developments in other disciplines are pushing legal scholars to expand their areas of interest, and hence this work intends to be at the crossroad of the law and three other disciplines: economics, philosophy, and physics. The methodology adopted is therefore interdisciplinary and is driven by the topic of the different chapters. Chapter II discusses the concept of causation in natural sciences and philosophy and therefore the tools of philosophy of science are widely used to offer an interpretation of the findings of modern science. Chapter II and Chapter III use the tools of legal philosophers in order to argue that the findings of natural scientists and philosophers are relevant to the study of the law. Once having established that there are good philosophical reasons to adopt a view of the world that is in line with natural sciences, the thesis becomes purely normative. In this vein, Chapter II and Chapter IV analyze and compare different solutions to practical problems. At this stage, the role of law and economics becomes prominent, as it offers a relatively simple way to compare and rank different policy solutions. From this perspective, a key concept is the notion of efficiency. A policy solution will be considered superior to its alternatives whenever there are good reasons to affirm that it will be more efficient (i.e. it leads to a higher level of social welfare) than the other feasible policies. The concept of corrective justice will also be used to assess the consequences of the solutions presented. Lastly, as chapter V investigates the robustness of traditional law and economics model, a theoretical law and economics approach is adopted.
Landesman has inspired me on multiple levels, some of which I have only recently begun to fully understand. Looking back, I was first amazed and intrigued by Bruce, a person unlike any I had ever met. I sensed that Bruce embodied numerous attributes, both as a scholar and as a person, that I not only admired but I sought to develop in myself. As a first year undergraduate, I first learned Rawlsianism from Bruce in a survey course on political theory. To his credit, even by the end of the course, I had only subtle clues about which political theory Bruce himself endorsed. I sought to take all of his courses. As a philosophy professor at a university where ideology is a ticking time bomb set to blow at any moment, especially during a philosophy class, Bruce demonstrated time and time again his gifts as an ambassador of Reason. Such gifts were particularly important to me as one undergoing substantial ideological shifts. I consciously and unconsciously started to emulate Bruce when I discussed hotbed issues in and out of academic settings. As if that was not enough, Bruce’s life also demonstrated to me that you can practice what you preach. For example, as a student at the University of Michigan, Bruce would ride the bus all of the way to Texas to participate in protests in favor of equal civil rights for African Americans. Not surprisingly, I sought Bruce’s skillful mentoring for my first attempt at writing a substantial piece of philosophy. That experience was what I always returned to when my other attempts at finding a career proved unsatisfying. Ultimately, that
17 developments in other disciplines are pushing legal scholars to expand their areas of interest, and hence this work intends to be at the crossroad of the law and three other disciplines: economics, philosophy, and physics. The methodology adopted is therefore interdisciplinary and is driven by the topic of the different chapters. Chapter II discusses the concept of causation in natural sciences and philosophy and therefore the tools of philosophy of science are widely used to offer an interpretation of the findings of modern science. Chapter II and Chapter III use the tools of legal philosophers in order to argue that the findings of natural scientists and philosophers are relevant to the study of the law. Once having established that there are good philosophical reasons to adopt a view of the world that is in line with natural sciences, the thesis becomes purely normative. In this vein, Chapter II and Chapter IV analyze and compare different solutions to practical problems. At this stage, the role of law and economics becomes prominent, as it offers a relatively simple way to compare and rank different policy solutions. From this perspective, a key concept is the notion of efficiency. A policy solution will be considered superior to its alternatives whenever there are good reasons to affirm that it will be more efficient (i.e. it leads to a higher level of social welfare) than the other feasible policies. The concept of corrective justice will also be used to assess the consequences of the solutions presented. Lastly, as chapter V investigates the robustness of traditional law and economics model, a theoretical law and economics approach is adopted.
108 The analysis above considered “result” and “circumstance” elements of a crime. The
crime of “negligent driving” implicates a third type of offense element recognized by the MPC—namely, a “conduct” element. Other examples are “breaking and entering” in the crime of burglary, or “exceeding the speed limit” in the crime of speeding. Such elements are probably best analyzed in the same manner as explicit result elements (or, sometimes, as circumstance elements). Implicitly, “conduct” elements require an actor to perform some basic act or acts and thereby engage in, or cause, the statutorily defined “conduct.” Consider “negligent driving.” If you enter a car, turn the ignition, and press the accelerator, you will be “driving” the car. More precisely, we might say that your “driving” is the result of your basic acts, i.e., that “driving” requires you to perform basic acts that in turn cause the operation of a motor vehicle. See Michael Moore, Act and Crime: The Philosophy of Action and Its Implications for Criminal Law, Ch. 8 (1993).
The sums paid are based on a tariff, with around £1,000 awarded for relatively minor injuries such as fractured bones, and at the upper end, £250,000 for serious brain damage. The tariff amounts were increased in 2001 after media criticism of the awards made in several high-profile cases. Most of the tariff awards are roughly comparable to the sums that would be awarded by a court for the same kinds of injury, but the amounts awarded to victims of crimes that have caused very serious injury can be considerably higher than those that are likely to be awarded by a court. The scheme also compensates victims of crime for loss of earnings and expenses, but no com- pensation is paid for the first 28 weeks’ loss of earnings, and the total amount of compensation for loss of earnings is limited to £250,000. In practice the scheme provides a remedy where a person’s rights in tort are useless because the assailant has not been identified, or would be unable to pay substantial damages if sued.
As we saw earlier, most torts require the claimant to prove that the defendant was at fault in some way, meaning that they deliberately caused harm or failed to take reason able precautions to prevent it. You might well think that this is just common sense, because it is obviously fairest to impose liability where the defendant is at fault. However, it can be argued that there are good reasons why fault should not be a requirement for tort liability, and there are some legal experts who argue that more areas of tortlaw, particularly those involving injury, should be subject to strict liability or should be taken out of the tort system altogether and compensated on a no-fault basis, where claimants would only have to prove that they had a particular injury rather than having to pin the blame on someone for it. Such a system exists in New Zealand and we will look at it a bit later. This issue often comes up on exam papers, so it is useful to look at some of the arguments for and against the requirement of fault.
A duty is only owed to avoid inflicting recognisable psychiatric illnesses under both the common law 1 and Civil Liability Act (“CLA”). 2 It is assumed that post traumatic stress disorder (“PTSD”) is a recognised illness. However, the initial trauma suffered, and subsequent panic attacks and anxiety would be akin to grief and sorrow 3 which do not give rise to a duty.
1.2 Potential injurers’ programs
Tortlaw literature focuses on the behavior of a single representative firm. However, considering oligopolistic competition makes more complex the injurers’ strategic space. Oligopolistic competition involves strategic interactions between different decision-makers. In the short-term, the strategic variables are prices and quantities for given production cost structures while in longer terms, productive capacities and technologies may vary (Tirole (1988)). Here, besides price and quantities, the financially constrained injurers must choose between production and prevention effort. Generally under oligopolistic competition, firms are limited in capacity (production, finance etc.) or still by the financial loans they contract from finance suppliers (banks or financial markets). Indeed, production needs financial means to pay wages, buy intermediary products etc., and, in actual life these means are limited. This liquidity constraint differs from their illiquid assets.
So long as we restrict our gaze to the apportionment of costs between a particular injurer and the victim of her negligence, negligence law is exacting and intolerant, but justifiably and fairly so. The activities that negligence liability regulates are unforgiving. Small mistakes can explode into serious injuries. Momentary lapses of attention behind the wheel of a car—or at the helm of a ship, or at the controls of a plane—can and do destroy human lives. The seriousness of the harm risked by ordinary negligence is a good reason to hold actors to strict standards of conduct. And the failure to conform to a norm of reasonable care is a kind of wrongdoing, even if not a particularly egregious one. Wrongdoing fairly exposes wrongdoers to responsibility to repair the harm that they have done. Forgiving wrongful lapses in concentration and failures of foresight would allocate the losses these frailties cause even more unfairly. Why should injured victims absorb the costs of the carelessness that harmed them? Shifting the costs of a negligent injury to the wrongdoer whose inadvertence caused it may be harsh, but it is fairer than letting the loss lie where it fell. Finally, forgiving lapses in concentration and failures of foresight might well encourage carelessness. Forbearance tends to foster the objects of its indulgence.
to object to this idea, of course, but they are wrong to think the idea has anything to do with tortlaw. An award of compensatory damages does not purport to inflict on the defendant a loss that she deserves. To suppose that it does is to make the mistake of equating that which a victim is morally entitled to demand from her injurer (by way of compensation) with that which an injurer deserves to have happen to her (by way of punishment). An injurer guilty only of minor carelessness admittedly does not deserve much punishment. She surely does not deserve to lose a large amount of money. But her victim might nevertheless be entitled to demand a large amount of money by way of compensation, especially if the victim is less at fault for the injury than the injurer is.
28. Under the amendments, a plaintiff may prevail on a Title VII discrimination claim if she establishes a protected trait was a motivating factor for a decision, and the employer may estab- lish a limited defense to damages only if it shows it would have made the same decision absent a protected trait. Id. §§ 2000e-2(m), 2000e-5(g)(2)(B). Congress also amended Title VII’s dispa- rate impact provisions, and these amendments do not mimic tortlaw. See 42 U.S.C. § 2000e- 2(k)(1)(A). Although Congress did add additional tort-like remedies to Title VII, there is little indication that these remedies were designed to transform Title VII into a tort. When Congress defined compensatory damages under Title VII, it provided a more narrow definition of these damages than the one imposed under common law. See 42 U.S.C. § 1981a(b)(2). The damages provision for the ADEA, which is modeled after the Fair Labor Standards Act, provides only limited remedies and not the full panoply of damages that would be available at common law. 29 U.S.C. §§ 216(b), 626(b) (2012).
This paper estimated the effects of tortlaw and insurer investment returns on physician malpractice insurance premiums. Data were collected on tortlaw from 1991 through 2004, and multivariate regression models, including fixed effects for state and year, were used to estimate the effect of changes in tortlaw on medical malpractice premiums. The premium consequences of national policy changes were simulated. The analysis found that the introduction of a new damage cap lowered malpractice premiums for internal medicine, general surgery, and obstetrics/gynecology by 17.3%, 20.7%, and 25.5%, respectively. Lowering damage caps by $100,000 reduced premiums by 4%. Statutes of repose also resulted in lower premiums. No other tortlaw changes had the effect of lowering premiums. Simulation results indicate that a national cap of $250,000 on awards for noneconomic damages in all states would imply premium savings of $16.9 billion. Extending a $250,000 cap to all states that do not currently have them would save $1.4 billion annually, or about 8% of the total. A negative effect on malpractice premiums was found for the Dow Jones industrial average, but not for bond prices; effects of the Nasdaq index were not significant for internal medicine, but were marginally significant for surgery and obstetrics premiums.
Article 20 Where any harm caused by a tort to a personal right or interest of another person gives rise to any loss to the property of the victim of the tort, the tortfeasor shall make compensation as per the loss sustained by the victim as the result of the tort. If the loss sustained by the victim is hard to be determined and the tortfeasor obtains any benefit from the tort, the tortfeasor shall make compensation as per the benefit obtained by it. If the benefit obtained by the tortfeasor from the tort is hard to be determined, the victim and the tortfeasor disagree to the amount of compensation after consultation, and an action is brought to a people’s court, the people’s court shall determine the amount of compensation based on the actual situations.
Law of 7 Nov. 1922. However, he who possesses by whatever right all or part of a building or of personal property in which a fire occurs is liable vis-à-vis third person for damage caused by such fire only if it is proved that it should be attributed to his fault or to the fault of persons for whom he is responsible. Law of 22 Nov. 1922. This provision does not apply to relations between owners and tenants, which remain regulated by Articles 1733 and 1734 of the Civil Code.
scales of justice remind us that the public as well as this victim have a right to feel safe when alone in their own homes. Since the incident here occurred, D.D. has been afraid to leave her apartment, afraid to be left alone and, even worse, afraid to walk around her own apartment. Each and every one of us has the fundamental right to be left alone. Our right to privacy is one of the most protected of our natural rights, having its origin in natural law, and protected by both state and federal constitutions.” (citing U.S. C ONST . pmbl. and N.J. C ONST . art. I, ¶ 1 (1947))); cf. Clinic for Women, Inc. v. Brizzi, 814 N.E.2d 1042, 1049–50 (Ind. Ct. App. 2004) (acknowledging that privacy is a natural right and a core value animating state constitutional law); Doe v. Doe, 314 N.E.2d 128, 137 (Mass. 1974) (Reardon, J., dissenting) (“The ‘right of privacy’ cases discussed above have as an implicit assumption that as matter of practical universal agreement and natural right there exists a critical interest in individual control of certain aspects of human lives. The explicitly defined prohibition of State interference with these rights evinces an implicit recognition that to some degree these interests are protectible against private persons as well. Thus there is a cognizable private interest in begetting and raising children and, indeed, in the termination of a pregnancy. It is, I submit, equally true that such an interest exists in the father with respect to the completion in birth of an existing pregnancy.”); State v. Howe, 308 N.W.2d 743, 749 (N.D. 1981) (Pederson, J., specially concurring) (“Free men and women can be injured by unwarranted invasion of privacy—whether we should call it a natural right or constitutional in scope has not been settled in the minds of judicial scholars.” (citing City of Grand Forks v. Grand Forks Herald, Inc., 307 N.W.2d 572 (N.D. 1981))).
What we see from these examples, therefore, is a range of different ways in which legislation creating an alternate remedial framework affects the law of tort. Yet, whilst the fact of an effect is quite clear, why certain statutes affect the law in one way whilst others affect it in a different way remains unclear. In none of these cases was the effect of the statute on tort a foregone conclusion at the time of its enactment, and the judicial decisions that set the law on its path do not provide much insight into why that path was chosen. Nor, regrettably, does Commonwealth tort theory currently engage with the question of how the courts should engage with regulatory frameworks when the two occupy the same field. Lee's contribution marks a welcome beginning towards grappling with that issue, which is likely to play an increasingly important role in influencing the development of tortlaw.