement and the improvement of court procedures that allow for a more efficient dispute resolution.