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This chapter discusses methodology problems arising in cases where similar federal and state constitutional rights claims are raised. Most federal constitutional rights have been incorporated into the federal Constitution's 14th Amendment so as to be applicable to the states. United States Supreme Court interpretations of federal constitutional rights are not binding on state court interpretation of identical or similar state constitutional rights, but state court divergence under these circumstances can raise questions about its legitimacy. A number of questions arise in this context, including for example the proper sequence of arguments, which constitution's rights guarantees should be argued first by counsel, and analyzed first by the state court. The most substantial methodology issue is whether state courts should develop criteria to guide them in deciding whether to interpret identical or similar state constitutional rights to be more protective than the federal analog. The criteria approach is analyzed in some depth, utilizing examples of the use of this methodology in a number of states. The chapter criticizes the use of the criteria approach based on a number of factors that make state court enforcement of state constitutional rights different from the United States Supreme Court's enforcement of the federal bill of rights. The United States Supreme Court's interpretation of federal constitutional rights guarantees is therefore not presumptively correct for the interpretation of state constitutions. The chapter also discusses briefly several other methodological problems, including the direct right of action for money damages under state constitutions, state action, and substantive due process and economic regulation.

This chapter discusses the deterrent force of private enforcement in cases of insider dealing and market manipulation. Private enforcement in the present context means actions in damages by investors who have incurred losses as a result of the perpetration of an abusive scheme involving insider dealing and/or market manipulation. The main focus of the relevant discussion is on the economic analysis of criminal, regulatory, and private means of enforcement in the case of market abuse and the evaluation of their effectiveness in providing investor compensation, administering retribution (offenders’ punishment), and enhancing deterrence. The chapter argues that the accent of any protective regime in the case of insider dealing and market manipulation should be on deterrence, and the objectives of investor compensation and malfeasant’s punishment should primarily serve this purpose. It proposes the introduction of a civil right of action for the offences of insider dealing and market manipulation, as prescribed in Article 1(2) and Articles 2 to 4 of the Market Abuse Directive.

Liability cannot only be based on the violation of an unwritten rule but also on the violation of written, statutory, rule. This chapter shows the relationship between criminal and administrative law (public law) on the one hand and tort law on the other. If a nursery uses banned pesticides, or an engineer installs wires contrary to health and safety rules, or someone builds a house without proper licences, they violate statutory duties. In principle, such a violation gives rise to liability for the damage caused which means that, in all their variety, statutory rules are an important basis for establishing liability. However, the legal systems in Europe deal with this basis for liability in different ways. This chapter looks at how violation of a statutory rule is treated in the legal systems of France, England, and Germany; liability for breach of European Community law, and private right of action.

This chapter discusses the rules governing liability for damage caused by the violation of a statutory rule. It examines the national rules in England, Germany, and France. The first requirement of liability for breach of EU law — the conferment of rights on individuals — is described and illustrated with the Peter Paul case. The chapter also provides some comparative observations, first, between the EU requirement of conferment of rights and the English requirement of a private right of action; second, between the requirement of the scope of the statutory rule and the causation requirement. Finally, the question of whether breach of statutory duty is strict or fault liability is addressed.

This chapter analyses the state’s responsibility to provide a venue for civil recourse (ordinarily, by means of a private right of action). Civil recourse theorists have explained the state’s obligation to provide for private rights of action in terms of social contracts. On this view, the state owes its citizens a means to act against a wrongdoer, given that the state has largely prohibited self-help. Such accounts are discussed along with an alternative to a social contract theory: the state may be a fiduciary to its citizens. Elaborating on the fiduciary account, this chapter suggests the state may have an obligation to provide for private law institutions of a certain type. Notably, part of the state’s responsibility may be to provide private law institutions that facilitate pursuit of those projects that individuals find meaningful. Provision for rights of redress may then be an important component of the state’s fiduciary obligations.

Chapter 9 outlines the legislative reforms that took place in Kentucky from 2000 through 2012. It begins by describing the events that held the attention of the Commonwealth’s citizens during the decade and provides a history of the political landscape of the time. The chapter highlights the major reforms of the 2000s, including legislation related to family courts, racial profiling by law enforcement officers, the restoration of civil rights for convicted felons, and reform of Kentucky’s juvenile justice system. Chapter 9 provides an overview of reforms in the area of domestic violence and rape, including stricter sexual offense statutes, victim notification, a civil right of action for stalking victims, the statutory establishment of rape crisis centers, additional marital rape reforms, victim notification of respondents’ attempts to purchase firearms, and use of global positioning devices with domestic violence offenders.

Tort law enables injury victims to hold tortfeasors responsible for having wrongfully injured them. Yet, somehow, modern torts scholarship has largely obscured the centrality of responsibility to tort law. This chapter aims to remedy that deficiency. It first reviews the impressive effort of Stephen Perry to harness Tony Honoré’s notion of “outcome-responsibility” to supply a satisfactory understanding of tort law. It then demonstrates how notions of responsibility of the sort invoked by Perry help to explain important developments in modern tort doctrine, including the emergence of strict products liability, comparative fault, and robust-yet-limited affirmative duties of care. Finally, it argues that an alternative interpretive account—civil recourse theory—is superior to Perry’s because it, too, places responsibility at the center of tort law, yet gives a better account of prevailing doctrine.