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This chapter considers a misalignment between the standards of care and damages due to a court's lack of information regarding causation. It first explains the distinction between prices and sanctions before discussing the discontinuity problem in tort law and contract law. It then examines how, under negligence law, an injurer who fails to satisfy the standard of care is liable for the harm caused by his negligence and how courts impose liability on the slightly negligent injurer for all harms caused by his behavior. It also explores how discontinuity in liability under negligence law creates misalignments that may result in overdeterrence or underdeterrence. The chapter concludes by suggesting how these misalignments could be mitigated.

This chapter considers a misalignment due to courts' ignorance of the injurer's self-risk when they set the standard of care. In setting the standards of care, courts consider the risks the injurer created toward others, and systematically exclude the risks the injurer created for himself. Thus courts set the standard of care for driving in light of the danger to others, without accounting for the danger to the driver. The chapter explains why courts should determine liability by reference to the risk imposed by the injurer on others and himself. It first considers the Hand Rule or Learned Hand formula, applied by courts to determine the negligence of the injurer, before discussing the “net burden” interpretation of the Hand Rule. It then presents four paradigmatic examples, based on real cases, that illustrate the pervasiveness of joint risks in law. It concludes by analyzing several objections that could be raised against the self-risk argument.

This chapter examines positive externalities caused by nonlegal sanctions. It first considers a wrongdoer's incentives in cases where nonlegal sanctions are dead-weight losses versus cases where nonlegal sanctions transfer or create value. It then presents theoretical arguments about victims' incentives before making the case for deducting nonlegal sanctions and explaining how this affects legal standards of care and damages. It also describes three elements of social costs and benefits and whether each is internalized by wrongdoers: plaintiff's harm from the wrong, defendant's harm from the nonlegal sanctions, and other peoples' benefit from the nonlegal sanctions. The chapter introduces the notion of “ideal net damages,” which it asserts should be awarded by courts in the typical case where nonlegal sanctions benefit other people, and “practical net damages,” suggesting that courts must deduct the burden of the nonlegal sanction on the wrongdoer.

The problem of how to judge individuals with cognitive or intellectual shortcomings illustrates one aspect of the ‘trouble’ with the reasonable person and thus raises a series of questions implicated in objective standards more generally. In stark contrast to the treatment of mentally disabled defendants, courts and commentators addressing the application of the objective standard to the child defendant insist that the basis of liability in negligence actually requires taking account of the limitations of childhood. The leading common law case on the standard of care to be applied in negligence cases against child defendants is the decision of the High Court of Australia in McHale v Watson. The most far-reaching question addressed by the courts in this case concerned the appropriate standard of care for child defendants. The McHale case also illustrates how judges, in giving content to the notion of reasonable care, may use judicial notice to draw on common sense notions of what is natural or normal behaviour of boys in particular.

This introductory chapter addresses five major reasons for evidence-based practice and three philosophies of science that might serve to under gird it. The five reasons are ethical, legal, clinical, educational, and economic reasons. The ethical reasons found that in every major Code of Ethics for school service providers there was a mandate for staying current with the research literature. The legal reasons include both case law and federal legislation. Case law looks at three US Supreme Court rulings that define the legal standard for scientific evidence. Both the No Child Left Behind Act and the Individuals with Disabilities Improvement Act use the same definition of scientifically based research. Clinical reasons included standards of care, avoiding harm, and optimal practice. Educational outcomes that can be improved include school behavior, academic performance, and parental school engagement. Economic reasons include greater efficiency of time, money, and resources. The major philosophies of science include positivism, constructivism, and critical realism.

The previous chapter explained why technological innovation increases the demand for highly skilled workers in the economy. These same changes affect higher education. Higher education is much more high-tech and equipment intensive than it used to be. But the adoption of new technologies has not reduced college costs as it has in many other industries. This chapter explains why colleges and universities react to technological advancement by changing what they do instead of by reducing the cost of producing the same service. Colleges and universities must meet a “standard of care” driven largely by the labor market their students will face. In order to meet the expected standard of care, colleges and universities have to provide an up-to-date education that fully utilizes new technology, even if that raises cost.

This chapter discusses reports that some hospitals and primary care services are ‘under-performing’ due to a lack of health and social care professionals, particularly in areas like critical care, long-term and chronic illness. Similarly, in schools there are continuing claims that core funding remains a serious issue, that they are struggling to get and keep enough teachers, and standards are threatened as a result. Austerity is an extension of the neo-liberal logic to characterise any form of public spending as ‘unproductive’.

This chapter briefly discusses Gender Identity Disorder (GID), the Standards of Care advocated by Harry Benjamin, and the treatment transsexual patients have been receiving in Hong Kong since 1986. It also describes whether or not GID should be regarded as a mental illness, and the recommendations for the future. It specifically explores and critiques the various ways in which the institutionalization of a gender identity spectrum has been recently taking shape in Hong Kong. As one of the first academic studies of this silenced topic in Hong Kong, it is significant not only as an account studying the history of contemporary transsexuality but also as a powerful political critique of Hong Kong's specifically modern regulatory apparatus of (inter and trans)sexuality.

This chapter critically examines the moral justification of two settled features of tort law—the objective standard of care and strict liability—insofar as they appear to violate the putative moral stricture “ought-implies-can.” The proposition that duties must be possible of fulfillment (and likewise, compliance with applicable normative reasons) has a pedigree stretching back to Immanuel Kant and is still widely assumed. Thus, this chapter begins by defending this foundational proposition on the grounds that normative reasons must be able to guide conduct. It notes that reasons that fail to comply with ought-implies-can are incapable of guiding conduct. This chapter then confronts arguments on behalf of the objective standard of care in negligence and strict liability, respectively, that purport to show that both doctrines sometimes justifiably violate ought-implies-can.

This chapter examines the ambiguity of the foster parent role in the post-World War II period, looking particularly at analogies to other kinds of parenting. It explores efforts by child welfare professionals to reconcile their ambivalent feelings about foster parents through the creation and promotion of national standards for foster care and foster parenting. The chapter looks closely at professional writings about the foster mother role and the reasons why foster fathers received so little attention. It also examines the ways in which foster parents resisted their proscribed role, notably through attempting to adopt children in their care.

An extraordinary category concerns the liability in cases of emergency. This chapter examines whether someone can be liable for damage he causes (or rather did not prevent from happening) for failing to rescue a person from a dangerous situation. With respect to the question of whether someone who sees another person in danger of drowning is obliged to come to his rescue, the legal systems, again, provide different answers. A subsequent question is that, if someone undertakes a rescue, what are his duties? Is he required to be successful or is he only obliged not to make the victim's position worse? The chapter looks at national rules on liability in emergency cases in England, France, and Germany, focusing on issues related to duty to rescue such as the rescuer's standard of care or the rescuer's right to compensation.

We normally think that responsibility tracks mental capacity — i.e. that people’s responsibility diminishes when their mental capacities are compromised, and that it is restored as those capacities are regained. But how is responsibility affected when mental capacities are extended beyond their normal range? Would cognitively enhanced people become “hyper responsible”, and if so then in what sense? Might they acquire new responsibilities? Could they be blamed for failing to discharge those responsibilities? Would this make them more prone to being liable? Would they necessarily be less irresponsible than their non-enhanced counterparts? Relatedly, might we sometimes have a responsibility to cognitively enhance ourselves, and might we be negligent or maybe even reckless if we don’t do so? This chapter argues that cognitive enhancement affects our responsibility in a range of different ways, and it also suggests some ways in which cognitive enhancement is likely to impact on legal responsibility.

Chapter Four discusses in broad strokes the potential impact of neuroscientific findings on tort law doctrine—including the standard of care, proximate causation, and the compensability as well as monetization of injuries—and suggests that neuroscience may recast the normative commitments of tort doctrine. First, the chapter considers the reasonable person standard, and discusses how neuroscience may narrow, if not eliminate, doctrinal distinctions and normative flexibility premised on incomplete conceptions of human agency—at the individual or societal level. Second, the chapter discusses implications of neuroscience for issues of causation and comparative fault by evaluating neural processes involved in cigarette addiction and traumatic brain injuries. Third, the chapter challenges the law’s distinction between physical and mental harms in compensation (and its justifications for doing so) as neuroscience tends to break down that distinction. Finally, the chapter highlights the science’s potential to provide more objective reporting of pain for awarding damages.

This chapter will examine a range of legal issues that have arisen as a result of the emergence of putative cognitive enhancement technologies and transcranial direct current stimulation devices. It provides an overview of the areas of challenge and some exploration of how the emergence of new technologies can have an impact on the law. It then presents some of the essential legal principles that may be relevant in the context of new cognitive enhancement technologies. It covers a broad range of areas of law, including how product liability rules might apply to the sale and supply of enhancement products; the potential impact of enhancement on the standard of care in negligence and whether there could be a “duty to enhance”; and the criminal law implications of enhancement, focusing on the mental element of crimes and issues of consent. Issues around human rights and privacy are also briefly touched upon.

This chapter focuses on the state of emergency as an all-purpose excuse for doing whatever one believes is right, whether government official, practicing physician, or simply a person wanting to help. The primary goal of almost all emergency responses is to save lives, and in the case of a national emergency—sometimes called a national security emergency—to ensure the survival of the state as well. An important question is whether certain individuals or professions should be granted prospective legal immunity for helping their fellow humans in an emergency situation. This chapter first considers the idea that, faced with a massive emergency, health professionals will not be able to provide their usual standard of care and should operate instead under a reduced “catastrophic standard of care.” It then turns to the case of Sidney Miller and what the law says about whether physicians in emergencies are permitted to err on the side of the preservation of life (to avoid the worst-case scenario of death). It also examines the legal regime about life and death decisions.

Even negligence victims who can afford the legal fees often don’t think that suing is worth the risk, given what any good lawyer will tell them is a slim chance of recovery. Reproductive plaintiffs have had little success trying to shoehorn their complaints into a grab bag of ill-suited actions under available theories of civil liability. Some of these are cramped, like deeming lost embryos “property” or “persons”; others are jarring, as when they call a child’s birth or life “wrongful.” Courthouse claims for medical malpractice and emotional distress require showing some physical or economic harm that procreation plaintiffs can’t point to when their test results get switched or sperm samples go missing. These misadventures fall through the cracks of a legal regime that’s reluctant to recognize reproductive losses as real or serious. Facilities make few assurances that would enable victims to sue for breach of contract, and doctors are careful to decline promising any result beyond the safety of patients directly under their care—so there’s seldom any agreed-upon clause for courts to enforce against badly behaving defendants. Besides, most reproductive professionals insist that patients sign clauses shielding them from liability, whether express or implied. Half of all states bar “wrongful birth” suits against medical professionals who fail to inform pregnant women, or give them bad advice about fetal development and prognosis. Even states that allow this malpractice action fail to capture the deeper harms that reproductive negligence inflicts—and they rarely compensate psychological or dignitary harms, standing alone.