Robert D. Cooter and Ariel Porat
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691151595
- eISBN:
- 9781400850396
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691151595.003.0008
- Subject:
- Law, Comparative Law
This chapter proposes a novel contract, dubbed “anti-insurance,” that perfectly solves the paradox of compensation. Breach of contract by the promisor poses a risk of loss to the promisee. With ...
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This chapter proposes a novel contract, dubbed “anti-insurance,” that perfectly solves the paradox of compensation. Breach of contract by the promisor poses a risk of loss to the promisee. With anti-insurance, promisor's liability for breach is 100 percent and promisee's compensation is 0 percent, as required for efficient incentives. The chapter first illustrates how anti-insurance works with a numerical example and considers some factors affecting its scope. It then presents examples of anti-insurance for losses and gains before comparing anti-insurance with other legal devices that give incentives to the promisee without eroding the promisor's incentives; these include mitigation of damages, foreseeability of damages, comparative fault, and liquidated damages. It concludes by explaining why anti-insurance is not available in the market.Less
This chapter proposes a novel contract, dubbed “anti-insurance,” that perfectly solves the paradox of compensation. Breach of contract by the promisor poses a risk of loss to the promisee. With anti-insurance, promisor's liability for breach is 100 percent and promisee's compensation is 0 percent, as required for efficient incentives. The chapter first illustrates how anti-insurance works with a numerical example and considers some factors affecting its scope. It then presents examples of anti-insurance for losses and gains before comparing anti-insurance with other legal devices that give incentives to the promisee without eroding the promisor's incentives; these include mitigation of damages, foreseeability of damages, comparative fault, and liquidated damages. It concludes by explaining why anti-insurance is not available in the market.
Frank J. Vandall
- Published in print:
- 2010
- Published Online:
- May 2011
- ISBN:
- 9780195391916
- eISBN:
- 9780199894772
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195391916.003.0004
- Subject:
- Law, Constitutional and Administrative Law, Legal History
In 1944, the Escola case, which illustrates Justice Traynor's argument about how manufacturers should be held to the standard of strict liability, was decided by the Supreme Court of California. This ...
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In 1944, the Escola case, which illustrates Justice Traynor's argument about how manufacturers should be held to the standard of strict liability, was decided by the Supreme Court of California. This chapter emphasizes how Justice Traynor stressed how responsibility should be taken to make sure that hazards in defective products that reach the market are reduced or eliminated, and how this assertion finally became a law. In line with the passing of this law, several tests for defects such as the risk–benefit test and the Barker v. Lull test have been developed and evaluated in accordance with Section 402A of the Restatement (Second) of Torts. The chapter includes an analysis on comparative fault and addresses the issue on whether this should be applied in strict liability cases or not. Additionally, the role of the court and the jury is also discussed.Less
In 1944, the Escola case, which illustrates Justice Traynor's argument about how manufacturers should be held to the standard of strict liability, was decided by the Supreme Court of California. This chapter emphasizes how Justice Traynor stressed how responsibility should be taken to make sure that hazards in defective products that reach the market are reduced or eliminated, and how this assertion finally became a law. In line with the passing of this law, several tests for defects such as the risk–benefit test and the Barker v. Lull test have been developed and evaluated in accordance with Section 402A of the Restatement (Second) of Torts. The chapter includes an analysis on comparative fault and addresses the issue on whether this should be applied in strict liability cases or not. Additionally, the role of the court and the jury is also discussed.
Jennifer Ann Drobac
- Published in print:
- 2016
- Published Online:
- September 2016
- ISBN:
- 9780226301013
- eISBN:
- 9780226301150
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226301150.003.0005
- Subject:
- Law, Criminal Law and Criminology
The civil system addresses personal injury, sexual exploitation, and “consent,” among other matters, through common law tort (personal injury) laws or more modern state statutory responses to human ...
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The civil system addresses personal injury, sexual exploitation, and “consent,” among other matters, through common law tort (personal injury) laws or more modern state statutory responses to human interactions. This chapter provides the civil law backdrop for the analysis of how adults, and especially jurists, might use the new information regarding adolescent development and psychosocial maturity. By comparing the varied traditional civil law approaches to juvenile behavior, this chapter reveals gross legal inconsistencies between criminal and civil law treatment of adolescent capacity and “consent.” Before one evaluates the efficacy of modern anti-discrimination statutes, most not designed to protect “consenting” teenagers, one should consider the development of civil common law rules that cover similar behavior. These common law claims highlight the importance of capacity and consent. They influenced the development of antidiscrimination law and, perhaps, reveal clues about how jurists exported some traditional and discriminatory attitudes to those new laws.Less
The civil system addresses personal injury, sexual exploitation, and “consent,” among other matters, through common law tort (personal injury) laws or more modern state statutory responses to human interactions. This chapter provides the civil law backdrop for the analysis of how adults, and especially jurists, might use the new information regarding adolescent development and psychosocial maturity. By comparing the varied traditional civil law approaches to juvenile behavior, this chapter reveals gross legal inconsistencies between criminal and civil law treatment of adolescent capacity and “consent.” Before one evaluates the efficacy of modern anti-discrimination statutes, most not designed to protect “consenting” teenagers, one should consider the development of civil common law rules that cover similar behavior. These common law claims highlight the importance of capacity and consent. They influenced the development of antidiscrimination law and, perhaps, reveal clues about how jurists exported some traditional and discriminatory attitudes to those new laws.
Jennifer Ann Drobac
- Published in print:
- 2016
- Published Online:
- September 2016
- ISBN:
- 9780226301013
- eISBN:
- 9780226301150
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226301150.003.0007
- Subject:
- Law, Criminal Law and Criminology
Chapter 7 evaluates the efficacy of modern antidiscrimination law. It explains how Title VII of the 1964 Civil Rights Act never contemplated juvenile workers. State fair employment practices statutes ...
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Chapter 7 evaluates the efficacy of modern antidiscrimination law. It explains how Title VII of the 1964 Civil Rights Act never contemplated juvenile workers. State fair employment practices statutes (FEPS) that often mirror Title VII also fail to address working minors. Under almost all of these statutes, a target’s consent to sex insulates the employer from liability. Because federal and state laws do not account for teen behavior, they prompt odd results in civil courts when jurists conflate adolescent developmental capacity with legal capacity and actual “consent” with legal consent. Antidiscrimination laws, originally implemented to foster equality, now must redress the intersectional biases, power imbalances, and corrupting manipulations of adults who target teenagers. This chapter examines public policy and the application of workplace antidiscrimination law. In particular, Chapter 7 examines the decision in one teenage male’s case to trace how and why the law fails to protect American adolescents adequately.Less
Chapter 7 evaluates the efficacy of modern antidiscrimination law. It explains how Title VII of the 1964 Civil Rights Act never contemplated juvenile workers. State fair employment practices statutes (FEPS) that often mirror Title VII also fail to address working minors. Under almost all of these statutes, a target’s consent to sex insulates the employer from liability. Because federal and state laws do not account for teen behavior, they prompt odd results in civil courts when jurists conflate adolescent developmental capacity with legal capacity and actual “consent” with legal consent. Antidiscrimination laws, originally implemented to foster equality, now must redress the intersectional biases, power imbalances, and corrupting manipulations of adults who target teenagers. This chapter examines public policy and the application of workplace antidiscrimination law. In particular, Chapter 7 examines the decision in one teenage male’s case to trace how and why the law fails to protect American adolescents adequately.
Kenneth W. Simons
- Published in print:
- 2014
- Published Online:
- May 2014
- ISBN:
- 9780198701385
- eISBN:
- 9780191770654
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198701385.003.0014
- Subject:
- Law, Philosophy of Law, Law of Obligations
This chapter analyzes the nature of consensual rationales for precluding tort liability, and explores the relationship between consent to an intentional tort, assumption of risk, and victim ...
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This chapter analyzes the nature of consensual rationales for precluding tort liability, and explores the relationship between consent to an intentional tort, assumption of risk, and victim negligence. Is consent conceptually and normatively distinguishable from assumption of risk? Yes and no: they differ in some respects, but share a common core. Are they equally valid bases for precluding recovery, rather than merely reducing it under comparative fault? Yes: courts justifiably invoke consent more often than assumption of risk, not because the doctrines differ in principle, but because of factual differences between the most common scenarios in which each arises. In paradigm consent scenarios, the two parties mutually benefit from the interaction, or the alleged tortfeasor justifiably relies on the other’s assent, but these features are often absent in assumption of risk scenarios.Less
This chapter analyzes the nature of consensual rationales for precluding tort liability, and explores the relationship between consent to an intentional tort, assumption of risk, and victim negligence. Is consent conceptually and normatively distinguishable from assumption of risk? Yes and no: they differ in some respects, but share a common core. Are they equally valid bases for precluding recovery, rather than merely reducing it under comparative fault? Yes: courts justifiably invoke consent more often than assumption of risk, not because the doctrines differ in principle, but because of factual differences between the most common scenarios in which each arises. In paradigm consent scenarios, the two parties mutually benefit from the interaction, or the alleged tortfeasor justifiably relies on the other’s assent, but these features are often absent in assumption of risk scenarios.
