首页 > 最新文献

Journal of Tort Law最新文献

英文 中文
Re-imagining the Dignitary Torts 重新构想权贵侵权
Q3 Social Sciences Pub Date : 2019-09-08 DOI: 10.2139/ssrn.3450107
S. Sugarman, Caitlin Boucher
Abstract In the article, we make three claims. First, we argue that a large number of what are traditionally seen as separate torts are, at their core, all about affronts to the dignity of the victim. These include offensive battery, assault, false imprisonment, intentional infliction of emotional distress, defamation, invasion of privacy, some nuisances, and abuse of process (malicious prosecution). These torts do not involve direct physical harm but, rather, emotional distress from having your dignity attacked. Second, we argue that as these torts have developed inside of their own doctrinal silos, there are important differences among the laws governing them. Third, we argue that these differences are not justified and that it would be better to create a consistent tort approach to dignitary harm: tort recovery should lie for injuries resulting from wrongful conduct that is highly offensive and causes more than minor harm. This, it turns out, is the standard that currently applies in a majority of jurisdictions for privacy invasions. If more widely adopted, this standard would, for example, far more easily allow recovery for nasty verbal sexual (or other) harassment, since intentional infliction of emotional distress currently requires a much stronger showing. At the same time, it would preclude recovery for minor physical touchings that technically now qualify as offensive battery. We think this achieves the balance much better.
在本文中,我们提出了三点主张。首先,我们认为,大量传统上被视为独立的侵权行为,其核心都是对受害者尊严的侮辱。这些行为包括攻击性殴打、人身攻击、非法监禁、故意造成情绪困扰、诽谤、侵犯隐私、一些滋扰和滥用程序(恶意起诉)。这些侵权行为不涉及直接的身体伤害,而是由于你的尊严受到攻击而造成的精神困扰。其次,我们认为,由于这些侵权行为是在各自的理论框架内发展起来的,因此管辖它们的法律之间存在重要差异。第三,我们认为,这些差异是不合理的,最好是建立一个一致的侵权方法来处理尊严损害:侵权赔偿应该针对由高度冒犯性的不法行为造成的伤害,并且造成的损害超过轻微伤害。事实证明,这是目前在大多数司法管辖区适用于隐私侵犯的标准。例如,如果得到更广泛的采用,这一标准将更容易为肮脏的口头性骚扰(或其他)骚扰提供赔偿,因为目前故意造成情绪困扰需要更强有力的表现。与此同时,它将排除轻微的身体接触的赔偿,从技术上讲,现在可以算作攻击性殴打。我们认为这样可以更好地达到平衡。
{"title":"Re-imagining the Dignitary Torts","authors":"S. Sugarman, Caitlin Boucher","doi":"10.2139/ssrn.3450107","DOIUrl":"https://doi.org/10.2139/ssrn.3450107","url":null,"abstract":"Abstract In the article, we make three claims. First, we argue that a large number of what are traditionally seen as separate torts are, at their core, all about affronts to the dignity of the victim. These include offensive battery, assault, false imprisonment, intentional infliction of emotional distress, defamation, invasion of privacy, some nuisances, and abuse of process (malicious prosecution). These torts do not involve direct physical harm but, rather, emotional distress from having your dignity attacked. Second, we argue that as these torts have developed inside of their own doctrinal silos, there are important differences among the laws governing them. Third, we argue that these differences are not justified and that it would be better to create a consistent tort approach to dignitary harm: tort recovery should lie for injuries resulting from wrongful conduct that is highly offensive and causes more than minor harm. This, it turns out, is the standard that currently applies in a majority of jurisdictions for privacy invasions. If more widely adopted, this standard would, for example, far more easily allow recovery for nasty verbal sexual (or other) harassment, since intentional infliction of emotional distress currently requires a much stronger showing. At the same time, it would preclude recovery for minor physical touchings that technically now qualify as offensive battery. We think this achieves the balance much better.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"14 1","pages":"101 - 192"},"PeriodicalIF":0.0,"publicationDate":"2019-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47952553","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}
引用次数: 1
Frontmatter
Q3 Social Sciences Pub Date : 2019-06-08 DOI: 10.1515/jtl-2019-frontmatter1
{"title":"Frontmatter","authors":"","doi":"10.1515/jtl-2019-frontmatter1","DOIUrl":"https://doi.org/10.1515/jtl-2019-frontmatter1","url":null,"abstract":"","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2019-frontmatter1","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43705890","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}
引用次数: 0
“But Vestiges Remain”: The Anomaly of Sovereign Immunity for Public Hospitals “但残留”:公立医院主权豁免的反常现象
Q3 Social Sciences Pub Date : 2019-05-27 DOI: 10.1515/jtl-2019-0007
J. White
Abstract Public hospitals are critical institutions in the American healthcare delivery system. Yet because they are publicly owned, they sit apart from the rest of the medical sector, enjoying in some instances immunities from suit or significant limitations on damage recovery due to their public status. In today’s environment where states have legislated carefully balanced systems regulating medical malpractice liability, the prospect of immunity provides public hospitals and their employees, additional, in many cases more stringent protection from suit. This aspect of public hospital immunity has been obscured by the variety of systems from state to state governing immunity of public entities and their employees. The attention paid the subject appears to be in inverse relationship to the significance of public hospitals in our health care system. Public hospitals provide care for large segments of the population and are particularly important providers of care for poor, urban, and un- or underinsured citizens. They are centers offering specialized care and around which specialized care providers are organized in many communities. Public hospitals are particularly associated with transplant and burn centers. In addition, they are usually the highest-level trauma care centers in the communities they support. Much of what makes public hospitals critical to their communities relates to their propensity to be centers of education and training. They are often associated with medical schools, offering clinical training opportunities to medical students and are either partners with medical schools in offering graduate medical education or sponsors of such education independently.
摘要公立医院是美国医疗服务体系中的重要机构。然而,由于它们是公有的,它们与医疗部门的其他部门不同,在某些情况下享有诉讼豁免权,或因其公共身份而对损害赔偿受到重大限制。在今天的环境中,各州已经制定了严格平衡的医疗事故责任监管制度,豁免权的前景为公立医院及其员工提供了额外的保护,在许多情况下,更严格的保护。公立医院豁免的这一方面被各州管理公共实体及其雇员豁免的各种制度所掩盖。对这一主题的关注似乎与公立医院在我们医疗保健系统中的重要性成反比。公立医院为大部分人口提供护理,是为贫困、城市和未参保或参保不足的公民提供护理的特别重要的提供者。它们是提供专业护理的中心,许多社区都围绕着这些中心组织了专业护理提供者。公立医院尤其与移植和烧伤中心相关。此外,他们通常是他们所支持的社区中最高级别的创伤护理中心。公立医院对社区至关重要,这在很大程度上与它们成为教育和培训中心的倾向有关。他们通常与医学院有联系,为医学生提供临床培训机会,要么与医学院合作提供研究生医学教育,要么独立赞助此类教育。
{"title":"“But Vestiges Remain”: The Anomaly of Sovereign Immunity for Public Hospitals","authors":"J. White","doi":"10.1515/jtl-2019-0007","DOIUrl":"https://doi.org/10.1515/jtl-2019-0007","url":null,"abstract":"Abstract Public hospitals are critical institutions in the American healthcare delivery system. Yet because they are publicly owned, they sit apart from the rest of the medical sector, enjoying in some instances immunities from suit or significant limitations on damage recovery due to their public status. In today’s environment where states have legislated carefully balanced systems regulating medical malpractice liability, the prospect of immunity provides public hospitals and their employees, additional, in many cases more stringent protection from suit. This aspect of public hospital immunity has been obscured by the variety of systems from state to state governing immunity of public entities and their employees. The attention paid the subject appears to be in inverse relationship to the significance of public hospitals in our health care system. Public hospitals provide care for large segments of the population and are particularly important providers of care for poor, urban, and un- or underinsured citizens. They are centers offering specialized care and around which specialized care providers are organized in many communities. Public hospitals are particularly associated with transplant and burn centers. In addition, they are usually the highest-level trauma care centers in the communities they support. Much of what makes public hospitals critical to their communities relates to their propensity to be centers of education and training. They are often associated with medical schools, offering clinical training opportunities to medical students and are either partners with medical schools in offering graduate medical education or sponsors of such education independently.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"12 1","pages":"33 - 79"},"PeriodicalIF":0.0,"publicationDate":"2019-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2019-0007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47597521","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}
引用次数: 0
Foreword: Tort Law and Health Law: Intersections and Opportunities 前言:侵权法与健康法:交集与机遇
Q3 Social Sciences Pub Date : 2019-05-27 DOI: 10.1515/JTL-2019-0005
Stacey A. Tovino
The influence of tort law on some basic aspects of health law is well known. For example, a patient may sue a physician in negligence when the physician deviates from the standard of care with respect to the performance of a medical treatment, surgical procedure, or diagnostic examination. By further example, the battery cause of action may be appropriate when a physician performs a medical treatment or surgical procedure without any consent from the patient. Or, a patient may allege negligence when a physician obtains technical consent to treatment but fails to provide information sufficient to enable the patient to give informed consent. At the Association of American Law Schools (AALS) Annual Meeting held on January 4, 2019, in New Orleans, Louisiana, the AALS Section on Torts and Compensation Systems convened a panel featuring four distinguished speakers who examined other, less obvious ties and relationships between the fields of tort law and health law. Mark Rothstein, the Herbert F. Boehl Chair of Law and Medicine and the Founding Director of the Institute for Bioethics, Health Policy and Law at the University of Louisville School of Medicine, opened the panel. Professor Rothstein examined one of the most controversial and misunderstood issues in clinical genetics; that is, whether a physician has a duty in tort to warn a patient’s genetically at-risk relatives. Arguing that the physician’s patient, not the physician, is in the best ethical and legal position to issue warnings, Professor Rothstein recommended that physicians assist their patients by
侵权法对卫生法一些基本方面的影响是众所周知的。例如,当医生在医疗、外科手术或诊断检查方面偏离护理标准时,患者可能会以疏忽为由起诉医生。通过进一步的例子,当医生在没有得到患者任何同意的情况下进行医疗或外科手术时,电池作用原因可能是合适的。或者,当医生获得治疗的技术同意,但未能提供足够的信息使患者能够给予知情同意时,患者可能会声称存在疏忽。在2019年1月4日于路易斯安那州新奥尔良举行的美国法学院协会(AALS)年会上,AALS侵权和赔偿制度科召集了一个小组,由四位杰出的演讲者组成,他们研究了侵权法和健康法领域之间其他不太明显的联系和关系。Herbert F.Boehl法律与医学主席、路易斯维尔大学医学院生物伦理、卫生政策与法律研究所创始所长Mark Rothstein宣布小组开幕。Rothstein教授研究了临床遗传学中最具争议和误解的问题之一;也就是说,在侵权行为中,医生是否有义务警告患者的基因风险亲属。Rothstein教授认为,发出警告的最佳道德和法律地位是医生的病人,而不是医生,他建议医生通过以下方式帮助病人
{"title":"Foreword: Tort Law and Health Law: Intersections and Opportunities","authors":"Stacey A. Tovino","doi":"10.1515/JTL-2019-0005","DOIUrl":"https://doi.org/10.1515/JTL-2019-0005","url":null,"abstract":"The influence of tort law on some basic aspects of health law is well known. For example, a patient may sue a physician in negligence when the physician deviates from the standard of care with respect to the performance of a medical treatment, surgical procedure, or diagnostic examination. By further example, the battery cause of action may be appropriate when a physician performs a medical treatment or surgical procedure without any consent from the patient. Or, a patient may allege negligence when a physician obtains technical consent to treatment but fails to provide information sufficient to enable the patient to give informed consent. At the Association of American Law Schools (AALS) Annual Meeting held on January 4, 2019, in New Orleans, Louisiana, the AALS Section on Torts and Compensation Systems convened a panel featuring four distinguished speakers who examined other, less obvious ties and relationships between the fields of tort law and health law. Mark Rothstein, the Herbert F. Boehl Chair of Law and Medicine and the Founding Director of the Institute for Bioethics, Health Policy and Law at the University of Louisville School of Medicine, opened the panel. Professor Rothstein examined one of the most controversial and misunderstood issues in clinical genetics; that is, whether a physician has a duty in tort to warn a patient’s genetically at-risk relatives. Arguing that the physician’s patient, not the physician, is in the best ethical and legal position to issue warnings, Professor Rothstein recommended that physicians assist their patients by","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"12 1","pages":"5 - 7"},"PeriodicalIF":0.0,"publicationDate":"2019-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/JTL-2019-0005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44274136","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}
引用次数: 0
The Spirit of the Common Law and the Rights of Women: A Review of Bernstein, the Common Law Inside the Female Body 普通法精神与妇女权利——评伯恩斯坦的《女性身体中的普通法》
Q3 Social Sciences Pub Date : 2019-05-27 DOI: 10.1515/jtl-2019-0010
David F. Partlett
This book is both narrow yet courageous, it is not highly theorized yet subtle and multitracked in its use of theory, it is a bold feminist statement yet tacks to an independent path, it is radical but rests on old revered foundations, it hits hard yet is carefully crafted in logic. What a joy it is to read and to review. It coincides with a core of my ideas of the nature of private common law, but I find I have disagreements with some of the assertions of tort law principles that ground some of the major conclusions. Here Professor Bernstein is at her iconoclastic best in presenting a tract of tort scholarship that challenges all those who have brought the law of torts to its present state. No universal theory is presented. The unifying theory has been much favored since the turn of the twenty-first century. No underlying extra-legal explanations are provided, although rich history and philosophical, psychological and sociological insights give thrust to the arguments. And at the pole she is scathingly political. As she recognizes, readers who come to the book expecting dismissal of the common law from the stage for new visions of a transformed body of law will find an argument that starts with us accepting the spirit of the common law and a rejection of all that Jeremy Bentham was to prescribe as a cure for its inadequacies. Bentham, we are told, was an “interlocutor” on the author’s “mental shoulder” as she wrote the book. It seems remarkable that when she visited Bentham’s “auto-icon,” as exhibited in NYC, it did not rise up in objection to one who does not share his faith in the grandeur and fruitfulness of legislative codes as maximizing happiness. In presenting the argument she departs, as she
这本书既狭隘又勇敢,它的理论化程度不高,但在理论的使用上却微妙而多元,它是一个大胆的女权主义声明,但却走上了一条独立的道路,它是激进的,但建立在古老而受人尊敬的基础上,它打击很大,但在逻辑上精心制作。阅读和复习是多么快乐啊。这与我对普通私法性质的一个核心观点不谋而合,但我发现我与侵权法原则的一些主张存在分歧,这些主张是一些主要结论的基础。在这里,伯恩斯坦教授以其打破传统的最佳方式提出了一系列侵权学术,挑战了所有将侵权法带到目前状态的人。没有提出普遍的理论。自21世纪之交以来,统一理论一直备受青睐。尽管丰富的历史和哲学、心理学和社会学见解为这些论点提供了有力的论据,但没有提供潜在的法外解释。在极点,她是严厉的政治人物。正如她所认识到的那样,那些期待着普通法从舞台上被抛弃,以期对一个转型的法律体系有新的愿景的读者,会发现一个论点,它始于我们接受普通法的精神,并拒绝杰里米·边沁(Jeremy Bentham)为弥补其不足而开出的所有处方。据我们所知,边沁在写这本书时是作者“精神肩膀”上的“对话者”。值得注意的是,当她参观在纽约展出的宾利“汽车偶像”时,并没有反对一个不相信立法法规的宏伟和丰富是最大限度地提高幸福感的人。在陈述论点时,她离开了
{"title":"The Spirit of the Common Law and the Rights of Women: A Review of Bernstein, the Common Law Inside the Female Body","authors":"David F. Partlett","doi":"10.1515/jtl-2019-0010","DOIUrl":"https://doi.org/10.1515/jtl-2019-0010","url":null,"abstract":"This book is both narrow yet courageous, it is not highly theorized yet subtle and multitracked in its use of theory, it is a bold feminist statement yet tacks to an independent path, it is radical but rests on old revered foundations, it hits hard yet is carefully crafted in logic. What a joy it is to read and to review. It coincides with a core of my ideas of the nature of private common law, but I find I have disagreements with some of the assertions of tort law principles that ground some of the major conclusions. Here Professor Bernstein is at her iconoclastic best in presenting a tract of tort scholarship that challenges all those who have brought the law of torts to its present state. No universal theory is presented. The unifying theory has been much favored since the turn of the twenty-first century. No underlying extra-legal explanations are provided, although rich history and philosophical, psychological and sociological insights give thrust to the arguments. And at the pole she is scathingly political. As she recognizes, readers who come to the book expecting dismissal of the common law from the stage for new visions of a transformed body of law will find an argument that starts with us accepting the spirit of the common law and a rejection of all that Jeremy Bentham was to prescribe as a cure for its inadequacies. Bentham, we are told, was an “interlocutor” on the author’s “mental shoulder” as she wrote the book. It seems remarkable that when she visited Bentham’s “auto-icon,” as exhibited in NYC, it did not rise up in objection to one who does not share his faith in the grandeur and fruitfulness of legislative codes as maximizing happiness. In presenting the argument she departs, as she","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"12 1","pages":"127 - 153"},"PeriodicalIF":0.0,"publicationDate":"2019-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2019-0010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42348032","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}
引用次数: 0
AALS Section on Torts and Compensation Systems Bestows William L. Prosser Award on Kenneth W. Simons AALS关于侵权和赔偿制度的章节授予Kenneth W.Simons William L.Prosser奖
Q3 Social Sciences Pub Date : 2019-05-27 DOI: 10.1515/JTL-2019-0006
Stacey A. Tovino, K. Simons
The William L. Prosser Award, bestowed by the Association of American Law Schools Section on Torts and Compensation Systems, recognizes outstanding contributions of law teachers in scholarship, teaching and service relating to torts and compensation systems. Designed to recognize a lifetime of truly outstanding contribution to the world of torts, the Prosser Award was first bestowed upon Leon Green in 1974. Subsequent Prosser Award winners included Fleming James, Wex Malone, Page Keeton, John Wade, and Willard Pedrick. Revived in 2008, recent Prosser Award winners include Robert Rabin (2008), Dan Dobbs (2009), Oscar Gray (2010), Guido Calabresi (2011), Richard Posner (2012), Jane Stapleton (2013), James Henderson, Jr (2014), Michael Green (2015), Aaron Twerski (2016), Stephen Sugarman (2017), and Marshall Shapo (2018). It is my great honor and pleasure to announce that Kenneth W. Simons, Chancellor’s Professor of Law at the University of California Irvine (UC Irvine) School of Law, is the 2019 Prosser Award winner. Professor Simons is a leading scholar of tort law, criminal law, and law and philosophy and Co-director of UC Irvine’s Center for Legal Philosophy. Since 2014, he has served as Chief Reporter for the American Law Institute’s Restatement Third of Torts: Intentional Torts to Persons. Professor Simons has published influential scholarship concerning consent, assumption of risk and contributory negligence; the nature and role
威廉·L·普罗瑟奖由美国法学院协会侵权和赔偿制度分会颁发,旨在表彰法律教师在与侵权和赔偿系统相关的学术、教学和服务方面的杰出贡献。普罗瑟奖于1974年首次授予莱昂·格林,旨在表彰他一生对侵权行为做出的真正杰出贡献。随后的普罗瑟奖得主包括弗莱明·詹姆斯、韦克斯·马隆、佩奇·基顿、约翰·韦德和威拉德·佩德里克。Prosser奖于2008年重新出现,最近的获奖者包括Robert Rabin(2008年)、Dan Dobbs(2009年)、Oscar Gray(2010年)、Guido Calabresi(2011年)、Richard Posner(2012年)、Jane Stapleton(2013年)、James Henderson,Jr(2014年)、Michael Green(2015年)、Aaron Twerski(2016年)、Stephen Sugarman(2017年)和Marshall Shapo(2018年)。我非常荣幸和高兴地宣布,加州大学欧文分校法学院院长法律教授Kenneth W.Simons获得2019年Prosser奖。Simons教授是侵权法、刑法、法律与哲学领域的领军学者,也是加州大学欧文分校法哲学中心的联合主任。自2014年以来,他一直担任美国法律研究所《重述第三种侵权行为:对人的故意侵权》的首席记者。Simons教授发表了关于同意、风险承担和共同过失的有影响力的学术论文;性质和作用
{"title":"AALS Section on Torts and Compensation Systems Bestows William L. Prosser Award on Kenneth W. Simons","authors":"Stacey A. Tovino, K. Simons","doi":"10.1515/JTL-2019-0006","DOIUrl":"https://doi.org/10.1515/JTL-2019-0006","url":null,"abstract":"The William L. Prosser Award, bestowed by the Association of American Law Schools Section on Torts and Compensation Systems, recognizes outstanding contributions of law teachers in scholarship, teaching and service relating to torts and compensation systems. Designed to recognize a lifetime of truly outstanding contribution to the world of torts, the Prosser Award was first bestowed upon Leon Green in 1974. Subsequent Prosser Award winners included Fleming James, Wex Malone, Page Keeton, John Wade, and Willard Pedrick. Revived in 2008, recent Prosser Award winners include Robert Rabin (2008), Dan Dobbs (2009), Oscar Gray (2010), Guido Calabresi (2011), Richard Posner (2012), Jane Stapleton (2013), James Henderson, Jr (2014), Michael Green (2015), Aaron Twerski (2016), Stephen Sugarman (2017), and Marshall Shapo (2018). It is my great honor and pleasure to announce that Kenneth W. Simons, Chancellor’s Professor of Law at the University of California Irvine (UC Irvine) School of Law, is the 2019 Prosser Award winner. Professor Simons is a leading scholar of tort law, criminal law, and law and philosophy and Co-director of UC Irvine’s Center for Legal Philosophy. Since 2014, he has served as Chief Reporter for the American Law Institute’s Restatement Third of Torts: Intentional Torts to Persons. Professor Simons has published influential scholarship concerning consent, assumption of risk and contributory negligence; the nature and role","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"12 1","pages":"1 - 4"},"PeriodicalIF":0.0,"publicationDate":"2019-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/JTL-2019-0006","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44007513","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}
引用次数: 0
Healthism in Tort Law 侵权行为法中的健康主义
Q3 Social Sciences Pub Date : 2019-03-07 DOI: 10.1515/jtl-2019-0004
E. Weeks
Abstract This article considers ways that torts decisions and doctrine may operate discriminatorily against the unhealthy. The discussion draws from one chapter of my recently published book, Healthism: Health Status Discrimination and the Law, specifically, the chapter on “Healthism in Private Law.” Healthism examines, across contexts, instances of discrimination based on health status, suggesting that in at least some circumstances, treating people differently because of their health status or health habits is normatively wrong and, thus, “healthist.” We discuss many examples in the book, but our ultimate goal is to introduce the term into the public lexicon and attune readers to additional examples, which, we maintain, abound: Consider non-smoking policies in public housing; airlines or movie theaters charging obese passengers for two seats; employers refusing to hire based on out-of-work health habits and conditions, including tobacco use and obesity; or a physician refusing to treat a patient with multiple conditions and a history of noncompliance. Each of these scenarios carries a potential for healthism.
摘要:本文探讨了侵权判决和侵权原则可能对不健康的人造成歧视的方式。讨论摘自我最近出版的书《健康主义:健康状况歧视与法律》中的一章,特别是关于“私法中的健康主义”的一章。健康主义在各种情况下审查基于健康状况的歧视情况,表明至少在某些情况下,因健康状况或健康习惯而区别对待人们在规范上是错误的,因此是"健康主义的"。我们在书中讨论了许多例子,但我们的最终目标是将这个术语引入公共词汇,并让读者了解更多的例子,我们认为这样的例子比比皆是:考虑公共住房的禁烟政策;航空公司或电影院向肥胖乘客收取两个座位的费用;雇主以失业时的健康习惯和状况,包括吸烟和肥胖为由拒绝雇用;或者医生拒绝治疗患有多种疾病且有不遵医嘱史的病人。每一种情况都有潜在的健康主义。
{"title":"Healthism in Tort Law","authors":"E. Weeks","doi":"10.1515/jtl-2019-0004","DOIUrl":"https://doi.org/10.1515/jtl-2019-0004","url":null,"abstract":"Abstract This article considers ways that torts decisions and doctrine may operate discriminatorily against the unhealthy. The discussion draws from one chapter of my recently published book, Healthism: Health Status Discrimination and the Law, specifically, the chapter on “Healthism in Private Law.” Healthism examines, across contexts, instances of discrimination based on health status, suggesting that in at least some circumstances, treating people differently because of their health status or health habits is normatively wrong and, thus, “healthist.” We discuss many examples in the book, but our ultimate goal is to introduce the term into the public lexicon and attune readers to additional examples, which, we maintain, abound: Consider non-smoking policies in public housing; airlines or movie theaters charging obese passengers for two seats; employers refusing to hire based on out-of-work health habits and conditions, including tobacco use and obesity; or a physician refusing to treat a patient with multiple conditions and a history of noncompliance. Each of these scenarios carries a potential for healthism.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"232 2","pages":"126 - 81"},"PeriodicalIF":0.0,"publicationDate":"2019-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2019-0004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41287185","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}
引用次数: 0
Defining The Known Risk: Context-Sensitivity In Tort Law Defenses 定义已知风险:侵权法辩护中的情境敏感性
Q3 Social Sciences Pub Date : 2019-01-01 DOI: 10.1515/jtl-2019-0003
Nadia N Sawicki
Abstract The law of negligence is designed to apply uniformly across contexts. Whether dealing with a car accident, medical malpractice, or a slip-and-fall case, tort law consistently asks whether a defendant owed a duty of care to the plaintiff and whether he exercised reasonable care in fulfilling that duty. Tort law defenses, too, are generally understood to be context-neutral. The doctrines of comparative negligence and assumption of risk should not vary depending on the precise circumstances surrounding an injury. And yet, there is a peculiar inconsistency in how some defenses are applied in cases of medical malpractice as compared to cases outside the health care context. Specifically, reliance on secondary implied assumption of risk seems to require greater knowledge on the part of the plaintiff in malpractice cases than in other contexts. In recreational sport cases, for example, a plaintiff will be denied recovery if he voluntarily encountered a known risk of physical injury – regardless of whether he understood that the risk was the result of a defendant’s negligence. In contrast, in medical malpractice cases, most people’s intuition is that the plaintiff’s recovery should be denied or limited only if he had knowledge of the risk of physical injury as well as the fact that this risk was created by a negligent defendant. There is no clear doctrinal explanation for this distinction. This article describes this conundrum and poses the question of whether and when such context-specific adjustments might be doctrinally justified. Ultimately, the most likely explanation is grounded in medical exceptionalist claims that the unique nature of health care justifies a more flexible and nuanced application of legal doctrine. While this conclusion may be unsatisfying to some, it presents a valuable opportunity to revisit debates about the supposed context-neutrality of tort law.
过失侵权法旨在统一适用于不同情况。无论是处理车祸、医疗事故还是滑倒案件,侵权法始终要求被告是否对原告负有注意义务,以及他在履行该义务时是否行使了合理的注意。侵权法辩护也通常被理解为情境中立。相对过失和风险承担的原则不应根据围绕伤害的具体情况而变化。然而,在医疗事故案件中,与医疗保健环境之外的案件相比,在如何应用一些辩护方面存在着特殊的不一致。具体而言,在医疗事故案件中,依赖于二级隐含风险假设似乎比在其他情况下需要原告有更多的知识。例如,在娱乐体育案件中,如果原告自愿遇到已知的身体伤害风险,无论他是否理解这种风险是被告疏忽造成的,原告将被拒绝赔偿。相比之下,在医疗事故案件中,大多数人的直觉是,只有当原告知道身体伤害的风险以及这种风险是由疏忽的被告造成的事实时,才应该拒绝或限制原告的赔偿。对于这种区别,没有明确的理论解释。本文描述了这个难题,并提出了这样一个问题,即这种特定于上下文的调整是否以及何时可能在理论上是合理的。最终,最可能的解释是基于医学例外论的主张,即医疗保健的独特性证明了更灵活、更细致地应用法律原则是合理的。虽然这个结论可能对一些人来说不满意,但它提供了一个宝贵的机会来重新审视关于侵权法的假定情境中立的辩论。
{"title":"Defining The Known Risk: Context-Sensitivity In Tort Law Defenses","authors":"Nadia N Sawicki","doi":"10.1515/jtl-2019-0003","DOIUrl":"https://doi.org/10.1515/jtl-2019-0003","url":null,"abstract":"Abstract The law of negligence is designed to apply uniformly across contexts. Whether dealing with a car accident, medical malpractice, or a slip-and-fall case, tort law consistently asks whether a defendant owed a duty of care to the plaintiff and whether he exercised reasonable care in fulfilling that duty. Tort law defenses, too, are generally understood to be context-neutral. The doctrines of comparative negligence and assumption of risk should not vary depending on the precise circumstances surrounding an injury. And yet, there is a peculiar inconsistency in how some defenses are applied in cases of medical malpractice as compared to cases outside the health care context. Specifically, reliance on secondary implied assumption of risk seems to require greater knowledge on the part of the plaintiff in malpractice cases than in other contexts. In recreational sport cases, for example, a plaintiff will be denied recovery if he voluntarily encountered a known risk of physical injury – regardless of whether he understood that the risk was the result of a defendant’s negligence. In contrast, in medical malpractice cases, most people’s intuition is that the plaintiff’s recovery should be denied or limited only if he had knowledge of the risk of physical injury as well as the fact that this risk was created by a negligent defendant. There is no clear doctrinal explanation for this distinction. This article describes this conundrum and poses the question of whether and when such context-specific adjustments might be doctrinally justified. Ultimately, the most likely explanation is grounded in medical exceptionalist claims that the unique nature of health care justifies a more flexible and nuanced application of legal doctrine. While this conclusion may be unsatisfying to some, it presents a valuable opportunity to revisit debates about the supposed context-neutrality of tort law.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"2674 1","pages":"31 - 9"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2019-0003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66902630","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}
引用次数: 0
Frontmatter Frontmatter
Q3 Social Sciences Pub Date : 2018-11-07 DOI: 10.1515/jtl-2018-frontmatter2
{"title":"Frontmatter","authors":"","doi":"10.1515/jtl-2018-frontmatter2","DOIUrl":"https://doi.org/10.1515/jtl-2018-frontmatter2","url":null,"abstract":"","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-11-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2018-frontmatter2","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46014658","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}
引用次数: 0
Deciding Novel and Routine Cases without Evidence 在没有证据的情况下决定新的和常规的案件
Q3 Social Sciences Pub Date : 2018-10-25 DOI: 10.1515/jtl-2018-0011
Peter Applegarth
Abstract In novel cases, judges often weigh policy considerations based on common sense assumptions and personal experience about how certain individuals, groups and institutions behave. For example, in assessing the consequences of creating a new category of duty of care, a new immunity from suit or even a new tort, judges are invited to predict (or speculate about) how individuals, groups, professions and institutions would behave if the law was different. In routine cases, judges also rely on assumptions and experience in deciding questions of reasonableness and past hypothetical facts about causation. In deciding both novel and routine cases on the basis of assumptions and experience, judges are prone to cognitive biases that affect decision-making in general.
摘要在新颖的案件中,法官经常根据对某些个人、群体和机构行为的常识性假设和个人经验来权衡政策考虑。例如,在评估设立新的注意义务类别、新的诉讼豁免权甚至新的侵权行为的后果时,法官被邀请预测(或推测)如果法律不同,个人、团体、专业和机构将如何行事。在常规案件中,法官在决定合理性问题和过去关于因果关系的假设事实时,也依赖于假设和经验。在根据假设和经验决定新案件和常规案件时,法官容易产生影响总体决策的认知偏见。
{"title":"Deciding Novel and Routine Cases without Evidence","authors":"Peter Applegarth","doi":"10.1515/jtl-2018-0011","DOIUrl":"https://doi.org/10.1515/jtl-2018-0011","url":null,"abstract":"Abstract In novel cases, judges often weigh policy considerations based on common sense assumptions and personal experience about how certain individuals, groups and institutions behave. For example, in assessing the consequences of creating a new category of duty of care, a new immunity from suit or even a new tort, judges are invited to predict (or speculate about) how individuals, groups, professions and institutions would behave if the law was different. In routine cases, judges also rely on assumptions and experience in deciding questions of reasonableness and past hypothetical facts about causation. In deciding both novel and routine cases on the basis of assumptions and experience, judges are prone to cognitive biases that affect decision-making in general.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"11 1","pages":"173 - 208"},"PeriodicalIF":0.0,"publicationDate":"2018-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2018-0011","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43126681","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}
引用次数: 1
期刊
Journal of Tort Law
全部 Acc. Chem. Res. ACS Applied Bio Materials ACS Appl. Electron. Mater. ACS Appl. Energy Mater. ACS Appl. Mater. Interfaces ACS Appl. Nano Mater. ACS Appl. Polym. Mater. ACS BIOMATER-SCI ENG ACS Catal. ACS Cent. Sci. ACS Chem. Biol. ACS Chemical Health & Safety ACS Chem. Neurosci. ACS Comb. Sci. ACS Earth Space Chem. ACS Energy Lett. ACS Infect. Dis. ACS Macro Lett. ACS Mater. Lett. ACS Med. Chem. Lett. ACS Nano ACS Omega ACS Photonics ACS Sens. ACS Sustainable Chem. Eng. ACS Synth. Biol. Anal. Chem. BIOCHEMISTRY-US Bioconjugate Chem. BIOMACROMOLECULES Chem. Res. Toxicol. Chem. Rev. Chem. Mater. CRYST GROWTH DES ENERG FUEL Environ. Sci. Technol. Environ. Sci. Technol. Lett. Eur. J. Inorg. Chem. IND ENG CHEM RES Inorg. Chem. J. Agric. Food. Chem. J. Chem. Eng. Data J. Chem. Educ. J. Chem. Inf. Model. J. Chem. Theory Comput. J. Med. Chem. J. Nat. Prod. J PROTEOME RES J. Am. Chem. Soc. LANGMUIR MACROMOLECULES Mol. Pharmaceutics Nano Lett. Org. Lett. ORG PROCESS RES DEV ORGANOMETALLICS J. Org. Chem. J. Phys. Chem. J. Phys. Chem. A J. Phys. Chem. B J. Phys. Chem. C J. Phys. Chem. Lett. Analyst Anal. Methods Biomater. Sci. Catal. Sci. Technol. Chem. Commun. Chem. Soc. Rev. CHEM EDUC RES PRACT CRYSTENGCOMM Dalton Trans. Energy Environ. Sci. ENVIRON SCI-NANO ENVIRON SCI-PROC IMP ENVIRON SCI-WAT RES Faraday Discuss. Food Funct. Green Chem. Inorg. Chem. Front. Integr. Biol. J. Anal. At. Spectrom. J. Mater. Chem. A J. Mater. Chem. B J. Mater. Chem. C Lab Chip Mater. Chem. Front. Mater. Horiz. MEDCHEMCOMM Metallomics Mol. Biosyst. Mol. Syst. Des. Eng. Nanoscale Nanoscale Horiz. Nat. Prod. Rep. New J. Chem. Org. Biomol. Chem. Org. Chem. Front. PHOTOCH PHOTOBIO SCI PCCP Polym. Chem.
×
引用
GB/T 7714-2015
复制
MLA
复制
APA
复制
导出至
BibTeX EndNote RefMan NoteFirst NoteExpress
×
0
微信
客服QQ
Book学术公众号 扫码关注我们
反馈
×
意见反馈
请填写您的意见或建议
请填写您的手机或邮箱
×
提示
您的信息不完整,为了账户安全,请先补充。
现在去补充
×
提示
您因"违规操作"
具体请查看互助需知
我知道了
×
提示
现在去查看 取消
×
提示
确定
Book学术官方微信
Book学术文献互助
Book学术文献互助群
群 号:481959085
Book学术
文献互助 智能选刊 最新文献 互助须知 联系我们:info@booksci.cn
Book学术提供免费学术资源搜索服务,方便国内外学者检索中英文文献。致力于提供最便捷和优质的服务体验。
Copyright © 2023 Book学术 All rights reserved.
ghs 京公网安备 11010802042870号 京ICP备2023020795号-1