scholarly journals THE FAILURE OF UNIVERSAL THEORIES OF TORT LAW

Legal Theory ◽  
2015 ◽  
Vol 21 (2) ◽  
pp. 47-85 ◽  
Author(s):  
James Goudkamp ◽  
John Murphy
Keyword(s):  
Common Law ◽  
Economic Loss ◽  
Tort Law ◽  
The United States ◽  
Corrective Justice ◽  
Pure Economic Loss ◽  
The United Kingdom ◽  
Lack Of Fit ◽  
The Common ◽  
The Law

ABSTRACTMany scholars have offered theories that purport to explain the whole of the law of torts. At least some of these theories do not seem to be specific to a single jurisdiction. Several appear to endeavor to account for tort law in at least the major common law jurisdictions or even throughout the common law world. These include Ernest Weinrib's corrective justice theory, Robert Stevens's rights theory, and Richard Posner's economic theory. This article begins by explaining why it is appropriate to understand these three theories as universal theories of tort law and why it is important that they be so understood. This explanation draws upon various overt claims (or other strong intimations) made by the theorists themselves to the effect that this is how their respective accounts should be understood. The article then proceeds to test these theories, all of which are leading accounts of tort law, against the evidence in Australia, Canada, the United Kingdom, and the United States. The parts of tort law on which we focus are (1) the breach element of the action in negligence, (2) the law that determines when a duty of care will be owed in respect of pure economic loss, (3) the law that governs the availability of punitive damages, (4) the defense of illegality, and (5) the rule in Rylands v. Fletcher and its descendants. The article concludes that none of the theories is a satisfactory universal account of tort law. All of them suffer from significant problems of fit in that they cannot accommodate (often even approximately) the areas of law that we discuss. Although each of the theories contains a great many valuable insights, they all nonetheless fall well short of accomplishing that which they are held out as providing. In the course of this analysis, the article explains why this is an appropriate line of criticism and identifies the degree of lack of fit that we regard as being “significant.”

Liability of the State and Public Authorities in Israel and South Africa

2013 ◽  
pp. 1-47
Author(s):  
Max Loubser ◽  
Tamar Gidron
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Economic Loss ◽  
Tort Law ◽  
Public Authority ◽  
The South ◽  
Public Authorities ◽  
Pure Economic Loss ◽  
The Law

Both the Israeli and the South African legal systems are classified as mixed legal systems, or mixed jurisdictions. In Israel, tort law was originally pure English common law, adopted by legislation and later developed judicially. In South Africa, the law of delict (tort) was originally Roman-Dutch but was later strongly influenced by the English common law. Under both systems, tort law is characterized by open-ended norms allowing extensive judicial development. This paper traces and compares the structural basis, methodology, policy, and trends of the judicial development of state and public-authority liability in the Israeli and South African jurisdictions. Specific factors that have impacted the development of state- and public-authority liability are: (1) constitutional values, (2) the courts’ recognition of the need for expanded protection of fundamental human rights and activism towards achieving such protection, (3) the multicultural nature of the societies, (4) problems of crime and security, and (5) worldwide trends, linked to consumerism, toward the widening of liability of the state and public authorities.Within essentially similar conceptual structures the South African courts have been much more conservative in their approach to state liability for pure economic loss than their Israeli counterparts. This can perhaps be attributed to a sense of priorities. In a developing country with huge disparities in wealth, the courts would naturally be inclined to prioritize safety and security of persons above pure economic loss. The South African courts have been similarly more conservative in cases involving administrative negligence and evidential loss.The development of the law on state and public-authority liability in Israel and South Africa is also the product of factors such as the levels of education, the effectiveness of the public service, and the history and pervasiveness of constitutional ordering. Despite important differences, the law in the two jurisdictions has developed from a broadly similar mixed background; the courts have adopted broadly similar methods and reasoning; and the outcomes show broadly similar trends.

Illegal Earnings

2018 ◽  
Vol 9 (1) ◽  
pp. 54-80
Author(s):  
James Goudkamp ◽  
Lorenz König
Keyword(s):  
United Kingdom ◽  
Common Law ◽  
Tort Law ◽  
Contract Law ◽  
Private Law ◽  
The United Kingdom ◽  
Considerable Promise ◽  
The Subject ◽  
The Common ◽  
The Law

AbstractThis article addresses the principles of tort law that govern claims in respect of lost illegal earnings. It focuses on common law jurisdictions (and the law in the United Kingdom in particular) where such claims, despite apparently being commonplace, have been largely ignored by academics. It describes the existing law and calls in aid in this regard a four-fold taxonomy of cases. The article then turns attention to how claims in respect of lost illegal earnings ought to be decided. At this juncture, the article looks to ideas emanating from German tort law, which has developed a highly sophisticated jurisprudence on the subject of illegal earnings. The German approach, stated simply, requires tort law to defer to rules in other departments of private law. If, for example, contract law would not protect an interest that a claimant has in a particular transaction by reason of the transaction being tainted with illegality, tort law will not allow a claimant indirectly to obtain the benefits of that transaction via a claim for lost illegal earnings. It is argued that the German solution holds considerable promise and merits consideration as a serious alternative to the significantly more complicated principles that the common law courts have developed, which principles currently lack any thoroughgoing rationalisation.

Torts and Other Wrongs

2019 ◽  
pp. 1-26
Author(s):  
John Gardner
Keyword(s):  
United States ◽  
New Zealand ◽  
Common Law ◽  
Tort Law ◽  
The United States ◽  
Common Cause ◽  
England And Wales ◽  
The Common ◽  
The Law

This chapter focuses on the law of torts, not in the United States, but in other major common law jurisdictions (England and Wales, Canada, Australia, and New Zealand) in which tort cases are normally adjudicated by judges sitting without juries. It considers the so-called classical interpretation of the common law of torts by John Goldberg and Ben Zipursky, and how they tend to equivocate on an important point of law in a way that puts them at odds with some writers with whom they would do better to make common cause. It suggests that this equivocation is where the law of the United States parts company with the law in the rest of the common law world. The problem, an English lawyer might then teasingly say, is with American tort law rather than with the Goldberg and Zipursky rendition of it.

scholarly journals Tortious liability for pure economic loss

1979 ◽  
Author(s):  
Ευστάθιος Μπανάκας
Keyword(s):  
Economic Loss ◽  
West Germany ◽  
Pure Economic Loss ◽  
Legal Traditions ◽  
Different Types ◽  
The Subject ◽  
The Common ◽  
The Law ◽  
Comparative Examination ◽  
Individual Style

Financial harm may be caused in many different ways. It can be said that it appears in several different ’’types", each produced in distinct factual circumstances. Different "types" of financial harm may demand a different treatment by the law. The considerations that ought to determine the policy of the law vary together with the factual . circumstances, in which each particular type offinancial harm becomes manifested. Thence the need for a separate examination of the major, or "generic", types of such harm, a need that has already been - detected by Comparative lawyers writing on the subject.(20) The present study will concentrate on the problem ' of financial harm that is not the product of a harmful intention (21) . In the Common Law of Negligence this problem is known as the "pure economic loss" problem. The solutions given to it by English Law are compared to the solutions of the French Law of Torts, and to those of the law of Torts of the German Federal Republic (West Germany)(22). The compared Tort systems not only are leadingthe major legal traditions of our age, each employing its own individual "style" (23), but, also, operate in virtually similar social and economic environments. This should allow the comparison to expose more easily the true merits of any "stylistic" idiosyncrasies, thatthey might possess in this particular connection. The problem of pure economic, loss caused by erroneous advice or information is not examined in * detail in the present study. It has been already the subject of comprehensive Comparative examination (24).

The Diffuse and Second Look Models of Judicial Review

2021 ◽  
pp. 23-34
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Latin America ◽  
Judicial Review ◽  
Common Law ◽  
The United States ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Second Look ◽  
The Common

This chapter examines the two models of judicial review that exist in the common law countries: the Diffuse Model and the Second Look Model. The Diffuse Model of judicial review originated in the United States and has spread to India, Canada, Australia, the United Kingdom, most of the countries of Latin America, the Scandinavian countries (except for the Netherlands), and Japan. It is premised on the idea that a country’s written constitution is its supreme law and that courts, when deciding cases or controversies that are properly before them, are thus duty-bound to follow the constitution, which is supreme law, and not a contrary statute whenever those two items conflict. Meanwhile, the essence of the Second Look Model of judicial review is that a Supreme or Constitutional Court ought to have the power of judicial review, subject to some kind of legislative power of override. This, it is said, best harmonizes the advantages of a written constitution and a bill of rights enforced by courts with the imperatives of democratic self-government. The underlying goal is to obtain the advantages of both constitutional government and also of democratic government.

Personalized Legal Areas

2021 ◽  
pp. 61-84
Author(s):  
Omri Ben-Shahar ◽  
Ariel Porat
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Tort Law ◽  
Contract Law ◽  
Standards Of Care ◽  
Criminal Sanctions ◽  
The Common ◽  
The Law

This chapter illustrates personalized law “in action” by examining it in three areas of the law: standards of care under the common law tort doctrine of negligence, mandated consumer protections in contract law, and criminal sanctions. In each area, the chapter examines personalization of commands along several dimensions. In tort law, standards of care could vary according to each injurer’s riskiness and skill, to reduce the costs of accidents. In contract law, mandatory protections could vary according to the value they provide each consumer and differential cost they impose on firms, to allocate protections where, and only where, they are justified. And in criminal law, sanctions would be set based on what it takes to deter criminals, accounting for how perpetrators differ in their motives and likelihood of being apprehended, with the potential to reduce unnecessary harsh penalties.

The Law of Personal Status: Wives, Paupers, and Slaves

2019 ◽  
pp. 173-212
Author(s):  
Lawrence M. Friedman
Keyword(s):  
United States ◽  
Civil Rights ◽  
Common Law ◽  
White Men ◽  
The United States ◽  
Political Rights ◽  
Poor Laws ◽  
Marriage And Divorce ◽  
The Common ◽  
The Law

This chapter discusses the law on marriage and divorce, family property, adoption, poor laws and social welfare, and slavery and African Americans in the United States. In the colonial period, the United States had no courts to handle matters of marriage and divorce. Marriage was a contract—an agreement between a man and a woman. Under the rules of the common law, the country belonged to the whites; and more specifically, it belonged to white men. Women had civil rights but no political rights. There were no formal provisions for adoption. A Massachusetts law, passed in 1851, was one of the earliest, and most significant, general adoption law. The so-called poor laws were the basic welfare laws.

14. Deceit

2013 ◽  
Author(s):  
Simon Deakin ◽  
Angus Johnston ◽  
Basil Markesinis
Keyword(s):  
Eighteenth Century ◽  
Common Law ◽  
Economic Loss ◽  
Physical Damage ◽  
False Statement ◽  
Pure Economic Loss ◽  
House Of Lords ◽  
The Common ◽  
Modern Form

This chapter discusses the tort of deceit. The common-law rules concerning liability for dishonesty were synthesised to create the tort of deceit at the end of the eighteenth century in Pasley v. Freeman, and the tort takes its modern form from the decision of the House of Lords in Derry v. Peek in 1889. Most of the cases concern non-physical damage, that is to say, financial or pure economic loss, although the tort can also extend to cover personal injuries and damage to property. The requirements of liability are as follows: the defendant must make a false statement of existing fact with knowledge of its falsity and with the intention that the claimant should act on it, with the result (4) that the claimant acts on it to his detriment.

Defaming the Dead

2017 ◽  
Author(s):  
Don Herzog
Keyword(s):  
Common Law ◽  
Tort Law ◽  
Dead Person ◽  
The Common ◽  
The Dead ◽  
The Law ◽  
The Way

If you defame the dead, even someone who recently died, tort law does not think that’s an injury: not to the grieving survivors and not to the dead person. This book argues that defamation is an injury to the recently dead. It explores history, including the shaping of the common law, and offers an account of posthumous harm and wrong. Along the way, it offers a sustained exploration of how we and the law think about corpse desecration.

scholarly journals LAW'S EMPIRE: ENGLISH LEGAL CULTURES AT HOME AND ABROAD

2005 ◽  
Vol 48 (1) ◽  
pp. 295-303 ◽  
Author(s):  
MARGOT C. FINN
Keyword(s):  
Social History ◽  
Legal History ◽  
Common Law ◽  
Early Modern Period ◽  
Legal Culture ◽  
The United States ◽  
Cambridge University ◽  
Legal Norms ◽  
The Common ◽  
The Law

The common law tradition: lawyers, books and the law. By J. H. Baker. London: Hambledon, 2000. Pp. xxxiv+404. ISBN 1-85285-181-3. £40.00.Lawyers, litigation and English society since 1450. By Christopher W. Brooks. London: Hambledon, 1998. Pp. x+274. ISBN 1-85285-156-2. £40.00.Professors of the law: barristers and English legal culture in the eighteenth century. By David Lemmings. Oxford: Oxford University Press, 2000. Pp. xiv+399. ISBN 0-19-820721-2. £50.00.Industrializing English law: entrepreneurship and business organization, 1720–1844. By Ron Harris. Cambridge: Cambridge University Press, 2000. Pp. xvi+331. ISBN 0-521-66275-3. £37.50.Between law and custom: ‘high’ and ‘low’ legal cultures in the lands of the British Diaspora – the United States, Canada, Australia, and New Zealand, 1600–1900. By Peter Karsten. Cambridge: Cambridge University Press, 2002. Pp. xvi+560. ISBN 0-521-79283-5. £70.00.The past few decades have witnessed a welcome expansion in historians' understanding of English legal cultures, a development that has extended the reach of legal history far beyond the boundaries circumscribed by the Inns of Court, the central tribunals of Westminster, and the periodic provincial circuits of their judges, barristers, and attorneys. The publication of J. G. A. Pocock's classic study, The ancient constitution and the feudal law, in 1957 laid essential foundations for this expansion by underlining the centrality of legal culture to wider political and intellectual developments in the early modern period. Recent years have seen social historians elaborate further upon the purchase exercised by legal norms outside the courtroom. Criminal law was initially at the vanguard of this historiographical trend, and developments in this field continue to revise and enrich our understanding of the law's pervasive reach in British culture. But civil litigation – most notably disputes over contracts and debts – now occupies an increasingly prominent position within the social history of the law. Law's empire, denoting the area of dominion marked out by the myriad legal cultures that emanated both from parliamentary statutes and English courts, is now a far more capacious field of study than an earlier generation of legal scholars could imagine. Without superseding the need for continued attention to established lines of legal history, the mapping of this imperial terrain has underscored the imperative for new approaches to legal culture that emphasize plurality and dislocation rather than the presumed coherence of the common law.

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