Hazel Carty
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199546749
- eISBN:
- 9780191594946
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546749.001.0001
- Subject:
- Law, Intellectual Property, IT, and Media Law
The economic torts for too long have been under-theorised and under-explored by academics and the judiciary alike. Also in recent years claimants have exploited the resulting chaos by attempting to ...
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The economic torts for too long have been under-theorised and under-explored by academics and the judiciary alike. Also in recent years claimants have exploited the resulting chaos by attempting to use the economic torts in ever more exotic ways. This book attempts to provide practical legal research to both explore the ingredients of all these torts — both the general economic torts (inducing breach of contract, the unlawful means tort, intimidation, the conspiracy torts) and the misrepresentation economic torts (deceit, malicious falsehood, and passing off) — and their rationales. In addition, an optimum framework for these torts is suggested. However, that framework has to take on board the apparent tension within the House of Lords as revealed in the recent decisions in OBG v Allan and Total Network v Revenue. These decisions and the conflict of policy that appears to lie behind them reveal different agendas for the future development of the general economic torts. These agendas are debated (against the background of the growing academic debate) and a coherent approach suggested. As for the misrepresentation torts their potential for development is also discussed and the peril of allowing them to transform into unfair trading or misappropriation torts is explained. The thesis of this book remains that a coherent framework for these torts can best be constructed based on a narrow remit for the common law.Less
The economic torts for too long have been under-theorised and under-explored by academics and the judiciary alike. Also in recent years claimants have exploited the resulting chaos by attempting to use the economic torts in ever more exotic ways. This book attempts to provide practical legal research to both explore the ingredients of all these torts — both the general economic torts (inducing breach of contract, the unlawful means tort, intimidation, the conspiracy torts) and the misrepresentation economic torts (deceit, malicious falsehood, and passing off) — and their rationales. In addition, an optimum framework for these torts is suggested. However, that framework has to take on board the apparent tension within the House of Lords as revealed in the recent decisions in OBG v Allan and Total Network v Revenue. These decisions and the conflict of policy that appears to lie behind them reveal different agendas for the future development of the general economic torts. These agendas are debated (against the background of the growing academic debate) and a coherent approach suggested. As for the misrepresentation torts their potential for development is also discussed and the peril of allowing them to transform into unfair trading or misappropriation torts is explained. The thesis of this book remains that a coherent framework for these torts can best be constructed based on a narrow remit for the common law.
Jaime E. Malamud‐Goti and Lucas Sebastián Grosman
- Published in print:
- 2006
- Published Online:
- May 2006
- ISBN:
- 9780199291922
- eISBN:
- 9780191603716
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199291926.003.0016
- Subject:
- Political Science, International Relations and Politics
Compensation for human rights abuse can be approached from two different perspectives. The first is through principles of tort law, under which the compensation of harm for human rights abuse is no ...
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Compensation for human rights abuse can be approached from two different perspectives. The first is through principles of tort law, under which the compensation of harm for human rights abuse is no different from the compensation of other, ordinary harm. The second is based on principles of administrative compensation, where victims are defined in standardized terms in a statute that provides a relatively fixed, tabulated amount of compensation for all, which is typically smaller than judicial compensation. This paper analyzes the circumstances that justify a shift from the torts to the administrative approach to compensation, and how the two approaches should relate to each other. It addresses the issue of whether victims should have a right to choose between them in the disposition of their cases and, if so, under what conditions. Finally, it compares judicial to administrative compensation in relation to the goals a compensation program must pursue, and argues that even in those cases where administrative compensation offers the best option, it is advisable to leave room for the use of judicial compensation as well.Less
Compensation for human rights abuse can be approached from two different perspectives. The first is through principles of tort law, under which the compensation of harm for human rights abuse is no different from the compensation of other, ordinary harm. The second is based on principles of administrative compensation, where victims are defined in standardized terms in a statute that provides a relatively fixed, tabulated amount of compensation for all, which is typically smaller than judicial compensation. This paper analyzes the circumstances that justify a shift from the torts to the administrative approach to compensation, and how the two approaches should relate to each other. It addresses the issue of whether victims should have a right to choose between them in the disposition of their cases and, if so, under what conditions. Finally, it compares judicial to administrative compensation in relation to the goals a compensation program must pursue, and argues that even in those cases where administrative compensation offers the best option, it is advisable to leave room for the use of judicial compensation as well.
Gerhard Dannemann
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199533114
- eISBN:
- 9780191705526
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533114.003.0007
- Subject:
- Law, Comparative Law, Law of Obligations
This chapter presents an overview of issues of concurrent liability. Topics covered include concurrent liability within unjustified enrichment, unjustified enrichment and contract law, unjustified ...
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This chapter presents an overview of issues of concurrent liability. Topics covered include concurrent liability within unjustified enrichment, unjustified enrichment and contract law, unjustified enrichment and negotiorum gestioun, justified enrichment and tort law, and unjustified enrichment and property law.Less
This chapter presents an overview of issues of concurrent liability. Topics covered include concurrent liability within unjustified enrichment, unjustified enrichment and contract law, unjustified enrichment and negotiorum gestioun, justified enrichment and tort law, and unjustified enrichment and property law.
Robert Stevens
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199211609
- eISBN:
- 9780191705946
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199211609.001.0001
- Subject:
- Law, Law of Obligations
The law of torts is concerned with the secondary obligations generated by the infringement of primary rights. This apparently simple proposition enables us to understand the law of torts (plural) as ...
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The law of torts is concerned with the secondary obligations generated by the infringement of primary rights. This apparently simple proposition enables us to understand the law of torts (plural) as we find it in the common law. A rival (mis-) conception — exemplified judicially by the decision of the House of Lords in Anns v Merton and academically by Oliver Wendell Holmes' The Common Law, is that the law of tort (singular) is concerned with compensating those who suffer loss because of the fault of another. In order to make good the book's major theoretical claim, the detail of legal doctrine, as found within all common law jurisdictions, is carefully examined. Rather than examine each individual tort, as would be done by a textbook, the concepts central to this and other areas of law are subject to scrutiny. The internal map of the law of torts, and where torts belong within the law more generally, is redrawn. The so-called ‘tort of negligence’ must be abandoned as an organising idea. Further, the common law rights we have, one against another, are sourced in our moral, human, or natural rights, not in the pursuit of any social policy or goal. Finally, by comparing the common law with civilian jurisdictions profound structural differences are disclosed, with consequent differences in the outcome of disputes.Less
The law of torts is concerned with the secondary obligations generated by the infringement of primary rights. This apparently simple proposition enables us to understand the law of torts (plural) as we find it in the common law. A rival (mis-) conception — exemplified judicially by the decision of the House of Lords in Anns v Merton and academically by Oliver Wendell Holmes' The Common Law, is that the law of tort (singular) is concerned with compensating those who suffer loss because of the fault of another. In order to make good the book's major theoretical claim, the detail of legal doctrine, as found within all common law jurisdictions, is carefully examined. Rather than examine each individual tort, as would be done by a textbook, the concepts central to this and other areas of law are subject to scrutiny. The internal map of the law of torts, and where torts belong within the law more generally, is redrawn. The so-called ‘tort of negligence’ must be abandoned as an organising idea. Further, the common law rights we have, one against another, are sourced in our moral, human, or natural rights, not in the pursuit of any social policy or goal. Finally, by comparing the common law with civilian jurisdictions profound structural differences are disclosed, with consequent differences in the outcome of disputes.
Robert D. Cooter and Ariel Porat
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691151595
- eISBN:
- 9781400850396
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691151595.001.0001
- Subject:
- Law, Comparative Law
Lawyers, judges, and scholars have long debated whether incentives in tort, contract, and restitution law effectively promote the welfare of society. If these incentives were ideal, tort law would ...
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Lawyers, judges, and scholars have long debated whether incentives in tort, contract, and restitution law effectively promote the welfare of society. If these incentives were ideal, tort law would reduce the cost and frequency of accidents, contract law would lubricate transactions, and restitution law would encourage people to benefit others. Unfortunately, the incentives in these laws lead to too many injuries, too little contractual cooperation, and too few unrequested benefits. This book explains how law might better serve the social good. In tort law, the book proposes that all foreseeable risks should be included when setting standards of care and awarding damages. Failure to do so causes accidents that better legal incentives would avoid. In contract law, the book shows that making a promise often causes the person who receives it to change behavior and undermine the cooperation between the parties. It recommends several solutions, including a novel contract called “anti-insurance.” In restitution law, people who convey unrequested benefits to others are seldom entitled to compensation. Restitution law should compensate them more than it currently does, so that they will provide more unrequested benefits. In these three areas of law, the book demonstrates that better law can promote the well-being of people by providing better incentives for the private regulation of conduct.Less
Lawyers, judges, and scholars have long debated whether incentives in tort, contract, and restitution law effectively promote the welfare of society. If these incentives were ideal, tort law would reduce the cost and frequency of accidents, contract law would lubricate transactions, and restitution law would encourage people to benefit others. Unfortunately, the incentives in these laws lead to too many injuries, too little contractual cooperation, and too few unrequested benefits. This book explains how law might better serve the social good. In tort law, the book proposes that all foreseeable risks should be included when setting standards of care and awarding damages. Failure to do so causes accidents that better legal incentives would avoid. In contract law, the book shows that making a promise often causes the person who receives it to change behavior and undermine the cooperation between the parties. It recommends several solutions, including a novel contract called “anti-insurance.” In restitution law, people who convey unrequested benefits to others are seldom entitled to compensation. Restitution law should compensate them more than it currently does, so that they will provide more unrequested benefits. In these three areas of law, the book demonstrates that better law can promote the well-being of people by providing better incentives for the private regulation of conduct.
Robert Stevens
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199211609
- eISBN:
- 9780191705946
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199211609.003.0001
- Subject:
- Law, Law of Obligations
A commonly held misconception is that the law of torts is concerned with defining those cases where one party may be held liable to compensate another for the loss he has caused through his fault. In ...
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A commonly held misconception is that the law of torts is concerned with defining those cases where one party may be held liable to compensate another for the loss he has caused through his fault. In fact the infringement of rights, not the infliction of loss, is the gist of the law of torts. In judicial decisions and academic writing, injuria and damnum, the wrong and its consequences, the right and the loss, are frequently conflated together. We have a law of torts, not a law of tort, just as we have a law of wrongs, not a law of wrong. This work seeks to demonstrate the importance and truth of conceiving of torts in this two-tiered way.Less
A commonly held misconception is that the law of torts is concerned with defining those cases where one party may be held liable to compensate another for the loss he has caused through his fault. In fact the infringement of rights, not the infliction of loss, is the gist of the law of torts. In judicial decisions and academic writing, injuria and damnum, the wrong and its consequences, the right and the loss, are frequently conflated together. We have a law of torts, not a law of tort, just as we have a law of wrongs, not a law of wrong. This work seeks to demonstrate the importance and truth of conceiving of torts in this two-tiered way.
Jason Ralph
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780199214310
- eISBN:
- 9780191706615
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199214310.003.0002
- Subject:
- Political Science, International Relations and Politics
This chapter examines why legal positivism emphasises the importance of sovereign consent and relates it to the pluralist conception of international society introduced in the previous chapter. This ...
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This chapter examines why legal positivism emphasises the importance of sovereign consent and relates it to the pluralist conception of international society introduced in the previous chapter. This is contrasted with a solidarist conception that identifies sources of law in processes that override the principle of sovereign consent. The chapter also examines the specific and contested role that peremptory norms play in the constitution of international society. Finally, it relates this debate to the contemporary critique of customary international law within American academia and within certain parts of the political and judicial branches of US government. It illustrates this with reference to the debate on the Alien Tort Claims Act and to documents claiming executive privilege in the war on terror.Less
This chapter examines why legal positivism emphasises the importance of sovereign consent and relates it to the pluralist conception of international society introduced in the previous chapter. This is contrasted with a solidarist conception that identifies sources of law in processes that override the principle of sovereign consent. The chapter also examines the specific and contested role that peremptory norms play in the constitution of international society. Finally, it relates this debate to the contemporary critique of customary international law within American academia and within certain parts of the political and judicial branches of US government. It illustrates this with reference to the debate on the Alien Tort Claims Act and to documents claiming executive privilege in the war on terror.
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/9780691151595.003.0013
- Subject:
- Law, Comparative Law
This book has advanced three central claims, each related to a different branch of private law. First, to achieve efficiency under negligence law, all foreseeable risks should be included when ...
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This book has advanced three central claims, each related to a different branch of private law. First, to achieve efficiency under negligence law, all foreseeable risks should be included when setting standards of care and awarding damages. Second, to achieve efficient contracts, the law should respond more to the promisee's incentives for cooperation and reliance. Third, the law should encourage unrequested benefits by making the beneficiaries compensate the benefactors more often, and by reducing the liability of injurers and breaching parties who externalize benefits. In support of these claims, the book has introduced novel principles such as total liability for excessive harm, anti-insurance, decreasing liability contracts, and the public goods theory of restitution. In conclusion, the book proposes three main legal reforms to improve private law in terms of promoting social welfare, such as removing misalignments in tort law or reducing the benefactor's liability for accidents.Less
This book has advanced three central claims, each related to a different branch of private law. First, to achieve efficiency under negligence law, all foreseeable risks should be included when setting standards of care and awarding damages. Second, to achieve efficient contracts, the law should respond more to the promisee's incentives for cooperation and reliance. Third, the law should encourage unrequested benefits by making the beneficiaries compensate the benefactors more often, and by reducing the liability of injurers and breaching parties who externalize benefits. In support of these claims, the book has introduced novel principles such as total liability for excessive harm, anti-insurance, decreasing liability contracts, and the public goods theory of restitution. In conclusion, the book proposes three main legal reforms to improve private law in terms of promoting social welfare, such as removing misalignments in tort law or reducing the benefactor's liability for accidents.
Julie C. Inness
- Published in print:
- 1996
- Published Online:
- November 2003
- ISBN:
- 9780195104608
- eISBN:
- 9780199868247
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195104609.001.0001
- Subject:
- Philosophy, Moral Philosophy
From the Supreme Court to the bedroom, privacy is an intensely contested interest in our everyday lives and privacy law. Some people appeal to privacy to protect such critical areas as abortion, ...
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From the Supreme Court to the bedroom, privacy is an intensely contested interest in our everyday lives and privacy law. Some people appeal to privacy to protect such critical areas as abortion, sexuality, and personal information. Yet, privacy skeptics argue that there is no such thing as a right to privacy. I argue that we cannot abandon the concept of privacy. If we wish to avoid extending this elusive concept to cover too much of our lives or shrinking it to cover too little, we must come to understand it. After exploring the privacy arguments of philosophers and constitutional and tort privacy law, I argue for a new definition of privacy and an explanation of its value that clarifies and resolves many of our conflicts. Privacy is critical because it allows us to protect a realm in which we can have intimate relations with others.Less
From the Supreme Court to the bedroom, privacy is an intensely contested interest in our everyday lives and privacy law. Some people appeal to privacy to protect such critical areas as abortion, sexuality, and personal information. Yet, privacy skeptics argue that there is no such thing as a right to privacy. I argue that we cannot abandon the concept of privacy. If we wish to avoid extending this elusive concept to cover too much of our lives or shrinking it to cover too little, we must come to understand it. After exploring the privacy arguments of philosophers and constitutional and tort privacy law, I argue for a new definition of privacy and an explanation of its value that clarifies and resolves many of our conflicts. Privacy is critical because it allows us to protect a realm in which we can have intimate relations with others.
Christopher Hood, Henry Rothstein, and Robert Baldwin
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780199243631
- eISBN:
- 9780191599507
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199243638.003.0005
- Subject:
- Political Science, Comparative Politics
Explores how far variety amongst risk regulation regimes can be explained by ‘market failure’ explanations of risk regulation. A ‘market failure’ approach assumes that state activity will consist of ...
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Explores how far variety amongst risk regulation regimes can be explained by ‘market failure’ explanations of risk regulation. A ‘market failure’ approach assumes that state activity will consist of the minimal level of intervention needed to correct for specific failures in market or tort‐law processes created by risks—i.e. where the costs of individuals informing themselves about risks or opting out of risks through market or civil law methods are very high. This chapter analyses the market failure characteristics of the nine case‐study risks and then compares theoretical expectations with what is observed in practice. Analysis suggests that ‘market failure’ explanations can go some way in explaining observed regime variety, and certainly take us beyond superficial ideas of the ‘nanny state’ or its converse, but cannot predict a substantial proportion of observed features and paradoxes.Less
Explores how far variety amongst risk regulation regimes can be explained by ‘market failure’ explanations of risk regulation. A ‘market failure’ approach assumes that state activity will consist of the minimal level of intervention needed to correct for specific failures in market or tort‐law processes created by risks—i.e. where the costs of individuals informing themselves about risks or opting out of risks through market or civil law methods are very high. This chapter analyses the market failure characteristics of the nine case‐study risks and then compares theoretical expectations with what is observed in practice. Analysis suggests that ‘market failure’ explanations can go some way in explaining observed regime variety, and certainly take us beyond superficial ideas of the ‘nanny state’ or its converse, but cannot predict a substantial proportion of observed features and paradoxes.
Martin Shapiro
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.003.0003
- Subject:
- Political Science, Comparative Politics
This paper, which was originally published in The Journal of Legal Studies in 1972, is the first of two that examine some of the problems posed by the method of law-making that is associated with the ...
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This paper, which was originally published in The Journal of Legal Studies in 1972, is the first of two that examine some of the problems posed by the method of law-making that is associated with the rule of precedent and the common law doctrine of stare decisis, which is here proposed as a new theory. Shapiro defines stare decisis as loosely meaning the practice of courts in deciding new cases in accordance with precedents, and in the ensuing discussion of the theory, he draws upon insights from both communications theory and previous work of his own on the decision-making process in tort law. He first examines the three branches of communications theory with respect to legal discourse: syntactics (the arrangement, transmission, and receipt of signals or signs, whose key concepts are information, redundancy, and feedback), semantics (the meaning of signals to people), and pragmatics (the impact of signal transmission and human behaviour), and then applies these concepts to the evolution of policy formulation in tort law in the United States and Britain. The survival of stare decisis as the dominant mode of legal discourse, particularly in the area of common law, is explained as its strength in its dual and mutually supporting contents of syntactic and semantic redundancy.Less
This paper, which was originally published in The Journal of Legal Studies in 1972, is the first of two that examine some of the problems posed by the method of law-making that is associated with the rule of precedent and the common law doctrine of stare decisis, which is here proposed as a new theory. Shapiro defines stare decisis as loosely meaning the practice of courts in deciding new cases in accordance with precedents, and in the ensuing discussion of the theory, he draws upon insights from both communications theory and previous work of his own on the decision-making process in tort law. He first examines the three branches of communications theory with respect to legal discourse: syntactics (the arrangement, transmission, and receipt of signals or signs, whose key concepts are information, redundancy, and feedback), semantics (the meaning of signals to people), and pragmatics (the impact of signal transmission and human behaviour), and then applies these concepts to the evolution of policy formulation in tort law in the United States and Britain. The survival of stare decisis as the dominant mode of legal discourse, particularly in the area of common law, is explained as its strength in its dual and mutually supporting contents of syntactic and semantic redundancy.
David Ibbetson
- Published in print:
- 2001
- Published Online:
- February 2010
- ISBN:
- 9780198764113
- eISBN:
- 9780191709852
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198764113.001.0001
- Subject:
- Law, Law of Obligations, Legal History
The English law of obligations has developed over most of the last millennium without any major discontinuity. Through this period each generation has built on the law of its predecessors, ...
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The English law of obligations has developed over most of the last millennium without any major discontinuity. Through this period each generation has built on the law of its predecessors, manipulating it so as to avoid its more inconvenient consequences and adapting it piecemeal to social and economic changes. Sometimes fragments borrowed from other jurisdictions have been incorporated into the fabric of English law; from time to time ideas developed elsewhere have, at least temporarily, imposed a measure of structure on a common law otherwise messy and inherently resistant to any stable ordering. The book exposes the historical layers beneath the modern rules and principles of contract, tort, and unjust enrichment. Small-scale changes caused by lawyers successfully exploiting procedural advantages in their clients' interest are juxtaposed alongside changes caused by friction along the boundaries of these principal legal categories; fossilized remnants of old doctrines jostle with newer ideas in a state of half-consistent tension; loose-knit rules of equity developed in the Chancery infiltrate themselves into more tightly controlled common law structures. The result is a system shot through with inconsistencies and illogicalities, but with the resilience to adapt as necessary to Take account of shifting pressures and changing circumstances.Less
The English law of obligations has developed over most of the last millennium without any major discontinuity. Through this period each generation has built on the law of its predecessors, manipulating it so as to avoid its more inconvenient consequences and adapting it piecemeal to social and economic changes. Sometimes fragments borrowed from other jurisdictions have been incorporated into the fabric of English law; from time to time ideas developed elsewhere have, at least temporarily, imposed a measure of structure on a common law otherwise messy and inherently resistant to any stable ordering. The book exposes the historical layers beneath the modern rules and principles of contract, tort, and unjust enrichment. Small-scale changes caused by lawyers successfully exploiting procedural advantages in their clients' interest are juxtaposed alongside changes caused by friction along the boundaries of these principal legal categories; fossilized remnants of old doctrines jostle with newer ideas in a state of half-consistent tension; loose-knit rules of equity developed in the Chancery infiltrate themselves into more tightly controlled common law structures. The result is a system shot through with inconsistencies and illogicalities, but with the resilience to adapt as necessary to Take account of shifting pressures and changing circumstances.
Michael Lobban
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258826
- eISBN:
- 9780191705168
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258826.003.0024
- Subject:
- Law, Legal History
Traditional tort doctrine taught that a person who intentionally performed an unlawful act which harmed another was liable for the damage suffered. In the second half of the 19th century, judges and ...
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Traditional tort doctrine taught that a person who intentionally performed an unlawful act which harmed another was liable for the damage suffered. In the second half of the 19th century, judges and jurists sought to extend this law, to hold those who performed otherwise lawful acts liable if they had done so with the intention of harming others and with no justification. This development was part of the late 19th-century attempt to put the law of tort on a set of broad, theoretical principles. This chapter discusses malice and intent in early 19th-century law, economic torts, rethinking malice and intent, and rethinking conspiracy.Less
Traditional tort doctrine taught that a person who intentionally performed an unlawful act which harmed another was liable for the damage suffered. In the second half of the 19th century, judges and jurists sought to extend this law, to hold those who performed otherwise lawful acts liable if they had done so with the intention of harming others and with no justification. This development was part of the late 19th-century attempt to put the law of tort on a set of broad, theoretical principles. This chapter discusses malice and intent in early 19th-century law, economic torts, rethinking malice and intent, and rethinking conspiracy.
Cees van Dam
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780199227679
- eISBN:
- 9780191710414
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199227679.001.0001
- Subject:
- Law, EU Law
This is the first introductory text book to European tort law. It brings together national tort law, comparative law, European Union (EU) law, and human rights law, and provides insights into the ...
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This is the first introductory text book to European tort law. It brings together national tort law, comparative law, European Union (EU) law, and human rights law, and provides insights into the differences, commonalities, and mutual influence of the different tort law systems at work in Europe. The book examines the recent attempts for the harmonisation of the various systems of tortious liability by the discovery of a new European ius commune, and looks beyond the creation of ‘common codes’ to ask whether it is possible, or desirable, to converge the national models. The first part of the book provides overviews of the state of affairs of the tort law systems of France, Germany, England, and the EU. Comparisons are made between the rules, the cultures, and the policies of the various systems. The case for a European codification of tort law is discussed. The second part analyses and compares the requirements for liability in the various tort law systems: protected interests, negligence and unlawfulness, breach of statutory duty, stricter rules of liability, causation, damage, damages, and contributory negligence. The final part also assumes a comparative and a supranational point of view and shows how the national and European rules are applied in various ways in a number of categories, such as liability of public bodies, liability for defective products, for motor vehicles, for employees, for children, and for premises and highways.Less
This is the first introductory text book to European tort law. It brings together national tort law, comparative law, European Union (EU) law, and human rights law, and provides insights into the differences, commonalities, and mutual influence of the different tort law systems at work in Europe. The book examines the recent attempts for the harmonisation of the various systems of tortious liability by the discovery of a new European ius commune, and looks beyond the creation of ‘common codes’ to ask whether it is possible, or desirable, to converge the national models. The first part of the book provides overviews of the state of affairs of the tort law systems of France, Germany, England, and the EU. Comparisons are made between the rules, the cultures, and the policies of the various systems. The case for a European codification of tort law is discussed. The second part analyses and compares the requirements for liability in the various tort law systems: protected interests, negligence and unlawfulness, breach of statutory duty, stricter rules of liability, causation, damage, damages, and contributory negligence. The final part also assumes a comparative and a supranational point of view and shows how the national and European rules are applied in various ways in a number of categories, such as liability of public bodies, liability for defective products, for motor vehicles, for employees, for children, and for premises and highways.
Hazel Carty
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199546749
- eISBN:
- 9780191594946
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546749.003.0005
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter explores the history and modern form of this tort. Two key issues surrounding this tort remain controversial as was highlighted by the recent decisions in OBG and Total Network. These ...
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This chapter explores the history and modern form of this tort. Two key issues surrounding this tort remain controversial as was highlighted by the recent decisions in OBG and Total Network. These are the relationship between this tort and the unlawful means tort, and the scope and implications of the two-party version of this tort (and in particular whether a threatened breach of contract should constitute an unlawful threat for this tort). The chapter, therefore, links into the discussion in Chapter 4 and Chapter 7. It argues that the two-party form of this tort does not provide the seed for a general development of two-party economic torts, but rather that two-party liability in the tort of intimidation is a separate area of tort liability, a necessary supplement to existing tort liability.Less
This chapter explores the history and modern form of this tort. Two key issues surrounding this tort remain controversial as was highlighted by the recent decisions in OBG and Total Network. These are the relationship between this tort and the unlawful means tort, and the scope and implications of the two-party version of this tort (and in particular whether a threatened breach of contract should constitute an unlawful threat for this tort). The chapter, therefore, links into the discussion in Chapter 4 and Chapter 7. It argues that the two-party form of this tort does not provide the seed for a general development of two-party economic torts, but rather that two-party liability in the tort of intimidation is a separate area of tort liability, a necessary supplement to existing tort liability.
David B. Sicilia
- Published in print:
- 2004
- Published Online:
- September 2007
- ISBN:
- 9780199251902
- eISBN:
- 9780191719059
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199251902.003.0008
- Subject:
- Business and Management, Business History
This chapter examines the experiences of three US industries — chemical manufacturing, tobacco, and nuclear power — that came under political, legal, and rhetorical attack following World War II, and ...
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This chapter examines the experiences of three US industries — chemical manufacturing, tobacco, and nuclear power — that came under political, legal, and rhetorical attack following World War II, and identifies cross-cutting patterns in the public and private interests who besieged the industries, and in how they responded. At varying times and with few notable exceptions, the conflicts progressed through five stages: industry success and optimism following the war; sustained challenges by social movements; increasing regulatory control by a ‘new social’ regulatory regime in the early 1970s; new, specialized accommodationist public relations strategies and tactics; and involvement in large-scale tort regulation. Unlike most studies of alleged and real corporate malfeasance, this chapter considers both corporate and anti-corporate interests and actions, and suggests a framework for understanding post-World-War-II political economy more broadly.Less
This chapter examines the experiences of three US industries — chemical manufacturing, tobacco, and nuclear power — that came under political, legal, and rhetorical attack following World War II, and identifies cross-cutting patterns in the public and private interests who besieged the industries, and in how they responded. At varying times and with few notable exceptions, the conflicts progressed through five stages: industry success and optimism following the war; sustained challenges by social movements; increasing regulatory control by a ‘new social’ regulatory regime in the early 1970s; new, specialized accommodationist public relations strategies and tactics; and involvement in large-scale tort regulation. Unlike most studies of alleged and real corporate malfeasance, this chapter considers both corporate and anti-corporate interests and actions, and suggests a framework for understanding post-World-War-II political economy more broadly.
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/9780691151595.003.0001
- Subject:
- Law, Comparative Law
This book examines how the law of torts, contracts, and restitution can be improved by showing how private law reduces the cost of accidents, lubricates bargains, and encourages unrequested benefits. ...
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This book examines how the law of torts, contracts, and restitution can be improved by showing how private law reduces the cost of accidents, lubricates bargains, and encourages unrequested benefits. It considers the two pervasive rules of tort law that provide incentives for actors to reduce accident costs: strict liability and negligence. It also explains how contract law achieves effiency through the remedy of damages and how restitution law allows benefactors to recover gains that their beneficiaries wrongfully obtained from them. The book makes three central claims: misalignments in tort law should be removed; in contract law, promisee's incentives should be improved; and the law should recognize some right of compensation for those who produce unrequested benefits. Each claim is based on the desire to reform private law and to make it more effective in promoting social welfare.Less
This book examines how the law of torts, contracts, and restitution can be improved by showing how private law reduces the cost of accidents, lubricates bargains, and encourages unrequested benefits. It considers the two pervasive rules of tort law that provide incentives for actors to reduce accident costs: strict liability and negligence. It also explains how contract law achieves effiency through the remedy of damages and how restitution law allows benefactors to recover gains that their beneficiaries wrongfully obtained from them. The book makes three central claims: misalignments in tort law should be removed; in contract law, promisee's incentives should be improved; and the law should recognize some right of compensation for those who produce unrequested benefits. Each claim is based on the desire to reform private law and to make it more effective in promoting social welfare.
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/9780691151595.003.0002
- Subject:
- Law, Comparative Law
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 ...
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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.Less
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.
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/9780691151595.003.0005
- Subject:
- Law, Comparative Law
This chapter deals with lapses of attention, for example by a driver or a doctor, and explains how a negligence rule gives injurers an incentive to substitute activities with unavoidable accidents ...
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This chapter deals with lapses of attention, for example by a driver or a doctor, and explains how a negligence rule gives injurers an incentive to substitute activities with unavoidable accidents for activities with lapses. Under current tort law, a lapse of attention will always be considered negligence and trigger liability for the resulting harm. However, the chapter shows that it should not be the case. After providing an overview of lapse defenses in prevailing law, the chapter examines the openness of liability law to the lapse defense and some activities that substitute unavoidable harm for lapses. It also explains how a lapse defense is implemented and shows how the lapse defense dampens inefficient substitution and increases collection of supporting information.Less
This chapter deals with lapses of attention, for example by a driver or a doctor, and explains how a negligence rule gives injurers an incentive to substitute activities with unavoidable accidents for activities with lapses. Under current tort law, a lapse of attention will always be considered negligence and trigger liability for the resulting harm. However, the chapter shows that it should not be the case. After providing an overview of lapse defenses in prevailing law, the chapter examines the openness of liability law to the lapse defense and some activities that substitute unavoidable harm for lapses. It also explains how a lapse defense is implemented and shows how the lapse defense dampens inefficient substitution and increases collection of supporting information.
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/9780691151595.003.0007
- Subject:
- Law, Comparative Law
This chapter deals with the problem of providing efficient incentives for the promisor and promisee simultaneously and repurposes the model of torts in a way that unifies tort law and contract law. ...
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This chapter deals with the problem of providing efficient incentives for the promisor and promisee simultaneously and repurposes the model of torts in a way that unifies tort law and contract law. In the basic torts model, the injurer and the victim can reduce the probability and severity of accidents by taking precautions. “Precaution” against accidents can be reinterpreted to fit contracts and other bodies of law. The chapter first considers forms of precaution and the paradox of compensation, showing that compensating victims is often inconsistent with double responsibility at the margin that is required in efficient incentives. It then examines three mechanisms that allow liability law to combine compensation and incentives for efficient precaution: the fault rule, invariant damages, and a coercive order from a court, such as an injunction against a nuisance.Less
This chapter deals with the problem of providing efficient incentives for the promisor and promisee simultaneously and repurposes the model of torts in a way that unifies tort law and contract law. In the basic torts model, the injurer and the victim can reduce the probability and severity of accidents by taking precautions. “Precaution” against accidents can be reinterpreted to fit contracts and other bodies of law. The chapter first considers forms of precaution and the paradox of compensation, showing that compensating victims is often inconsistent with double responsibility at the margin that is required in efficient incentives. It then examines three mechanisms that allow liability law to combine compensation and incentives for efficient precaution: the fault rule, invariant damages, and a coercive order from a court, such as an injunction against a nuisance.
