Torts & Products Liability Law最新文献

{"title":"A Dynamic Model of Lawsuit Joinder and Settlement","authors":"A. Daughety, Jennifer F. Reinganum","doi":"10.2139/ssrn.1446904","DOIUrl":"https://doi.org/10.2139/ssrn.1446904","url":null,"abstract":"In this paper we examine a dynamic model of the process by which multiple related lawsuits may be filed and combined; we also examine actions a defendant may employ that may disrupt the formation of a joint suit. Our initial model involves two potential plaintiffs, with private information about the harm they have suffered, in a multi-period setting with positive costs of filing a suit. If two plaintiffs file, they join their suits to obtain a lower per-plaintiff trial cost and a higher likelihood of prevailing against the defendant. We find that some plaintiff types never file, some wait to see if another victim files and only then file, some file early and then drop their suits if not joined by another victim and, finally, some file and pursue their suits whether or not they are joined; thus, the equilibrium resembles a \"bandwagon.\" We then consider the effect of allowing preemptive settlement offers by the defendant aimed at discouraging follow-on suits. Preemptive settlement results in a \"gold rush\" of cases into the first period. In general, plaintiffs (ex ante) strictly prefer that such preemptive settlements not be allowed, and computational results suggest this may be broadly true for defendants as well; however, the inability of defendants to commit to such a policy results in an equilibrium with preemptive settlement. Finally, we consider partial unawareness of victims as to the source of harm; this provides a role for plaintiffs' attorneys, who may seek additional victims to join a combined lawsuit. Confidential preemptive settlements in the case of partial unawareness restrict the plaintiff's attorney from seeking additional victims and therefore leads to higher preemptive settlement amounts. Moreover, the defendant strictly prefers to employ preemptive settlement if the fraction of unaware victims is sufficiently high.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124444537","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Quantitative Proof of Reputational Harm","authors":"Meiring de Villiers","doi":"10.2139/ssrn.1421604","DOIUrl":"https://doi.org/10.2139/ssrn.1421604","url":null,"abstract":"Economists have advocated, and courts have accepted a decline in the stock price of a defamed corporation as an economic measure of its reputational harm. Although the economic rationale for this approach is sound and widely accepted, its legal foundations and consistency with the damages doctrines of defamation law have remained unexplored. This article presents an analysis of its legal basis. The analysis shows that the logic of common law precedent, supported by statutes and academic commentary, points to a measure of special damages for reputational harm based on stock market data.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116428343","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Injuries, Damages and a Puzzle: Can an Effect Ever Precede its Cause","authors":"Stathis Banakas","doi":"10.1007/978-3-642-00612-8_45","DOIUrl":"https://doi.org/10.1007/978-3-642-00612-8_45","url":null,"abstract":"","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123835573","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Efficiency, Fairness, and the Economic Analysis of Tort Law","authors":"Mark A. Geistfeld","doi":"10.1017/CBO9780511575488.015","DOIUrl":"https://doi.org/10.1017/CBO9780511575488.015","url":null,"abstract":"Throughout its history, the economic analysis of tort law has been largely limited to one question: How should tort rules be formulated so as to minimize the social cost of accidents? Throughout its history, the economic analysis of tort law has also been controversial. The two phenomena are related. It is highly controversial whether tort law should minimize accident costs to the exclusion of fairness concerns, which in turn has fostered the belief that the economic analysis of tort law is controversial.The most forceful critique has come from those who maintain that tort liability is best justified by the principle of corrective justice. This principle is based on an individual right that imposes an obligation or duty on another individual. A duty-holder who violates the correlative right has committed a wrong, creating a duty to repair or correct any wrongful losses suffered by the right-holder. This rights-based principle of justice purportedly rules out the economic analysis of tort law. Such sweeping claims about the irrelevancy of economic analysis must be understood in context. If the appropriate rationale for tort liability is a rights-based principle such as corrective justice, then the justification for a liability rule does not depend on whether it is allocatively efficient. Economic analysis is “ruled out” for being irrelevant to the rights-based justification for tort liability. Allocative efficiency does not need to be the norm of tort liability in order to make economic analysis relevant. Economic analysis is not limited to issues of allocative efficiency and cost minimization. It is an open question whether a rights-based tort system would employ economic analysis, and if so, how.To address this question, I specify the substantive content of an autonomy-based, individual right that is both allocatively inefficient and fully compatible with the relevant requirements of welfare economics. As I have argued at length elsewhere, such a right also provides a good description of tort law. Thus, the idea that economic analysis is incompatible with or irrelevant to a rights-based principle of justice is mistaken. I conclude by arguing that economic analysis is integral to any plausible rights-based tort system.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"306 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-04-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125661105","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fault at the Contract-Tort Interface","authors":"Roy Kreitner","doi":"10.1017/CBO9780511780097.008","DOIUrl":"https://doi.org/10.1017/CBO9780511780097.008","url":null,"abstract":"The formative period in the history of contract and tort (in the second half of the nineteenth century) may be characterized by the cleavage of contract and tort around the concept of fault: tort modernized by moving from strict liability to a regime of “no liability without fault,” while contract moved toward strict liability. The opposing attitudes toward fault are puzzling at first glance. Nineteenth-century scholars of private law offered explanations for the opposition, reasoning that alternative ideas about fault account for the different character of state involvement in enforcing private law rights: tort law governs liabilities imposed by law on nonconsenting members of society (and thus, it should limit itself to fault-based conduct), while contract law governs bargained-for duties and liabilities of parties who exercise freedom of contract (and thus, liability voluntarily undertaken need not consider fault). These theories are problematic, especially because they cannot offer a complete account of contract or tort. Tort retains too much strict liability to be thought of as a regime of no liability without fault, and contract has too many fault-based rules to be conceived of through strict liability. While these justifications for the distinction between contract and tort were questioned in ensuing generations, they still structure much of the debate over the current boundary between contract and tort.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131421617","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Intent in Tort Law","authors":"Keith N. Hylton","doi":"10.2139/ssrn.1393300","DOIUrl":"https://doi.org/10.2139/ssrn.1393300","url":null,"abstract":"This paper, prepared for the 2009 Monsanto Lecture in Tort Jurisprudence, explains intent standards in tort law on the basis of the incentive effects of tort liability rules. Intent rules serve a regulatory function by internalizing costs optimally. The intent standard for battery internalizes costs in a manner that discourages socially harmful acts and at the same time avoids discouraging socially beneficial activity. The intent standard for assault is more difficult to satisfy than that for battery because it is designed to provide a subsidy of a sort to the speech that is often intermixed with potentially threatening conduct. In addition to the optimal internalization goal, transaction costs play a role in the specification of intent requirements. The subtle difference between the intent requirements for trespass and battery can be explained on the basis of transaction costs.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"69 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122869743","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Opinio Juris Volume 1/2009","authors":"P. G. Monateri, Giovanni Comandé, Paul Nihoul, Francesco Donato Busnelli, Rémy Cabrillac","doi":"10.2139/SSRN.1358584","DOIUrl":"https://doi.org/10.2139/SSRN.1358584","url":null,"abstract":"Comparer les comparaisons, Le probleme de la legitimite culturelle et le nomos du droit - Comparing Comparativisms, Nomos and Narrative as Cultural Legitimation. (P. G. Monateri) Doing Away with Inequality in Loss of Enjoyment of Life. (G. Comande) Les consommateurs sont-ils proteges dans l'environnement liberalise? Une analyse fondee sur l'etude du cadre reglementaire europeen relatif aux communications electroniques. - Are consumers protected in the liberalised environment? An analysis based on the European regulatory framework relating to electronic communications. (P. Nihoul) The Problem of Reproductive Cloning. (F. D. Busnelli) D'un code a l'autre, les difficultes d'une recodification - The difficulties of the recodification. (R. Cabrillac)","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121025534","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Economic Criteria for Criminalization: Why Do We Need the Criminal Law?","authors":"K. Svatikova","doi":"10.2139/ssrn.1150689","DOIUrl":"https://doi.org/10.2139/ssrn.1150689","url":null,"abstract":"The main purpose of this paper is the identification of criteria that justify the choice of (costly) criminal law enforcement over administrative or tort law to address harmful activities. Specifically, using a Law and Economics approach, this paper demonstrates when and why criminal law should be used and what the comparative advantages of criminal law are over other legal alternatives. By not exclusively focusing on the distinction between tort and crime, but also on the use of criminal law vis-a-vis administrative law, this paper will provide some contributing remarks to existing literature. Based on the analysis in this paper, it is argued that criminalization of an act should occur in areas where: (1) harm (or benefit to the criminal) is large and/or immaterial and/or diffuse and/or remote; (2) prosecution of a violation creates stigma; (3) the probability of detection is low; and/or (4) criminalization carries an educative role. Under these circumstances, ceteris paribus, criminal law is justified as the most efficient instrument to internalize the social cost of harms.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123574329","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reforming Personal Injury Claims Settlement: Paying More Attention to Emotional Dimension Promotes Victim Recovery","authors":"A. Akkermans","doi":"10.2139/ssrn.1333214","DOIUrl":"https://doi.org/10.2139/ssrn.1333214","url":null,"abstract":"The Dutch Ministry of Justice commissioned the VU University Amsterdam to investigate the needs, expectations and experiences of victims and their relatives with regard to the settlement of personal injury losses. This study shows that most victims are concerned with needs of a non-pecuniary nature in addition to financial compensation. Even if the most important reason for taking action is financial in nature, non-pecuniary needs play an important role. Much goes wrong, however, when it comes to meeting those needs. Nevertheless, in contrast to what is often assumed, civil liability law has certain characteristics which actually make it quite suitable for meeting the non-pecuniary needs of victims. This positive potential is not realized, however, due to the fact that the current practice of handling personal injury claims focuses almost exclusively on financial compensation. This is all the more problematic as the failure to meet these non-pecuniary needs is not only experienced as frustrating, but also constitutes an impediment to recovery, while in the field of personal injury the law holds that recovery takes precedence over compensation. The study concludes that by paying insufficient attention to the non-pecuniary needs of claimants, current liability law fails to pursue its own restitutionary goals. This state of affairs calls for reform of the claims settlement process, to which end some tentative suggestions are made.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114660187","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legal Liability for Dam Failures","authors":"D. Binder","doi":"10.2139/SSRN.1330511","DOIUrl":"https://doi.org/10.2139/SSRN.1330511","url":null,"abstract":"Although major dams are not designed or intended to fail, the unexpected may occur with tragic consequences. In the unlikely event of such a tragedy, the legal system has a full panoply of remedies available to compensate the victims and their families for the losses incurred. While each state is a separate jurisdiction free to adopt its own legal rules, regulations and theories of relief, the states will generally utilize the common-law theories of negligence and strict liability in awarding relief. Many steps can be taken to minimize the risks of failure.Potential damages include the traditional common law compensatory awards for loss of life/wrongful death, personal injury, loss of earnings, medical expenses, emotional distress, and property damages. There is also an additional risk of punitive damages being awarded if defendant's wrongful conduct is viewed as intentional, egregious, willful, wanton or reckless.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"254 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117321468","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}