Moralizing Risk

2017 ◽  
Author(s):  
John Oberdiek
Keyword(s):  
Tort Law ◽  
Complex Task ◽  
Reasonable Person ◽  
Moral Context

Chapter 2 takes up the complex task of formulating a conception of risk that can meet the twin desiderata of practicality and normativity. Though neither an unreconstructed subjective nor objective account of risk can, on its own, play the role we need it to play in a moral context, the accounts can be combined to take advantage of their respective strengths. Much of the chapter is therefore devoted to explaining how to overcome this recalibrated perspective-indifference. The chapter defends the perspective of a particular interpretation of the reasonable person, well-known from tort law, as a way of bringing determinacy to the characterization of risk. Defending this evidence-relative perspective while criticizing competing belief- and fact-relative perspectives, the chapter argues that it has the resources to meet the twin desiderata of practicality and normativity.

ALBIS

2013 ◽  
pp. 188-206
Author(s):  
Lerina Aversano ◽  
Carmine Grasso ◽  
Maria Tortorella
Keyword(s):  
Information Retrieval ◽  
Software Maintenance ◽  
Business Processes ◽  
Semantic Analysis ◽  
Software Systems ◽  
Complex Task ◽  
Process Performance ◽  
Definition Of ◽  
Support Software

The evaluation of the alignment level existing between a business process and the supporting software systems is a critical concern for an organization, as the higher the alignment level is, the better the process performance is. Monitoring the alignment implies the characterization of all the items it involves and definition of measures for evaluating it. This is a complex task, and the availability of automatic tools for supporting evaluation and evolution activities may be precious. This chapter presents the ALBIS Environment (Aligning Business Processes and Information Systems), designed to support software maintenance tasks. In particular, the proposed environment allows the modeling and tracing between business and software entities and the measurement of their alignment degree. An information retrieval approach is embedded in ALBIS based on two processing phases including syntactic and semantic analysis. The usefulness of the environment is discussed through two case studies.

Liability in negligence of the mentally ill

2016 ◽  
Vol 45 (4) ◽  
pp. 366-374
Author(s):  
Maria Orchard
Keyword(s):  
Mental Illness ◽  
Mentally Ill ◽  
Essential Element ◽  
Personal Characteristics ◽  
Standard Of Care ◽  
Tort Law ◽  
Duty Of Care ◽  
Reasonable Person ◽  
Objective Standard ◽  
Court Of Appeal

An essential element of the tort of negligence is the duty of care, which is measured by the objective standard of a reasonable person and does not take into account a defendant’s personal characteristics. In Dunnage v Randall, the Court of Appeal was tasked with deciding whether a person’s mental illness should be considered when defining the appropriate standard of care. The court held that the deceased, an undiagnosed paranoid schizophrenic who set himself on fire, was subject to the objective standard, breached his duty by failing to act with reasonable care and was therefore liable for the burns his nephew sustained while attempting to prevent the incident. The court further found that a defendant can only escape liability for negligently caused injury if their mental illness entirely eliminates responsibility, thus articulating a strict approach towards the liability in tort of persons suffering from mental illness. As this comment will discuss, the Dunnage decision is a handy illustration of the basic tenets of the tort of negligence, revealing the policy considerations at play and questioning the underlying rationale of the tort law regime.

5. Breach of Duty

2015 ◽  
Author(s):  
Christian Witting
Keyword(s):  
Standard Of Care ◽  
Tort Law ◽  
Duty Of Care ◽  
Reasonable Person ◽  
Breach Of Duty

This chapter examines breach of duty in tort law. It discusses the factors that the court considers in determining whether the defendant is in breach of his duty of care to the claimant. These include the foreseeability of harm to the claimant, the appropriate standard of care owed by the defendant to the claimant, and the conduct of the defendant in comparison to the expected standard of care. This chapter suggests that the question of whether the defendant has breached a duty of care is a mixed one of law and fact and that the standard of care required of the defendant is an exclusively legal construct and based on the standard of a hypothetical reasonable person.

Electrokinetic Characterization of Nanocomposites Applied on Natural Stones by Streaming Current Measurements

2018 ◽  
Author(s):  
Marco Roveri ◽  
Simona Raneri ◽  
Sabrina Bianchi ◽  
Francesca Gherardi ◽  
Valter Castelvetro ◽  
...  
Keyword(s):  
Protective Coatings ◽  
Structural Complexity ◽  
Complex Task ◽  
Capillary Water ◽  
Stone Surface ◽  
Physical Behaviour ◽  
Streaming Current ◽  
Natural Stones ◽  
Electrokinetic Characterization

The characterization of protective coatings applied on natural stones is often a complex task due to the difficulty of identifying and quantifying the various factors contributing to the overall behaviour of the coating-stone system. In particular, linking information about the coating-stone interaction to macroscopic effects in terms of physical behaviour of treated stones can be especially arduous owing to the inherent structural complexity of stone substrates. Electrokinetic analysis based on streaming current measurements, having already proved the ability to sense even minor changes in the chemical composition of different materials surfaces upon treatment, may provide useful insights in view of better understanding the extent of stone surface modification. In particular, involving the interaction of stones with a water-based solution, the streaming current technique could extend the characterization of stone surface to the outermost part of the pore network, which is part of every treatment-induced modification of surface properties. In this work, the effectiveness of streaming current measurements as analytical tool for the characterization of coatings applied on natural stones is assessed by considering different lithotypes and coatings and trying to correlate the results of electrokinetic analysis with the physical behaviour of treated stones, with specific regard to wettability and capillary water absorption.

scholarly journals Homing Devices in Choice of Tort Law: Australian, British, and Canadian Approaches

2006 ◽  
Vol 55 (4) ◽  
pp. 839-878 ◽  
Author(s):  
Reid Mortensen
Keyword(s):  
United Kingdom ◽  
Tort Law ◽  
Choice Of Law ◽  
Cross Border ◽  
The United Kingdom ◽  
Comprehensive Survey ◽  
The Law ◽  
Appeal Courts ◽  
Do So

AbstractSince 1994, Canada, the United Kingdom and Australia have adopted new choice of law rules for cross-border torts that, in different ways, centre on the application of the law of the place where the tort occurred (thelex loci delicti). All three countries abandoned some species of the rule inPhillips v Eyre, which required some reference to the law of the forum (thelex fori) as well as thelex loci delicti. However, predictions were made that, where possible, courts in these countries would continue to show a strong inclination to apply thelex foriin cross-border tort cases—and would use a range of homing devices to do so. A comprehensive survey and analysis of the cases that have been decided under the Australian, British and Canadianlex loci delictiregimes suggests that courts in these countries do betray a homing instinct, but one that has actually been tightly restrained by appeal courts. Where application of thelex foriwas formally allowed by use of a ‘flexible exception’ in Canada and the United Kingdom, this has been contained by courts of first appeal. Indeed, only the continuing characterization of the assessment of damages as a procedural question in Canada and the United Kingdom, seems to remain as a significant homing device for courts in these countries.

“Law and Neoclassical Economics”: A Response to Commentaries

1998 ◽  
Vol 16 (1) ◽  
pp. 163-171 ◽  
Author(s):  
James R. Hackney
Keyword(s):  
Intellectual History ◽  
Tort Law ◽  
Neoclassical Economics ◽  
Methodological Issues ◽  
Opportunity To Respond ◽  
Classical Economics ◽  
Historical Issues

I first want to thank all of the commentators for their insights on, and criticisms of, my article, as well as thank the editors of Law and History Review for the opportunity to respond. Rather than addressing each comment individually, I will structure my response along conceptual issues raised by all three, although the three comments each have different emphases. The two conceptual categories I use are “technical criticisms” and “historiographical criticisms.” Under the category of technical, I include criticisms of my characterization of neoclassical economics theory and my analysis of particular texts. The historiographical category encompasses substantive historical issues, including which authors should be included in my accounting of law and neo-classical economics as it relates to the reconfiguration of tort law theory. However, it also touches upon broader methodological issues of how one goes about doing intellectual history(ies).

The Hegemony of the Reasonable Person in Anglo-American Tort Law

2020 ◽  
pp. 45-80
Author(s):  
Kenneth W. Simons
Keyword(s):  
Significant Role ◽  
Tort Law ◽  
Reasonable Person ◽  
Self Defense ◽  
The Status ◽  
Anglo American ◽  
Reasonable Sense

Tort law has increasingly employed the rubric of the reasonable person in a variety of doctrinal domains. Many jurisdictions have rejected a differentiation of landowner duties according to the status of the entrant as trespasser, licensee, or invitee, and substituted a “reasonable person” test. Assumption of risk has been eliminated or greatly narrowed in favor of comparative fault, which asks simply whether the plaintiff failed to act as a reasonable person. The reasonable person plays a significant role even in intentional torts: apparent consent precludes liability when the defendant reasonably (though mistakenly) believes that plaintiff consented; putative self-defense precludes liability when the defendant reasonably (though mistakenly) believes facts that would establish that privilege; and offensive battery requires that the contact be offensive to a “reasonable” sense of dignity. What explains this widespread use of “reasonable person” tests? A desire for simplicity? The normative appeal of such a standard? Normative modesty about adopting a more controversial standard or about specifying more detailed rules? A concern to empower juries? Inertia or lazy thinking? Are such tests mainly descriptive (of ordinary conduct) or mainly idealized and prescriptive? In answering these questions, this paper argues that the hegemony of the reasonable person is sometimes a welcome but often an unwelcome development.

Tort

2005 ◽  
Author(s):  
John C. P. Goldberg
Keyword(s):  
Twentieth Century ◽  
Common Law ◽  
Tort Law ◽  
Regulatory Law

Twentieth-century tort scholarship has been dominated by the Holmesian conception of tort law as accident law, and accident law as a form of regulatory law. American and Commonwealth judges, however, have never fully accepted it. Moreover, in the last twenty-five years, some tort scholars have sought to revitalize the older common law conception of tort as a law of personal redress for mistreatment by others. For reasons examined in this article, this debate between the regulatory and redress models of tort has largely played itself out as a debate over the proper characterization of one particular tort, namely, the tort of negligence.

PROBABILISTIC CAUSATION IN EFFICIENCY-BASED LIABILITY JUDGMENTS

Legal Theory ◽  
2014 ◽  
Vol 20 (3) ◽  
pp. 210-252 ◽  
Author(s):  
Diego M. Papayannis
Keyword(s):  
Cost Benefit Analysis ◽  
Cost Benefit ◽  
Tort Law ◽  
Fundamental Principle ◽  
Tort Liability ◽  
Economic Analysis Of Law ◽  
Benefit Analysis ◽  
Legal Practice ◽  
Economic Theories

In this paper I argue that economic theories have never been able to provide a coherent explanation of the causation requirement in tort law. The economic characterization of this requirement faces insurmountable difficulties, because discourse on tort liability cannot be reduced to a cost-benefit analysis without a loss of meaning. More seriously, I try to show that by describing causation in economic terms, economic theories offer an image of the practice in which the participants incur in logical contradictions and develop patterns of inference that are far from intuitive. For this reason, efficiency cannot be the fundamental principle underlying tort law. Finally, I suggest that economic analysis of law can provide a genuine explanation of certain aspects of legal practice if it relinquishes its reductionist claims.

Negligence

2016 ◽  
Author(s):  
Jennifer K. Robbennolt ◽  
Valerie P. Hans
Keyword(s):  
Risk Assessment ◽  
Hindsight Bias ◽  
Tort Law ◽  
Psychological Research ◽  
Decision Makers ◽  
Tort Liability ◽  
Reasonable Person ◽  
Central Figure ◽  
Res Ipsa Loquitur

This chapter explores the “reasonable person” who sits at the heart of tort law and negligence. Psychology has important implications for understanding this central figure. Psychological research informs our understanding of how individuals behave in situations that generate tort liability and how the reasonableness of an actor’s behavior is assessed after the fact. The chapter explores the difficulties that decision makers have with risk assessment and risk-utility balancing, including complications caused by automaticity and limits on attention. It describes how hindsight bias and the complexities of metacognition complicate judging reasonableness after the fact. It explores the ways in which psychology can influence how tort doctrines such as custom and res ipsa loquitur are applied. And it considers how fact finders assess the reasonableness of individuals and corporate actors.

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