Law & Society: Private Law - Torts eJournal最新文献

{"title":"Misleading Conduct, Reliance and Market-Based Causation","authors":"Henry Cooney","doi":"10.2139/ssrn.3844518","DOIUrl":"https://doi.org/10.2139/ssrn.3844518","url":null,"abstract":"Recent Australian decisions have opened the door to the possibility of liability premised on a ‘market-based’ theory of causation. This article is concerned to explore this emerging category of claims, particularly when founded upon an allegation of misleading or deceptive conduct. Specifically, this article is concerned to examine the nature of market-based causation and to consider the role that ‘reliance’ has in a case based on a market-based theory of causation. This article’s core contention is that the enquiry into factual causation has been unhelpfully merged with the scope of liability enquiry in cases involving misleading or deceptive conduct. This unfortunate mix-up has led to a misunderstanding of the role of reliance in cases of market-based causation. This article argues that, in a case of market-based causation, the concept of ‘reliance’ is not always relevant to the factual causation enquiry. Instead, reliance (or the absence of reliance) is best viewed as a normative issue going to a defendant’s scope of liability.","PeriodicalId":410319,"journal":{"name":"Law & Society: Private Law - Torts eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129825261","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":"Equilibria under Liability Rules: How the Standard Claims Fall Apart","authors":"R. Singh, A. Feldman","doi":"10.2139/ssrn.3798701","DOIUrl":"https://doi.org/10.2139/ssrn.3798701","url":null,"abstract":"In many accident contexts, the accident harm depends on observable as well as unobservable dimensions of the precaution exercised by the parties involved. The observable dimensions are commonly referred to as the `care' levels and the unobservable aspects as the `activity' levels. In a seminal contribution, Shavell (1980) extended the scope of economic analysis of liability rules by providing a model that allows for the care as well as activity level choices. Subsequent works have used and extended Shavell's model to predict outcomes under various liability rules and also to compare their efficiency properties. These works make several claims about the existence and efficiency of equilibria under different liability rules, without providing any formal proof. In this paper, we re-examine the prevalent claims in the literature using the standard model itself. Contrary to prevalent claims, we show that the standard negligence liability rules do not induce equilibrium for all the accident contexts admissible under the model. Under the standard model, even the `no-fault' rules can fail to induce a Nash equilibrium. In the absence of an equilibrium, it is not plausible to make a claim about efficiency of a rule per-se or vis-a-vis other rules. <br> <br>We show that even with commonly used utility functions that meet all the requirements of the standard model, the social welfare function may not have a maximum. In many other situations fully compatible with the standard models, a maximum of the social welfare function is not discoverable by the first order conditions. Under the standard models, even individually optimum choices might not exist. <br><br>We analyze the underlying problems with the standard models and offer some insights for future research on this subject.","PeriodicalId":410319,"journal":{"name":"Law & Society: Private Law - Torts eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123224971","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":"The Indignities of Civil Litigation","authors":"Matthew A. Shapiro","doi":"10.2139/SSRN.3369624","DOIUrl":"https://doi.org/10.2139/SSRN.3369624","url":null,"abstract":"Dispute resolution has become increasingly shrouded in secrecy, with the proliferation of protective orders in discovery, confidential settlement agreements, and private arbitration. While many civil procedure scholars have criticized this trend for undermining the systemic benefits of public adjudication, the desirability of secrecy in civil litigation proves to be a much more complicated question. \u0000 \u0000On the one hand, some of those same scholars have recently sought to justify civil litigation in terms that, ironically, highlight the benefits of secrecy. Although this new justification remains somewhat inchoate, it is best understood as a claim that the procedures of civil litigation allow individual plaintiffs to realize one aspect of their dignity — which this Article labels “dignity-as-status” — by empowering them to call those who have allegedly wronged them to account and to thereby reassert their standing as equals. The problem is that civil litigation can also undermine another aspect of plaintiffs’ dignity — which this Article labels “dignity-as-image” — by requiring them to divulge sensitive personal information and thus to cede control over their public self-presentation. Secrecy can help to preserve this second aspect of plaintiffs’ dignity. \u0000 \u0000On the other hand, secrecy can also deprive plaintiffs of a potentially powerful expressive weapon in their quest to hold wrongdoers accountable. In conditions of socioeconomic inequality, weaker plaintiffs can sometimes turn the humiliating aspects of civil litigation to their advantage, intentionally revealing sensitive personal information that emphasizes their lower social status in order to shame their more powerful adversaries. It turns out that civil litigation can indeed promote plaintiffs’ dignity-as-status, but by affording them a venue in which to deliberately compromise their dignity-as-image — to humiliate, as much as ennoble, themselves. \u0000 \u0000Given the complex nature of dignity and the complex trade-off between secrecy’s dignitarian benefits and costs, plaintiffs should be given more control over how much of their personal information is disseminated beyond the immediate parties to a lawsuit — a prescription with implications not only for secrecy in civil litigation, but also potentially for several other prominent procedural issues.","PeriodicalId":410319,"journal":{"name":"Law & Society: Private Law - Torts eJournal","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125694645","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":"Helping Judges and Juries Understand the Valuation of Chronic Pain Using the Subjective Well-Being Valuation Method","authors":"T. Brown, Gabriella Wong","doi":"10.2139/ssrn.3543821","DOIUrl":"https://doi.org/10.2139/ssrn.3543821","url":null,"abstract":"Chronic pain is an issue that forensic economists are often called upon to value. However, some methods of valuing chronic pain are difficult for judges and juries to understand. One approach that is relatively easy for judges and juries to grasp is the subjective well-being valuation method, specifically when using identical twins. We provide an example of such an analysis in which we determine the value of chronic pain by exploiting variation in chronic pain between identical twins in a nationally representative and adequately powered sample using the subjective well-being valuation method. Subjective well-being is measured as global life satisfaction. To measure the impact of chronic pain in a manner independent of the part of the body afflicted with pain, we measured chronic pain multidimensionally using the Brief Pain Inventory Interference Scale. We determine the compensating wealth variation for various levels of chronic pain, controlling for both time-invariant intra-pair effects (twin fixed effects) and a relevant set of time-varying covariates. We find that the mean valuations for the highest level of chronic pain (the value of pain and suffering) ranges from $5 million to $7 million. The range is due to variation in the functional form of the estimating equations.","PeriodicalId":410319,"journal":{"name":"Law & Society: Private Law - Torts eJournal","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132422094","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":"Regulating Through Recourse: Rediscovering Tort As Regulation","authors":"Douglas A. Kysar, Conor Dwyer Reynolds","doi":"10.2139/ssrn.3449770","DOIUrl":"https://doi.org/10.2139/ssrn.3449770","url":null,"abstract":"Most scholars hold that tort has little or no power to effectively or legitimately regulate complex risks such as environmental pollution. This consensus has spurred a broad skepticism about tort’s regulatory capacity within the judiciary, altering the contours of tort law itself. This Article challenges such skepticism by presenting a case study of farmers who used tort to manage the risk of air pollution from a nearby aluminum plant. The scope of their success suggests that features of tort adjudication such as equitable powers, discovery and procedure, settlement, and community have been overlooked by tort theorists. By reintegrating these features into theoretical visions of tort law, we can rediscover tort’s potential as a powerful tool within what might be called society’s ‘ecosystem’ of risk regulation.","PeriodicalId":410319,"journal":{"name":"Law & Society: Private Law - Torts eJournal","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129083944","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":"A Retrospective on the Woodhouse Report: The Vision, the Performance and the Future","authors":"Sir Geoffrey Palmer QC","doi":"10.2139/ssrn.3472722","DOIUrl":"https://doi.org/10.2139/ssrn.3472722","url":null,"abstract":"The following is a revised version of the second Woodhouse Memorial Lecture given at both the Victoria University of Wellington and the University of Auckland in September 2018. It traces the history and policy iterations of New Zealand's accident compensation scheme that flowed from the 1967 Woodhouse Report (the Report), a Royal Commission report chaired by Sir Owen Woodhouse. It discusses the features of the Report and the determination it showed to get rid of the common law action for damages for personal injury. It analyses the degree to which the Report was not followed in the journey it took through the political decision-making system. There is a critical analysis of the delivery of benefits, the administration of the scheme and its financing. The performance in accident prevention and rehabilitation is briefly covered. The method of settling disputes in the scheme has seen an unwelcome return to legalism. The lecture concludes with a strong plea to remove the anomalies created by the accident compensation scheme between the victims of accident who receive earnings related-benefit and those who are dealt with under the Social Security Act 2018 under which they receive flat rate benefits. The lecture concludes with some lessons for policymakers.","PeriodicalId":410319,"journal":{"name":"Law & Society: Private Law - Torts eJournal","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115165997","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":"A Judicial Teaching Point: The Lesson of the Late Justice John Paul Stevens in Sony V. Universal City Studios as a Response to Civil Lawfare","authors":"Mark W. Smith","doi":"10.2139/ssrn.3537379","DOIUrl":"https://doi.org/10.2139/ssrn.3537379","url":null,"abstract":"Gun-control proponents, unable to enact their favored gun control measures via democratic means, often engage in lawfare against gun manufacturers and distributors — i.e., warfare by means of litigation and other legal processes, designed to penalize financially such businesses with a view toward putting them out of business altogether. Courts presiding over these cases should take a lesson from the late Supreme Court Justice John Paul Stevens. He authored the 1984 decision in Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 ( the “Betamax” case), in which movie production companies tried to use the courts — and not the legislature — to outlaw the selling of video cassette records, or VCRs, on the grounds that they could be used by criminals to infringe upon the studios’ copyrights. The Supreme Court’s ruling in that case, which refused to hold sellers of VCRs liable for the harms caused by third-party misuse of the product, is equally applicable to manufacturers of firearms that some seek to ban. Just as VCRs were widely and predominantly used for legitimate, unobjectionable purposes in the 1980s and 1990s, the same can be said for firearms today. <br><br>Justice Stevens, who decades later advocated for the repeal of the Second Amendment, sat in the same seat as today’s judges before whom warfare against the gun industry is currently being waged. But when the studios sought to accomplish through the courts what they could not accomplish through the legislature (the imposition of financially devasting legal liability arising from the conduct of unaffiliated third parties), Justice Stevens and our highest court said, “No.” <br><br>In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (“PLCAA”), which was inspired by the same sentiment implicit in the Justice Stevens’s Betamax ruling, i.e., the desire to stem the tide of liability suits against gunmakers and sellers for the criminal misuse of guns by individuals over whom the gun manufacturers had no control or relationship. Recently, litigants have tried (with some success) to exploit loopholes in the PLCAA. Such lawsuits are not necessarily meant to win in court. They are often motivated partially, if not entirely, by political desires to rid American society of gun manufacturers by intentionally and effectively driving them out of business due to the onerous cost of civil lawfare. If successful, the gun control lobby will have succeeded in accomplishing through the courts something that they were unable to accomplish in the legislative or political sphere: eliminating the manufacture and sale of firearms in the United States.<br><br>The Betamax decision represents an important — but, until now, mostly overlooked — judicial teaching moment. Justice Stevens’ reasoning and the language and purpose of the PLCAA should be considered by today’s courts when deciding lawsuits against the gun industry for harms caused by criminal third parties.<br>","PeriodicalId":410319,"journal":{"name":"Law & Society: Private Law - Torts eJournal","volume":"101 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134498762","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":"The Legal Extent of Malpractice in Romania. A Glance","authors":"Crina-Maria Hristodorof","doi":"10.2139/ssrn.3434080","DOIUrl":"https://doi.org/10.2139/ssrn.3434080","url":null,"abstract":"This article aims to focus on the phenomenon of malpractice with its causes, conditions and causality, as well as how it is regulated from the legal perspective. The aim is to take into account the causes that can lead to errors occurring in the exercise of a profession, to deepen the idea of accountability of the professional causing harm, to establish possible solutions for avoiding malpractice events. In the first instance, the concept of malpractice was analyzed and subsequently, following the documentary analysis, taking into consideration that the casuistic and specialized literature are focused on the medical field, this route was taken by focusing on this sphere of interest. It is a reality that, not long ago, the malpractice lawsuits were practically non-existent, but with the passage of time their number has most definitely increased. Thus, a first question to which I wanted to find an answer is: What are the underlying causes of this phenomenon? The specialized literature refers especially to the medical field, but not so much in terms of how physicians are exercising their profession, but, rather being focused on the legal and judicial aspects of the matter, namely the ways of recovering the damages, and how the guilty professional shall be held accountable for his harmful actions.","PeriodicalId":410319,"journal":{"name":"Law & Society: Private Law - Torts eJournal","volume":"26 1-4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131089263","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":"Should Law Subsidize Driving?","authors":"Gregory H. Shill","doi":"10.2139/SSRN.3345366","DOIUrl":"https://doi.org/10.2139/SSRN.3345366","url":null,"abstract":"A century ago, captains of industry and their allies in government launched a social experiment in urban America: the abandonment of mass transit in favor of a new personal technology, the private automobile. Decades of investment in this shift have created a car-centric landscape with Dickensian consequences. \u0000 \u0000In the United States, motor vehicles are now the leading killer of children and the top producer of greenhouse gases. Each year, they rack up trillions of dollars in direct and indirect costs and claim nearly 100,000 American lives via crashes and pollution, with the most vulnerable paying a disproportionate price. The appeal of the car’s convenience and the failure to effectively manage it has created a public health catastrophe. \u0000 \u0000Many of the automobile’s social costs originate in individual preferences, but an overlooked amount is encouraged—indeed enforced—by law. Yes, the United States is car-dependent by choice. But it is also car-dependent by law. \u0000 \u0000This Article conceptualizes this problem and offers a way out. It begins by identifying a submerged, disconnected system of rules that furnish indirect yet extravagant subsidies to driving. These subsidies lower the price of driving by comprehensively reassigning its costs to non-drivers and society at large. They are found in every field of law, from traffic law to land use regulation to tax, tort, and environmental law. Law’s role is not primary, and at times it is even constructive. But where it is destructive, it is uniquely so: Law not only inflames a public health crisis but legitimizes it, ensuring the continuing dominance of the car. \u0000 \u0000The Article urges a reorientation of law away from this system of automobile supremacy in favor of consensus social priorities, such as health, prosperity, and equity.","PeriodicalId":410319,"journal":{"name":"Law & Society: Private Law - Torts eJournal","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130651174","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":"Allocating Liability Among Multiple Responsible Causes: Principles, Rhetoric and Power","authors":"R. W. Wright","doi":"10.5040/9781509917525.ch-002","DOIUrl":"https://doi.org/10.5040/9781509917525.ch-002","url":null,"abstract":"In Part II of this paper, I discuss the principles underlying just allocation of liability among the multiple responsible causes of an indivisible injury. I argue that those principles support either (1) the standard method adopted by almost all courts, according to which the plaintiff's claim for compensation is reduced by her percentage of comparative responsibility if she was contributorily negligent, those who wrongfully contributed to the plaintiff's injury are each held fully (solidarily) liable for the plaintiff's possibly reduced claim, and the wrongdoers who pay the plaintiff are able to maintain contribution actions against the other wrongdoers based on their comparative responsibility, or (2) a modification of the standard method which would allow the wrongdoers who pay the plaintiff to have a contributorily negligent plaintiff share in bearing the portion of damages that are uncollectible from other wrongdoers. The various proportionate liability rules adopted by the legislatures in many states (but not the federal government) in the United States and (for injuries other than to the plaintiff's person) by all the Australian states are neither justifiable nor fair. \u0000 \u0000In Part III, I explain and criticize the rhetorical arguments used by the defense advocates to attempt to convince judges (unsuccessfully) and legislators (successfully) that replacing solidary liability with proportionate liability is necessary to be consistent with the common law and allocation of liability consistent with each person's individual responsibility. \u0000 \u0000In Part IV, I describe (1) the primary role played by recurrent cycles of \"soft\" and \"hard\" liability insurance markets, made possible by lack of proper regulation of the insurance industry, in creating recurrent liability insurance crises, (2) the successful effort of the insurance industry and other defense interests to portray tort liability rather than the flaws in the liability insurance market as the cause of the recurrent liability insurance crises in order to promote \"tort reform\" while avoiding needed regulation of the insurance industry, and (3) the recurrent failure of the enacted \"tort reforms\" to provide the promised reduction or moderation in liability insurance premiums.","PeriodicalId":410319,"journal":{"name":"Law & Society: Private Law - Torts eJournal","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121078496","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}