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.
Jane Stapleton
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199566181
- eISBN:
- 9780191705458
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199566181.003.0049
- Subject:
- Law, Legal History
This chapter argues that the noble cause of comparative law as an intellectual activity is undermined by those who focus on its forensic utility. It examines the practical value to practitioners and ...
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This chapter argues that the noble cause of comparative law as an intellectual activity is undermined by those who focus on its forensic utility. It examines the practical value to practitioners and judges in the court of final appeal in an English-speaking jurisdiction of paying attention to how tort issues are analysed in a different jurisdiction when the subject-matter of the domestic case at hand does not positively require it.Less
This chapter argues that the noble cause of comparative law as an intellectual activity is undermined by those who focus on its forensic utility. It examines the practical value to practitioners and judges in the court of final appeal in an English-speaking jurisdiction of paying attention to how tort issues are analysed in a different jurisdiction when the subject-matter of the domestic case at hand does not positively require it.
Margaret Jane Radin
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691155333
- eISBN:
- 9781400844838
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155333.003.0011
- Subject:
- Law, Company and Commercial Law
This chapter explains how abusive boilerplate could either be treated as a defective product, or else regulated under a new tort of intentional deprivation of basic legal rights. It argues that we ...
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This chapter explains how abusive boilerplate could either be treated as a defective product, or else regulated under a new tort of intentional deprivation of basic legal rights. It argues that we should put boilerplate rights deletion schemes into the legal category—tort law—in which we can actually consider them as products, instead of considering them one at a time as a contract between two individuals. It also highlights boundary the fuzzy and shifting boundary between contracts and torts by focusing on doctrinal border areas such as fraud or misrepresentation, bad faith breach of contract, and warranty. A case study involving implied warranty of habitability in residential leases is presented. The chapter concludes with a comparison of tort and contract remedies, along with the common-law economic loss doctrine.Less
This chapter explains how abusive boilerplate could either be treated as a defective product, or else regulated under a new tort of intentional deprivation of basic legal rights. It argues that we should put boilerplate rights deletion schemes into the legal category—tort law—in which we can actually consider them as products, instead of considering them one at a time as a contract between two individuals. It also highlights boundary the fuzzy and shifting boundary between contracts and torts by focusing on doctrinal border areas such as fraud or misrepresentation, bad faith breach of contract, and warranty. A case study involving implied warranty of habitability in residential leases is presented. The chapter concludes with a comparison of tort and contract remedies, along with the common-law economic loss doctrine.
NEIL DUXBURY
- Published in print:
- 2004
- Published Online:
- January 2010
- ISBN:
- 9780199270224
- eISBN:
- 9780191710384
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199270224.003.0005
- Subject:
- Law, Legal History
This chapter examines the arguments underlying, and the influence of, Pollock’s treatise writing. It explains that like Lord Mansfield, Pollock believed that the law does not consist of particular ...
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This chapter examines the arguments underlying, and the influence of, Pollock’s treatise writing. It explains that like Lord Mansfield, Pollock believed that the law does not consist of particular cases, but of the general principles illustrated and explained in those cases. It discusses that Pollock’s many editions of his two great treatises, Principles of Contract and The Law of Torts, are very much exercises in capturing the principles latent in what are often fragmentary bodies of doctrine. This chapter examines just how Pollock highlights contract and torts through principle.Less
This chapter examines the arguments underlying, and the influence of, Pollock’s treatise writing. It explains that like Lord Mansfield, Pollock believed that the law does not consist of particular cases, but of the general principles illustrated and explained in those cases. It discusses that Pollock’s many editions of his two great treatises, Principles of Contract and The Law of Torts, are very much exercises in capturing the principles latent in what are often fragmentary bodies of doctrine. This chapter examines just how Pollock highlights contract and torts through principle.
Christian Von Bar
- Published in print:
- 1998
- Published Online:
- March 2012
- ISBN:
- 9780198260561
- eISBN:
- 9780191682117
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198260561.003.0005
- Subject:
- Law, EU Law
This chapter considers the position of delict in private law. Within private law delict is most clearly related to contract law; it is at the juncture between them that the most taxing problems of ...
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This chapter considers the position of delict in private law. Within private law delict is most clearly related to contract law; it is at the juncture between them that the most taxing problems of demarcation and co-ordination occur. Even within one national legal system a range of overlaps and intersections arise with both the law of negotiorum gestio (conducting the affairs of another without his authority) and the law of unjust enrichment. Topics discussed include the law of delict and contract law; tort: unauthorized conduct of another's affairs and unjust enrichment; and tort and property law.Less
This chapter considers the position of delict in private law. Within private law delict is most clearly related to contract law; it is at the juncture between them that the most taxing problems of demarcation and co-ordination occur. Even within one national legal system a range of overlaps and intersections arise with both the law of negotiorum gestio (conducting the affairs of another without his authority) and the law of unjust enrichment. Topics discussed include the law of delict and contract law; tort: unauthorized conduct of another's affairs and unjust enrichment; and tort and property law.
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/9780199258826.003.0020
- Subject:
- Law, Legal History
This chapter on the development of tort law in the 19th century covers the uses of tort law, the structure of tort law, the problem of vicarious liability, and the use of juries in tort cases and ...
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This chapter on the development of tort law in the 19th century covers the uses of tort law, the structure of tort law, the problem of vicarious liability, and the use of juries in tort cases and damages awarded.Less
This chapter on the development of tort law in the 19th century covers the uses of tort law, the structure of tort law, the problem of vicarious liability, and the use of juries in tort cases and damages awarded.
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.
Kristin Shrader-frechette General
- Published in print:
- 1993
- Published Online:
- October 2011
- ISBN:
- 9780195074369
- eISBN:
- 9780199852932
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195074369.003.0003
- Subject:
- Philosophy, Philosophy of Science
This chapter argues against the shift in paradigm in favor of scientific evidence in tort law cases. Recent proposals, seeking to require more demanding scientific evidence in toxic tort (and other) ...
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This chapter argues against the shift in paradigm in favor of scientific evidence in tort law cases. Recent proposals, seeking to require more demanding scientific evidence in toxic tort (and other) suits, are mistaken because these seem to impose a universal standard of evidence for quite different institutions—with the risk of distorting existing reasonable tort law relationships, and erring on the side of exclusion rather than admission of evidence. Since the plaintiff bears the burden of production, requiring that this be met by proof equivalent to the criminal law's “beyond a reasonable doubt,” requirement, as some have argued, this substantially distorts the balance of interests between plaintiff and defendant. The appropriate paradigm is not that for scientific practice but the traditional tort law standard of evidence articulated in Ferebee v. Chevron Chemical Co., which said that the appropriate standard is not scientific certainty but “legal sufficiency.” The paradigm of choice in torts is in a sense inclined to retain much of the status quo.Less
This chapter argues against the shift in paradigm in favor of scientific evidence in tort law cases. Recent proposals, seeking to require more demanding scientific evidence in toxic tort (and other) suits, are mistaken because these seem to impose a universal standard of evidence for quite different institutions—with the risk of distorting existing reasonable tort law relationships, and erring on the side of exclusion rather than admission of evidence. Since the plaintiff bears the burden of production, requiring that this be met by proof equivalent to the criminal law's “beyond a reasonable doubt,” requirement, as some have argued, this substantially distorts the balance of interests between plaintiff and defendant. The appropriate paradigm is not that for scientific practice but the traditional tort law standard of evidence articulated in Ferebee v. Chevron Chemical Co., which said that the appropriate standard is not scientific certainty but “legal sufficiency.” The paradigm of choice in torts is in a sense inclined to retain much of the status quo.
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.
Kristin Shrader-frechette General
- Published in print:
- 1993
- Published Online:
- October 2011
- ISBN:
- 9780195074369
- eISBN:
- 9780199852932
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195074369.003.0004
- Subject:
- Philosophy, Philosophy of Science
The chapter addresses a problem that affects both regulatory and tort law efforts to control exposure to carcinogens. What should be done when a disease may be the result of “joint causation”? That ...
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The chapter addresses a problem that affects both regulatory and tort law efforts to control exposure to carcinogens. What should be done when a disease may be the result of “joint causation”? That is, there are two or more possible causes, each of which alone would be sufficient to explain the presence of disease. Tort law has developed a solution to this problem which has recently been adopted by some courts considering toxic torts. However, the problem of joint causation and more general issues raised by causation reveal weaknesses in tort law for compensating victims exposed to toxic substances. Because of these and other problems with tort law, administrative institutions at least in principle may better control human exposure to toxic substances. However, such institutions face enough practical problems that they will not always reliably protect people from toxic substances. In the end, the chapter argues, there are several good reasons for preferring administrative agencies to tort law to provide environmental health protection. However, these theoretical advantages should not blind us to some of the political shortcomings of relying on administrative agencies. For that reason such agencies should not replace tort law, which can continue to serve a backup function to the agencies in our legal system.Less
The chapter addresses a problem that affects both regulatory and tort law efforts to control exposure to carcinogens. What should be done when a disease may be the result of “joint causation”? That is, there are two or more possible causes, each of which alone would be sufficient to explain the presence of disease. Tort law has developed a solution to this problem which has recently been adopted by some courts considering toxic torts. However, the problem of joint causation and more general issues raised by causation reveal weaknesses in tort law for compensating victims exposed to toxic substances. Because of these and other problems with tort law, administrative institutions at least in principle may better control human exposure to toxic substances. However, such institutions face enough practical problems that they will not always reliably protect people from toxic substances. In the end, the chapter argues, there are several good reasons for preferring administrative agencies to tort law to provide environmental health protection. However, these theoretical advantages should not blind us to some of the political shortcomings of relying on administrative agencies. For that reason such agencies should not replace tort law, which can continue to serve a backup function to the agencies in our legal system.
Jules Coleman
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199264124
- eISBN:
- 9780191707698
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199264124.001.0001
- Subject:
- Law, Philosophy of Law
This book expands the argument introduced in the Clarendon Lectures in Law presented at Oxford University in the fall of 1998. It introduces and attempts to sustain two different kinds of arguments; ...
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This book expands the argument introduced in the Clarendon Lectures in Law presented at Oxford University in the fall of 1998. It introduces and attempts to sustain two different kinds of arguments; the aim is not only to defend a range of views of substantive issues in legal theory, but also to vindicate by example a certain methodological approach to such issues — an approach whose fundamental commitments are those of philosophical pragmatism. The book advances three main theses. Part I defends the view that the core of tort law is best understood as embodying the principle of corrective justice. Part II defends a version of inclusive legal positivism. Part III defends what has been called ‘descriptive jurisprudence’.Less
This book expands the argument introduced in the Clarendon Lectures in Law presented at Oxford University in the fall of 1998. It introduces and attempts to sustain two different kinds of arguments; the aim is not only to defend a range of views of substantive issues in legal theory, but also to vindicate by example a certain methodological approach to such issues — an approach whose fundamental commitments are those of philosophical pragmatism. The book advances three main theses. Part I defends the view that the core of tort law is best understood as embodying the principle of corrective justice. Part II defends a version of inclusive legal positivism. Part III defends what has been called ‘descriptive jurisprudence’.
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/9780199258826.003.0021
- Subject:
- Law, Legal History
This chapter discusses the development of the concept of negligence and its place in the law of torts. Topics covered include the birth of negligence, defining negligence, and rethinking negligence.
This chapter discusses the development of the concept of negligence and its place in the law of torts. Topics covered include the birth of negligence, defining negligence, and rethinking negligence.
Fernanda Nicola
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199737512
- eISBN:
- 9780199918638
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199737512.003.0025
- Subject:
- Psychology, Social Psychology
This chapter explores how ideology influences legal change. In particular, it discusses how feminist ideologies, often allied with social conservative ones, have changed how lawyers and judges ...
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This chapter explores how ideology influences legal change. In particular, it discusses how feminist ideologies, often allied with social conservative ones, have changed how lawyers and judges approach interspousal torts. Those changes, though limited in scale, are apparent in doctrine and damage assessments. More generally, they are shaping how our society understands the relationships between men and women. While legal reformers are allowing women's stories of abuse finally to be heard, they tend to hear only stereotypical stories. Those stories are fueling a dispositionist perspective that reinforces stereotyped gender narratives in which women are either helpless victims of abuse or heartless perpetrators of emotional abuse. This dispositionist approach to tort law looks to individual choices and stereotyped narratives to attribute responsibility and blame in a rational and straightforward way, and overlooks the situational influences and constraints of each character in a tort lawsuit.Less
This chapter explores how ideology influences legal change. In particular, it discusses how feminist ideologies, often allied with social conservative ones, have changed how lawyers and judges approach interspousal torts. Those changes, though limited in scale, are apparent in doctrine and damage assessments. More generally, they are shaping how our society understands the relationships between men and women. While legal reformers are allowing women's stories of abuse finally to be heard, they tend to hear only stereotypical stories. Those stories are fueling a dispositionist perspective that reinforces stereotyped gender narratives in which women are either helpless victims of abuse or heartless perpetrators of emotional abuse. This dispositionist approach to tort law looks to individual choices and stereotyped narratives to attribute responsibility and blame in a rational and straightforward way, and overlooks the situational influences and constraints of each character in a tort lawsuit.
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.
William J. Koch, Kevin S. Douglas, Tonia L. Nicholls, and Melanie L. O'Neill
- Published in print:
- 2005
- Published Online:
- May 2009
- ISBN:
- 9780195188288
- eISBN:
- 9780199870486
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195188288.003.0003
- Subject:
- Psychology, Developmental Psychology
This chapter discusses the primary areas of law in which psychological injury is likely to be material and relevant, and in which mental health professionals are likely to find themselves practicing. ...
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This chapter discusses the primary areas of law in which psychological injury is likely to be material and relevant, and in which mental health professionals are likely to find themselves practicing. In particular, it covers tort law (both intentional and negligent), workers' compensation law, antidiscrimination law (sexual harassment, employment discrimination, housing discrimination), and laws governing airline accidents. These areas cover the majority of incidents that might give rise to litigation about psychological injuries, such as motor vehicle and other accidents, criminal victimization, harassment, discrimination, workplace injuries, and a host of other circumstances that might give rise to actions in negligence (e.g., medical malpractice, mishandling of dead bodies, consumer liability).Less
This chapter discusses the primary areas of law in which psychological injury is likely to be material and relevant, and in which mental health professionals are likely to find themselves practicing. In particular, it covers tort law (both intentional and negligent), workers' compensation law, antidiscrimination law (sexual harassment, employment discrimination, housing discrimination), and laws governing airline accidents. These areas cover the majority of incidents that might give rise to litigation about psychological injuries, such as motor vehicle and other accidents, criminal victimization, harassment, discrimination, workplace injuries, and a host of other circumstances that might give rise to actions in negligence (e.g., medical malpractice, mishandling of dead bodies, consumer liability).
Donal Nolan and John Davies
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199661770
- eISBN:
- 9780191778612
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199661770.003.0017
- Subject:
- Law, Law of Obligations, Company and Commercial Law
This chapter discusses the law of torts and equitable wrongs. It covers the basic concepts, cases, and defences for negligence; wrongs actionable concurrently with negligence; strict liability ...
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This chapter discusses the law of torts and equitable wrongs. It covers the basic concepts, cases, and defences for negligence; wrongs actionable concurrently with negligence; strict liability (interference with property rights and breach of fiduciary duty); intentional wrongs; and vicarious liability.Less
This chapter discusses the law of torts and equitable wrongs. It covers the basic concepts, cases, and defences for negligence; wrongs actionable concurrently with negligence; strict liability (interference with property rights and breach of fiduciary duty); intentional wrongs; and vicarious liability.
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.
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:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199532711
- eISBN:
- 9780191705489
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199532711.003.0040
- Subject:
- Law, Legal History
The modern law of torts is dominated by decisions of the House of Lords. In other areas of private law this is not so. Within contract law, for example, the leading cases are frequently those of the ...
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The modern law of torts is dominated by decisions of the House of Lords. In other areas of private law this is not so. Within contract law, for example, the leading cases are frequently those of the Court of Appeal or even first instance judges. Another feature of the law of torts is how many of the leading cases are relatively recent. Again, this hyperactivity in modern times is not the case in other areas, notably the law of contract where many of the leading cases are relatively old. Although the foundations of the law of torts are ancient, the building we currently live in is of very recent construction. It is perhaps unsurprising therefore that the large number of cases over a relatively short period of time has caused the law of torts to be perceived as a ‘mess’. This chapter presents an overview of the cases which the House of Lords has decided in this area.Less
The modern law of torts is dominated by decisions of the House of Lords. In other areas of private law this is not so. Within contract law, for example, the leading cases are frequently those of the Court of Appeal or even first instance judges. Another feature of the law of torts is how many of the leading cases are relatively recent. Again, this hyperactivity in modern times is not the case in other areas, notably the law of contract where many of the leading cases are relatively old. Although the foundations of the law of torts are ancient, the building we currently live in is of very recent construction. It is perhaps unsurprising therefore that the large number of cases over a relatively short period of time has caused the law of torts to be perceived as a ‘mess’. This chapter presents an overview of the cases which the House of Lords has decided in this area.
Hiroshi Oda
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199232185
- eISBN:
- 9780191705335
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199232185.003.0010
- Subject:
- Law, Comparative Law
This chapter discusses Japanese tort law. Topics covered include the development of tort law, general rules of tort law, scope of losses, special provisions on tort liability, joint liability, ...
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This chapter discusses Japanese tort law. Topics covered include the development of tort law, general rules of tort law, scope of losses, special provisions on tort liability, joint liability, remedies, and product liability.Less
This chapter discusses Japanese tort law. Topics covered include the development of tort law, general rules of tort law, scope of losses, special provisions on tort liability, joint liability, remedies, and product liability.
