Pub Date : 2008-11-01DOI: 10.4337/9780857930545.00011
Gideon Parchomovsky, Alex Stein
This Essay exposes and analyzes a hitherto overlooked cost of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts' reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation.
{"title":"Torts and Innovation","authors":"Gideon Parchomovsky, Alex Stein","doi":"10.4337/9780857930545.00011","DOIUrl":"https://doi.org/10.4337/9780857930545.00011","url":null,"abstract":"This Essay exposes and analyzes a hitherto overlooked cost of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts' reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123904410","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}
Pub Date : 2008-10-20DOI: 10.1017/CBO9780511780097.011
Richard Craswell
The existing literature on willful breach has not been able to define what should count as "willful." I argue here that any definition we adopt has implications for just how high damages should be raised in those cases where a breach qualifies as willful. As a result, both of these issues -- the definition of "willful," and the measure of damages for willful breach -- need to be considered simultaneously. Specifically, if a definition of "willful" excludes all breachers who behaved efficiently, then in theory we can raise the penalty on the remaining inefficient breachers to any arbitrarily high level ("throw the book at them"). But if, instead, a given definition of willful would catch even some efficient breachers in its net, the damages assessed against willful breachers should be more limited. In that case, damages for willful breach might still justifiably be raised, but they should be raised only to the level that is economically efficient.
{"title":"When is a Willful Breach 'Willful'? The Link Between Definitions and Damages","authors":"Richard Craswell","doi":"10.1017/CBO9780511780097.011","DOIUrl":"https://doi.org/10.1017/CBO9780511780097.011","url":null,"abstract":"The existing literature on willful breach has not been able to define what should count as \"willful.\" I argue here that any definition we adopt has implications for just how high damages should be raised in those cases where a breach qualifies as willful. As a result, both of these issues -- the definition of \"willful,\" and the measure of damages for willful breach -- need to be considered simultaneously. Specifically, if a definition of \"willful\" excludes all breachers who behaved efficiently, then in theory we can raise the penalty on the remaining inefficient breachers to any arbitrarily high level (\"throw the book at them\"). But if, instead, a given definition of willful would catch even some efficient breachers in its net, the damages assessed against willful breachers should be more limited. In that case, damages for willful breach might still justifiably be raised, but they should be raised only to the level that is economically efficient.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122872608","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}
The genesis of this article lies in a simple realization I had one day while driving behind a work vehicle in Atlanta, Georgia. The truck in question was pulling a wood chipper, a device which takes large tree branches, runs them through rapidly turning sharpened steel blades, and chips them into pieces small enough to be used as mulch. Obviously, any worker's body part accidentally sucked into this maelstrom would undergo a similar fate. Thus, the chipper had a warning label urging caution and instructing workers to avoid putting their hands into the device while it was operating. However, the warning was in English and only English. I realized that day there was a very good chance that some of the workers operating the chipper could not read English. There has been a surprisingly small number of cases arguing that, where a warning label is required, an English-only warning label is sufficient. In this article I argue that warning labels should be in both English and Spanish at least where (i) the product is sold or used in a geographic area of dense Hispanic population; (ii) the product has been marketed toward Hispanics, such as on Spanish-language cable television or (iii) the product is used in an industry with a large percentage of Hispanic workers, such as the migrant farm industry.
{"title":"Peligro!: Failure to Warn of a Product's Inherent Risk in Spanish Should Constitute a Product Defect","authors":"Keith E. Sealing","doi":"10.2139/ssrn.1260010","DOIUrl":"https://doi.org/10.2139/ssrn.1260010","url":null,"abstract":"The genesis of this article lies in a simple realization I had one day while driving behind a work vehicle in Atlanta, Georgia. The truck in question was pulling a wood chipper, a device which takes large tree branches, runs them through rapidly turning sharpened steel blades, and chips them into pieces small enough to be used as mulch. Obviously, any worker's body part accidentally sucked into this maelstrom would undergo a similar fate. Thus, the chipper had a warning label urging caution and instructing workers to avoid putting their hands into the device while it was operating. However, the warning was in English and only English. I realized that day there was a very good chance that some of the workers operating the chipper could not read English. There has been a surprisingly small number of cases arguing that, where a warning label is required, an English-only warning label is sufficient. In this article I argue that warning labels should be in both English and Spanish at least where (i) the product is sold or used in a geographic area of dense Hispanic population; (ii) the product has been marketed toward Hispanics, such as on Spanish-language cable television or (iii) the product is used in an industry with a large percentage of Hispanic workers, such as the migrant farm industry.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127875663","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}
Leveraged Employee Stock Ownership Plan ("ESOP") transactions originated in the 1950s, yet there are still unresolved valuation issues that arise from a complex set of operating expenses, financing structures and contingent claims that are unique to leveraged ESOPs. Although complex, these transactions provide no exceptions to general financial economic principles and can be evaluated using existing standards and methodologies. Existing valuation practices have supported transactions executed at stock prices that are expected to decline, sometimes dramatically, immediately after the transaction is closed. Such a situation, in which the current stock price exceeds an expected future price, is illogical and contrary to financial economic valuation models and theories. When this occurs, either the pre-transaction price or the expected post-transaction price (or both) are wrong.
{"title":"ESOP Debt and Post-Transaction Value","authors":"Kevin Kreitzman","doi":"10.2139/ssrn.1189882","DOIUrl":"https://doi.org/10.2139/ssrn.1189882","url":null,"abstract":"Leveraged Employee Stock Ownership Plan (\"ESOP\") transactions originated in the 1950s, yet there are still unresolved valuation issues that arise from a complex set of operating expenses, financing structures and contingent claims that are unique to leveraged ESOPs. Although complex, these transactions provide no exceptions to general financial economic principles and can be evaluated using existing standards and methodologies. Existing valuation practices have supported transactions executed at stock prices that are expected to decline, sometimes dramatically, immediately after the transaction is closed. Such a situation, in which the current stock price exceeds an expected future price, is illogical and contrary to financial economic valuation models and theories. When this occurs, either the pre-transaction price or the expected post-transaction price (or both) are wrong.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130741262","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}
This Article examines the influence of nondurable precaution technologies on the expansion of tort awards. We provide four contributions to the literature. First, we present a general, formal model on durable and non-durable precaution technology that focuses on memory costs. Second, because liability exposure creates interference, we argue that tort law perpetuates the expansion of awards. Third, because plaintiffs do not consider the social costs of interference effects, private litigation induces socially excessive suits. Fourth, while new harm-reducing technologies likely increase accident rates, such technologies also raise the ratio of trial costs to harm, leaving undetermined the overall effect of new technologies on the rate of litigation.
{"title":"Technology & Torts: A Theory of Memory Costs, Nondurable Precautions and Interference Effects","authors":"B. Depoorter, J. D. De Mot","doi":"10.2139/ssrn.1162106","DOIUrl":"https://doi.org/10.2139/ssrn.1162106","url":null,"abstract":"This Article examines the influence of nondurable precaution technologies on the expansion of tort awards. We provide four contributions to the literature. First, we present a general, formal model on durable and non-durable precaution technology that focuses on memory costs. Second, because liability exposure creates interference, we argue that tort law perpetuates the expansion of awards. Third, because plaintiffs do not consider the social costs of interference effects, private litigation induces socially excessive suits. Fourth, while new harm-reducing technologies likely increase accident rates, such technologies also raise the ratio of trial costs to harm, leaving undetermined the overall effect of new technologies on the rate of litigation.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"135 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131433146","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}
This is my statement to the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law and the Subcommittee on Constitution, Civil Rights, and Civil Liberties of the Committee on the Judiciary of the United States House of Representatives, April 1, 2008, regarding proposals to expand the September 11 Victim Compensation Fund of 2001. The September 11 Victim Compensation Fund of 2001 (VCF) was a uniquely successful short-term administrative program to compensate victims of the September 11 terrorist attacks while limiting litigation against innocent third parties who had also been victimized by the attacks. Unfortunately, The James Zadroga 9/11 Health and Compensation Act of 2007 (H.R. 3543) in its current form fails to protect innocent third parties from unfair litigation, does not have the advantages that made the VCF successful, and magnifies the disadvantages and fairness problems of the VCF.
{"title":"Testimony to Joint Hearing on Paying with Their Lives: The Status of Compensation for 9/11 Health Effects","authors":"Theodore H. Frank","doi":"10.2139/SSRN.1115025","DOIUrl":"https://doi.org/10.2139/SSRN.1115025","url":null,"abstract":"This is my statement to the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law and the Subcommittee on Constitution, Civil Rights, and Civil Liberties of the Committee on the Judiciary of the United States House of Representatives, April 1, 2008, regarding proposals to expand the September 11 Victim Compensation Fund of 2001. The September 11 Victim Compensation Fund of 2001 (VCF) was a uniquely successful short-term administrative program to compensate victims of the September 11 terrorist attacks while limiting litigation against innocent third parties who had also been victimized by the attacks. Unfortunately, The James Zadroga 9/11 Health and Compensation Act of 2007 (H.R. 3543) in its current form fails to protect innocent third parties from unfair litigation, does not have the advantages that made the VCF successful, and magnifies the disadvantages and fairness problems of the VCF.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124378784","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}
While much has been written about how individual rules of contract law impact parties' sharing of information, we do not yet have a general theory of the legal regulation of information in contractual relationships. In his recent article, Taking Information Seriously: Misrepresentation and Nondisclosure in Contract Law and Elsewhere, 92 Va. L. Rev. 565 (2006), Richard Craswell starts in on the project of providing one. This essay critically examines Craswell's arguments and discusses what such a general theory should look like. One of my central theses is that such a theory should keep apart two regulatory approaches: the use of scientific methods to study the informational effects of individual transaction elements, and interpretive approaches, which take as their object the meaning and veracity of such elements. The essay also discusses legal liability for implicit misrepresentations and the role of everyday interpretive norms in the law of misrepresentation in general. The essay first summarizes what I take to be Craswell's central claims about information sharing, summarized by his rejection of the quantized view of information. I then discuss the similarities and differences between the two contract doctrines that are most obviously designed to regulate information sharing: nondisclosure and misrepresentation. This lays the groundwork for a detailed analysis of Craswell's claims about the law of misrepresentation. Craswell uses Grice's theory of conversational implicature to explain of how separate pieces of information can be bundled together in a single speech act. I argue that Craswell wrongly assumes (contrary to Grice's theory) that it is difficult to divorce implicit misrepresentations from the potentially beneficial speech acts that contain them. This error leads Craswell to overstate the similarities between misrepresentation and nondisclosure. The last part of the essay distinguishes two regulatory approaches, which I label causal-predictive and interpretive. Causal-predictive regulation, which Craswell advocates broader use of, employs the methods of behavioral economics to mandate how transactions should be structured. The law of misrepresentation, I argue, uses a fundamentally different method, one that focuses not on causation but on meaning and veracity. I make some general observations about the proper scope of these different regulatory approaches, their relative merits, and the prospects for combining them in the ways Craswell recommends.
虽然关于合同法的个别规则如何影响当事人的信息共享已经写了很多，但我们还没有一个关于合同关系中信息的法律监管的一般理论。在他最近的文章《认真对待信息:合同法和其他地方的虚假陈述和不披露，92 Va. L. Rev. 565(2006)》中，Richard Craswell开始了提供一个项目。本文批判性地考察了克拉斯韦尔的论点，并讨论了这样一个一般理论应该是什么样子。我的中心论点之一是，这种理论应该区分两种监管方法:使用科学方法研究单个交易要素的信息效应，以及以这些要素的意义和准确性为对象的解释方法。本文还讨论了隐性虚假陈述的法律责任以及日常解释规范在一般虚假陈述法中的作用。这篇文章首先总结了我认为是Craswell关于信息共享的核心主张，总结起来就是他对信息量化观点的拒绝。然后，我讨论了两种契约理论之间的异同，这两种契约理论显然是为了规范信息共享而设计的:不披露和虚假陈述。这为详细分析克拉斯韦尔关于失实陈述法的主张奠定了基础。Craswell使用Grice的会话含义理论来解释如何在单个言语行为中捆绑不同的信息片段。我认为，Craswell错误地假设(与Grice的理论相反)，很难将隐含的虚假陈述与包含它们的潜在有益的言语行为分离开来。这个错误导致Craswell夸大了虚假陈述和不披露之间的相似之处。本文的最后一部分区分了两种调节方法，我将其标记为因果预测和解释。Craswell提倡更广泛地使用因果预测监管，它采用行为经济学的方法来规定交易应该如何组织。我认为，虚假陈述法使用了一种完全不同的方法，它关注的不是因果关系，而是意义和真实性。我对这些不同监管方法的适当范围、它们的相对优点以及以Craswell推荐的方式将它们结合起来的前景进行了一些一般性的观察。
{"title":"Regulating Information in Contractual Relationships","authors":"Gregory Klass","doi":"10.2139/SSRN.1123640","DOIUrl":"https://doi.org/10.2139/SSRN.1123640","url":null,"abstract":"While much has been written about how individual rules of contract law impact parties' sharing of information, we do not yet have a general theory of the legal regulation of information in contractual relationships. In his recent article, Taking Information Seriously: Misrepresentation and Nondisclosure in Contract Law and Elsewhere, 92 Va. L. Rev. 565 (2006), Richard Craswell starts in on the project of providing one. This essay critically examines Craswell's arguments and discusses what such a general theory should look like. One of my central theses is that such a theory should keep apart two regulatory approaches: the use of scientific methods to study the informational effects of individual transaction elements, and interpretive approaches, which take as their object the meaning and veracity of such elements. The essay also discusses legal liability for implicit misrepresentations and the role of everyday interpretive norms in the law of misrepresentation in general. The essay first summarizes what I take to be Craswell's central claims about information sharing, summarized by his rejection of the quantized view of information. I then discuss the similarities and differences between the two contract doctrines that are most obviously designed to regulate information sharing: nondisclosure and misrepresentation. This lays the groundwork for a detailed analysis of Craswell's claims about the law of misrepresentation. Craswell uses Grice's theory of conversational implicature to explain of how separate pieces of information can be bundled together in a single speech act. I argue that Craswell wrongly assumes (contrary to Grice's theory) that it is difficult to divorce implicit misrepresentations from the potentially beneficial speech acts that contain them. This error leads Craswell to overstate the similarities between misrepresentation and nondisclosure. The last part of the essay distinguishes two regulatory approaches, which I label causal-predictive and interpretive. Causal-predictive regulation, which Craswell advocates broader use of, employs the methods of behavioral economics to mandate how transactions should be structured. The law of misrepresentation, I argue, uses a fundamentally different method, one that focuses not on causation but on meaning and veracity. I make some general observations about the proper scope of these different regulatory approaches, their relative merits, and the prospects for combining them in the ways Craswell recommends.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"1189 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121068776","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}
Sexual abuse of children by Roman Catholic clergy is perhaps the greatest scandal in the history of the Catholic Church in the United States. On September 7, 2007, the Roman Catholic Diocese of San Diego, California, announced a $198 million settlement with 144 claimants. In mid July, the Archdiocese of Los Angeles announced a $660 million settlement with 508 claimants, following a November, 2006 settlement with 86 claimants for an additional $114 million. Five prominent Catholic dioceses in the United States have filed for bankruptcy since 2004, facing (and, perhaps, seeking to avoid) enormous liability for tort damages caused by clergy sexual abuse. There is a burgeoning law review literature examining many different dimensions of the situation. However, no article, thus far, has focused on the labor and employment ramifications of the crisis. In this article, I study the five diocesan bankruptcy cases. I also discuss the status of labor and employment relations with the Church as employer, in light of secular case law, canon law, and Church teaching. I then present an overview of labor and employment relations consequences of diocesan bankruptcy, including, paradoxically, the possible resurgence of unionization and collective bargaining by, inter alia, school teachers in primary and secondary Catholic schools.
{"title":"Some Reflections on Labor and Employment Ramifications of Diocesan Bankruptcy Filings","authors":"D. L. Gregory","doi":"10.2139/ssrn.1108231","DOIUrl":"https://doi.org/10.2139/ssrn.1108231","url":null,"abstract":"Sexual abuse of children by Roman Catholic clergy is perhaps the greatest scandal in the history of the Catholic Church in the United States. On September 7, 2007, the Roman Catholic Diocese of San Diego, California, announced a $198 million settlement with 144 claimants. In mid July, the Archdiocese of Los Angeles announced a $660 million settlement with 508 claimants, following a November, 2006 settlement with 86 claimants for an additional $114 million. Five prominent Catholic dioceses in the United States have filed for bankruptcy since 2004, facing (and, perhaps, seeking to avoid) enormous liability for tort damages caused by clergy sexual abuse. There is a burgeoning law review literature examining many different dimensions of the situation. However, no article, thus far, has focused on the labor and employment ramifications of the crisis. In this article, I study the five diocesan bankruptcy cases. I also discuss the status of labor and employment relations with the Church as employer, in light of secular case law, canon law, and Church teaching. I then present an overview of labor and employment relations consequences of diocesan bankruptcy, including, paradoxically, the possible resurgence of unionization and collective bargaining by, inter alia, school teachers in primary and secondary Catholic schools.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130302780","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}
In The Law and Ethics of Restitution (LER) I offered an account of the foundations of (significant parts of) the American law of restitution. I argued that this body of law can, and therefore should, be read as a contextual application of our commitments to autonomy, utility, and community in various situations of benefit-based liability or benefit-based recovery. LER shows that, because different restitutionary doctrines involve differing categories of interpersonal relationships, they invoke different interpretations and different balances of these values. And yet, maybe unsurprisingly, LER also demonstrates, at least at a high level of generality, how these core liberal values serve (or should serve) as the normative underpinnings of the law of restitution in its entirety. Since LER's publication in 2004, a number of review essays and book reviews have appeared. Reviewers have suggested interesting insights and several intriguing critiques. I appreciate these challenges, and have addressed them in this essay to rethink and, in some cases, defend some of LER's main propositions more successfully. I am obviously unable to cover all the points raised in these reviews or do justice to all their subtleties, and have confined my discussion to several recurrent themes focusing on LER's jurisprudential premises. These premises are legal realist, at least according to my reconstruction of this school's lessons. Some of the critics argue that LER fails because it is too infused with realism; others complain that LER is not loyal enough to the realist legacy. In this essay, I discuss both sides. Before embarking in a dialogue with my kind critics, however, I outline my understanding of legal realism, explain the ways in which LER is indeed an exercise in legal realism, and provide a summary of LER's analysis of the law of mistakes, on which many of my reviewers have focused.
{"title":"Restitution's Realism","authors":"Hanoch Dagan","doi":"10.2139/ssrn.1104384","DOIUrl":"https://doi.org/10.2139/ssrn.1104384","url":null,"abstract":"In The Law and Ethics of Restitution (LER) I offered an account of the foundations of (significant parts of) the American law of restitution. I argued that this body of law can, and therefore should, be read as a contextual application of our commitments to autonomy, utility, and community in various situations of benefit-based liability or benefit-based recovery. LER shows that, because different restitutionary doctrines involve differing categories of interpersonal relationships, they invoke different interpretations and different balances of these values. And yet, maybe unsurprisingly, LER also demonstrates, at least at a high level of generality, how these core liberal values serve (or should serve) as the normative underpinnings of the law of restitution in its entirety. Since LER's publication in 2004, a number of review essays and book reviews have appeared. Reviewers have suggested interesting insights and several intriguing critiques. I appreciate these challenges, and have addressed them in this essay to rethink and, in some cases, defend some of LER's main propositions more successfully. I am obviously unable to cover all the points raised in these reviews or do justice to all their subtleties, and have confined my discussion to several recurrent themes focusing on LER's jurisprudential premises. These premises are legal realist, at least according to my reconstruction of this school's lessons. Some of the critics argue that LER fails because it is too infused with realism; others complain that LER is not loyal enough to the realist legacy. In this essay, I discuss both sides. Before embarking in a dialogue with my kind critics, however, I outline my understanding of legal realism, explain the ways in which LER is indeed an exercise in legal realism, and provide a summary of LER's analysis of the law of mistakes, on which many of my reviewers have focused.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116063546","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}
In honour of Horton Rogers, as the holder of the rotational G.J. Wiarda chair at Utrecht University, a symposium was held on 13 June 2007 concerning the right of third parties to compensation in cases of injury – one of the most provoking themes in tort law and the law of damages. The key question was to what extent relatives and the employer of an injured victim should be compensated for their pecuniary losses and the loss of earnings caused by the primary victim’s injuries. In three contributions an account of the state of the law was provided with regard to three European jurisdictions (English law, German law and Dutch law) and the so-called ‘Principles on European Tort Law’ and ‘Principles on European Law on Liability for Damages’. These contributions show that all three national law systems have rights for relatives and employers to recover, in some form, but with substantial differences between the (rules governing) the amount of compensation and as to the nature of these rights. Both sets of European principles demonstrate great differences as well. In each contribution further reflections are given on what would be the better position to take. These three contributions are brought together in this article in which also the state of the law is critically discussed.
{"title":"Third Party Losses in a Comparative Perspective: Three Short Lectures in Honour of W.H.V. Rogers","authors":"C. van Dam, E. Engelhard, I. Giesen","doi":"10.18352/ulr.48","DOIUrl":"https://doi.org/10.18352/ulr.48","url":null,"abstract":"In honour of Horton Rogers, as the holder of the rotational G.J. Wiarda chair at Utrecht University, a symposium was held on 13 June 2007 concerning the right of third parties to compensation in cases of injury – one of the most provoking themes in tort law and the law of damages. The key question was to what extent relatives and the employer of an injured victim should be compensated for their pecuniary losses and the loss of earnings caused by the primary victim’s injuries. In three contributions an account of the state of the law was provided with regard to three European jurisdictions (English law, German law and Dutch law) and the so-called ‘Principles on European Tort Law’ and ‘Principles on European Law on Liability for Damages’. These contributions show that all three national law systems have rights for relatives and employers to recover, in some form, but with substantial differences between the (rules governing) the amount of compensation and as to the nature of these rights. Both sets of European principles demonstrate great differences as well. In each contribution further reflections are given on what would be the better position to take. These three contributions are brought together in this article in which also the state of the law is critically discussed.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121965730","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}
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