Tort Law and Redress

2020 ◽  
pp. 110-138
Author(s):  
Andrew S. Gold
Keyword(s):  
Tort Law ◽  
Punitive Damages ◽  
Private Law

This chapter indicates how the justice in redress covers various tort remedies, including some that are considered hard to explain as reversals of transactions. A key step in the argument is to recognize that there is still justice where wrongs are partially reversed, and not solely in cases where wrongs are fully (or almost fully) reversed. At the same time, remedies such as nominal damages or punitive damages are more difficult to fit into a redress-based model. This chapter explains the extent to which this is a challenge. It also shows how such concerns are explicable within a pluralist picture of private law.

Introduction

2014 ◽  
Author(s):  
Robert D. Cooter ◽  
Ariel Porat
Keyword(s):  
Social Welfare ◽  
Strict Liability ◽  
Tort Law ◽  
Contract Law ◽  
Private Law ◽  
The Law ◽  
The Cost

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.

Liability and Climate Change

2019 ◽  
Author(s):  
Michael Faure ◽  
Marjan Peeters
Keyword(s):  
Climate Change ◽  
Greenhouse Gases ◽  
Greenhouse Gas ◽  
Law And Economics ◽  
Criminal Liability ◽  
Tort Law ◽  
Public Law ◽  
Greenhouse Gas Mitigation ◽  
Private Law ◽  
Court System

In view of the need to curb greenhouse gases, the question arises as to the functions of liability in providing effective incentives for emitters in order to change their behavior. Liability for emitting greenhouse gases exists (or can exist) in the area of public law and private law and can be subdivided into international, administrative, and criminal liability (public law liabilities) and tort law liability (private law liability). Actions for holding individual and legal persons (such as states, authorities, and companies) liable can, depending on the specific jurisdiction, be triggered by citizens but also by legal persons, such as authorities, companies, and non-governmental organizations (NGOs), particularly environmental NGOs. The central question in this article is how climate liability is arranged under public law and whether there would be any role for climate liability to play under private law, thereby applying a legal and economic methodology. That so-called law and economics doctrine is a useful approach as it has given a lot of attention, for example, to the different functions of specific legal instruments (more particularly regulation, including taxation and emissions trading and tort law liability) for mitigating greenhouse gases. Meanwhile, in practice, various examples can be identified whereby tort law liability is used as a complement to greenhouse gas regulation. This specific use of tort liability is analyzed in the light of the law and economics literature, thereby pointing at prospects but also at remaining core questions. The success of tort law actions will most likely greatly depend on the (lack of) ambition vested into the emissions regulations at international and national levels. One of the exciting questions for the near future is to what extent judges feel able to step into the regulation of the climate change problem, in an ex ante way. The most difficult cases are obviously those where a regulatory system concerning greenhouse gas mitigation has been put in place and where the court system is strong, but where particular groups consider the regulations to be insufficient.

The Public Life of Private Law: Tort Law as a Risk Regulation Mechanism

2018 ◽  
Vol 9 (1) ◽  
pp. 48-65 ◽  
Author(s):  
Douglas A KYSAR
Keyword(s):  
Environmental Health ◽  
Health And Safety ◽  
Tort Law ◽  
Regulation Mechanism ◽  
Private Law ◽  
Environmental Health And Safety ◽  
Risk Regulation ◽  
Safety Risks ◽  
Tort System ◽  
History Of

AbstractAgainst the backdrop of contemporary climate change lawsuits, this article presents preliminary research findings regarding a remarkable and underappreciated moment in the common law pre-history of modern environmental, health, and safety regulation. The findings complicate the conventional academic story about the limited capabilities of tort law and its inevitable displacement by more institutionally robust and sophisticated forms of regulation. Section I offers a brief introduction, followed in Section II by a review of existing academic literature on the pros and cons of utilising tort law as a regulatory device. As will be seen, the consensus view seems to be that tort law is a clumsy and imperfect mechanism for addressing most environmental, health, and safety risks. Section III argues that the debate over tort law’s potential as a risk regulation mechanism ignores the distinctively private law history and character of that body of law, essentially asking tort to serve a purpose for which it was neither intended nor designed. Section IV then presents a case study of nuisance litigation in which the tort system achieves a remarkable and underappreciated risk regulation effect precisely by focusing narrowly on the traditional task of adjudicating alleged wrongs between private parties. Section V concludes.

Private law and the environment: nuisance in context

Legal Studies ◽  
1995 ◽  
Vol 15 (2) ◽  
pp. 236-259 ◽  
Author(s):  
Jenny Steele
Keyword(s):  
Environmental Change ◽  
Environmental Law ◽  
Tort Law ◽  
The Other ◽  
Private Law ◽  
Positive Potential ◽  
Law And Policy ◽  
Central Elements ◽  
The Face ◽  
Environmental Law And Policy

Private nuisance is, on the face of it, an old-fashioned tort, whose agrarian, antidevelopmental roots may make its contemporary relevance seem limited. On the other hand, both nuisance and Rylands v Fletcher hold obvious attractions for litigants whose interests have suffered as a result of environmental change. The potential apotheosis of nuisance into a ‘Toxic Tort’ presents tort lawyers and environmental lawyers with a number of pressing questions concerning the nature and scope of private law in this context.This article will seek to assess in outline the positive potential of tort law in this respect, but it will also be argued that there may nevertheless be real conflicts between the law of tort and central elements of environmental law. The nature of those potential conflicts can only be understood if we clarify the form (or forms) of liability effected by relevant torts, and here the tort of nuisance poses particular problems. Once clarified, however, I would suggest that these conflicts can contribute to debates, not just about tort law, but also about the basic aspirations of environmental law and policy.

scholarly journals Dano moral por inadimplemento do contrato

2020 ◽  
pp. 293-309
Author(s):  
Pedro Ricardo Serpa
Keyword(s):  
Detailed Analysis ◽  
Tort Law ◽  
Private Law ◽  
Recent Past ◽  
Breach Of Contract ◽  
The One

RESUMOUm dos temas de Direito Privado que adquiriu maior relevância no passado recente é aquele atinente à responsabilidade civil; podendo-se destacar, desse grande tema, as questões relacionadas aos danos morais. Nesta seara, questão que ainda está a merecer análise mais detida por parte da doutrina nacional é justamente aquela relacionada à indenização por danos morais decorrentes do inadimplemento do contrato.PALAVRAS-CHAVEResponsabilidade Civil. Dano moral. Inadimplemento do contrato.ABSTRACTOne of the Private Law´s subjects that had increased in relevance in the recent past is the one regarding tort Law, of which one may highlight the matters related to non-pecuniary damages. In that subject, a matter that still deserves a more detailed analysis by the national doctrine is exactly the one related to the non-pecuniary damages from contractual non-performance.KEYWORDSLaw of torts. Non-pecuniary damages. Breach of contract.

scholarly journals Private Law Liability for Faulty ICT

2020 ◽  
pp. 219-234
Author(s):  
Mireille Hildebrandt
Keyword(s):  
Strict Liability ◽  
Tort Law ◽  
Third Party ◽  
Private Law ◽  
Emotional Harm ◽  
Fault Liability

This chapter considers instances where ICT applications cause physical, material, economic, or emotional harm, with a focus on third party liability or tort law. The chapter should be read as an important example of how private law liability may step in to deter the development, sale, or usage of faulty ICT. It discusses the relevant legal conditions of damage, causation, fault liability, and strict liability, ending with questions around compensation and deterrence as the overarching goals of tort law.

The Fiduciary Duty of Care

2019 ◽  
pp. 403-418 ◽  
Author(s):  
John C. P. Goldberg
Keyword(s):  
Tort Law ◽  
Fiduciary Duty ◽  
Duty Of Care ◽  
Private Law ◽  
Fiduciary Duties ◽  
Distinctive Features ◽  
Duty Of Loyalty

Fiduciary duties of care are at once familiar and strange. They partake of many of the characteristics of duties of care in other domains of private law, particularly tort law. But they also bear the distinctive marks of the fiduciary context. This chapter identifies two ways in which fiduciary duties of care tend to be distinct from tort duties of care. First, with some important exceptions, they are less demanding and less vigorously enforced. Second, breaches of the fiduciary duty of care can give rise to liability even if no injury results to the beneficiary. These distinctive features, the chapter argues, reflect judicial efforts to harmonize the fiduciary’s duty of care with her duty of loyalty. As such, they are defensible, even if not in all respects justified.

Remedies

2020 ◽  
pp. 562-574
Author(s):  
Samuel L. Bray
Keyword(s):  
United States ◽  
The United States ◽  
Punitive Damages ◽  
Private Law ◽  
Judicial Process ◽  
Specific Performance ◽  
The Law ◽  
Substantive Law

This chapter describes the law of remedies, which has an independent and relatively coherent existence. It is available to be cross-referenced by the substantive law. This characteristic of remedies as a relatively cohesive body of law, which can be accessed by other bodies of law, is not unusual but is rather an aspect of law’s systematicity. The chapter then outlines the remedies available in private law in the United States. It looks at several themes that are developed in the New Private Law, including the systematicity of law, the distinctiveness of private law, the use of internal and external perspectives on the law, the centrality of the judicial process in the award of a remedy, and the continuing significance of the law of equity. The chapter also considers the competing rationales offered for private law remedies, emphasizing as primary that the defendant is restoring the plaintiff to the plaintiff’s rightful position. It also sketches how contract and tort achieve that goal, primarily through the development of measures and limiting principles. Moreover, the chapter introduces the panoply of remedies offered by equity, such as the injunction, specific performance, equitable rescission, accounting, and constructive trust. Finally, it introduces anomalies: statutory damages, punitive damages, and declaratory judgments.

On the Idea of Private Law

1996 ◽  
Vol 9 (2) ◽  
pp. 235-277 ◽  
Author(s):  
Martin Stone
Keyword(s):  
Tort Law ◽  
Private Law ◽  
Legal Duty

This essay endeavors to comment on the main themes of Ernest J. Weinrib’sThe Idea of Private Law. Weinrib’s primary example of private law, and the example I shall pursue here, is tort law. In a typical torts case, the plaintiff complains that he has been injured as the proximate result of the wrongdoing (usually the negligence) of the defendant. This, the plaintiff says, is a breach of legal duty for which the defendant is liable. Questions about the foundations of tort law are questions about the significance of the terms in this story and about why, when it is proven that a transaction characterizable in these terms has occurred, the plaintiff is entitled to what he asks for, namely, compensation.

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