This article contains a review of Professor Richard Nagareda's recent book, Mass Torts in a World of Settlement. Nagareda's premise is that parties have moved away from litigation and toward procedures that are more administrative in nature to resolve mass tort claims and that this move should be facilitated by putting in place a more formal structure to provide an administrative or regulatory solution. However, it is not clear that Nagareda's approach will be feasible in practice. Nor is it clear that it will provide a comprehensive solution to the problems plaguing mass tort litigation. More fundamentally, there are particular aspects of traditional litigation-based resolution of mass tort claims that are important and should not be abandoned. Much of the dysfunction with respect to mass tort claims resolution may be traced to a failure to implement litigation-based procedures, as opposed to being a result of such procedures. Accordingly, a strong case can be made that the traditional litigation-based paradigm should not be abandoned, but rather fortified.
{"title":"An Administrative Approach to the Resolution of Mass Torts?","authors":"Douglas G. Smith","doi":"10.2139/SSRN.1090026","DOIUrl":"https://doi.org/10.2139/SSRN.1090026","url":null,"abstract":"This article contains a review of Professor Richard Nagareda's recent book, Mass Torts in a World of Settlement. Nagareda's premise is that parties have moved away from litigation and toward procedures that are more administrative in nature to resolve mass tort claims and that this move should be facilitated by putting in place a more formal structure to provide an administrative or regulatory solution. However, it is not clear that Nagareda's approach will be feasible in practice. Nor is it clear that it will provide a comprehensive solution to the problems plaguing mass tort litigation. More fundamentally, there are particular aspects of traditional litigation-based resolution of mass tort claims that are important and should not be abandoned. Much of the dysfunction with respect to mass tort claims resolution may be traced to a failure to implement litigation-based procedures, as opposed to being a result of such procedures. Accordingly, a strong case can be made that the traditional litigation-based paradigm should not be abandoned, but rather fortified.","PeriodicalId":410319,"journal":{"name":"Law & Society: Private Law - Torts eJournal","volume":"90 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132423057","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}
Torts Chapter of the 1999 Kansas Bar Association Annual Survey.
1999年堪萨斯律师协会年度调查的侵权分会。
{"title":"1999 Kansas Annual Survey","authors":"Stephen R. McAllister, William E. Westerbeke","doi":"10.2139/SSRN.2174137","DOIUrl":"https://doi.org/10.2139/SSRN.2174137","url":null,"abstract":"Torts Chapter of the 1999 Kansas Bar Association Annual Survey.","PeriodicalId":410319,"journal":{"name":"Law & Society: Private Law - Torts eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1998-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134326086","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 introduction of structured settlements into the U.K. in 1989 has proven to be one of the most important reforms ever made to the law of damages for personal injury. It is now essential to consider the periodical payment of tort compensation in any case where serious injury is involved. This article considers both the advantages and the disadvantages of this new form of payment.
{"title":"The Merits of A Structured Settlement: The Plaintiff's Perspective","authors":"Richard J. Lewis","doi":"10.1093/OJLS/13.4.530","DOIUrl":"https://doi.org/10.1093/OJLS/13.4.530","url":null,"abstract":"The introduction of structured settlements into the U.K. in 1989 has proven to be one of the most important reforms ever made to the law of damages for personal injury. It is now essential to consider the periodical payment of tort compensation in any case where serious injury is involved. This article considers both the advantages and the disadvantages of this new form of payment.","PeriodicalId":410319,"journal":{"name":"Law & Society: Private Law - Torts eJournal","volume":"39 4","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1993-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120920236","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 essay considers a number of difficult issues in comparing compensatory damages in tort and contract in the context of concurrent liability. Four questions are focused on. Looking across all four questions, it is argued that, while the measure of damages should reflect the underlying wrong in question – so that the reliance interest should not be protected for breach of contract as opposed to tortious misrepresentation – there is usually no rational reason for applying different restrictions on compensatory damages in contract and tort in cases of concurrent liability. So it is that there should be an assimilated approach to remoteness and to the recovery of mental distress in the context of concurrent liability with, in both situations, the contractual rules applying to the concurrent claim in the tort of negligence. And as regards loss of a chance, the most rational assimilation depends on recognising that the differences should rest not on whether the cause of action is tort or contract but rather on whether the type of loss in question is economic or a personal injury.
{"title":"Comparing Compensatory Damages in Tort and Contract: Some Problematic Issues","authors":"A. Burrows","doi":"10.2139/ssrn.2280293","DOIUrl":"https://doi.org/10.2139/ssrn.2280293","url":null,"abstract":"This essay considers a number of difficult issues in comparing compensatory damages in tort and contract in the context of concurrent liability. Four questions are focused on. Looking across all four questions, it is argued that, while the measure of damages should reflect the underlying wrong in question – so that the reliance interest should not be protected for breach of contract as opposed to tortious misrepresentation – there is usually no rational reason for applying different restrictions on compensatory damages in contract and tort in cases of concurrent liability. So it is that there should be an assimilated approach to remoteness and to the recovery of mental distress in the context of concurrent liability with, in both situations, the contractual rules applying to the concurrent claim in the tort of negligence. And as regards loss of a chance, the most rational assimilation depends on recognising that the differences should rest not on whether the cause of action is tort or contract but rather on whether the type of loss in question is economic or a personal injury.","PeriodicalId":410319,"journal":{"name":"Law & Society: Private Law - Torts eJournal","volume":"214 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124207986","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 : 1900-01-01DOI: 10.1017/9781780685595.023
De Mot Jef, M. Faure
Traditional economic analysis of accident law has largely focused on individual utility maximising actors as potential injurers and victims. On that basis a huge literature has been developed since the early publications of Calabresi in the 1960's explaining under which conditions particular liability rules may be effective in promoting social welfare. Moreover, the theoretical assumptions made in the literature have increasingly been met with empirical support. However, less attention has been paid to the situation where the tortfeasor is not an individual actor or a commercial enterprise, but rather a public authority. Only relatively recently have some articles started to explore public authority liability. The goal of our contribution is to provide an overview of this literature.
{"title":"The Liability of Public Authorities: An Economic Analysis","authors":"De Mot Jef, M. Faure","doi":"10.1017/9781780685595.023","DOIUrl":"https://doi.org/10.1017/9781780685595.023","url":null,"abstract":"Traditional economic analysis of accident law has largely focused on individual utility maximising actors as potential injurers and victims. On that basis a huge literature has been developed since the early publications of Calabresi in the 1960's explaining under which conditions particular liability rules may be effective in promoting social welfare. Moreover, the theoretical assumptions made in the literature have increasingly been met with empirical support. However, less attention has been paid to the situation where the tortfeasor is not an individual actor or a commercial enterprise, but rather a public authority. Only relatively recently have some articles started to explore public authority liability. The goal of our contribution is to provide an overview of this literature.","PeriodicalId":410319,"journal":{"name":"Law & Society: Private Law - Torts eJournal","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122132529","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}
Incentive effect of liability law may be affected by the presence of liability insurance. Apparently when a party has liability insurance and does not have to pay directly from its own pocket, it will have less motivation to exercise proper care. This tendency of an insured is known as “moral hazard.” There are many studies on the problem of “moral hazard” and on various mechanisms how to address it. Yet, there is a lack of academic discussion on comparative analysis between liability law and liability insurance in terms of their effect on creation of incentives; that is, whether liability law alone induces best care or whether liability insurance with its various incentive mechanisms leads to better care. Of course, liability insurance cannot exist without liability law. This paper argues that the presence of liability insurance produces better incentives towards care than liability law alone.
{"title":"Incentive Effect of Liability Rules in the Presence of Liability Insurance in the Maritime Law Context: An Economic Analysis","authors":"M. Billah","doi":"10.2139/ssrn.2859640","DOIUrl":"https://doi.org/10.2139/ssrn.2859640","url":null,"abstract":"Incentive effect of liability law may be affected by the presence of liability insurance. Apparently when a party has liability insurance and does not have to pay directly from its own pocket, it will have less motivation to exercise proper care. This tendency of an insured is known as “moral hazard.” There are many studies on the problem of “moral hazard” and on various mechanisms how to address it. Yet, there is a lack of academic discussion on comparative analysis between liability law and liability insurance in terms of their effect on creation of incentives; that is, whether liability law alone induces best care or whether liability insurance with its various incentive mechanisms leads to better care. Of course, liability insurance cannot exist without liability law. This paper argues that the presence of liability insurance produces better incentives towards care than liability law alone.","PeriodicalId":410319,"journal":{"name":"Law & Society: Private Law - Torts eJournal","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129729322","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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