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.

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.

scholarly journals CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT

2021 ◽  
Vol 70 (2) ◽  
pp. 271-305
Author(s):  
Paula Giliker
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Legal Scholarship ◽  
Legal Rules ◽  
The Law ◽  
Codal Provisions ◽  
Code Civil

AbstractThe law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

Classifying precontractual liability: a comparative analysis

Legal Studies ◽  
2001 ◽  
Vol 21 (2) ◽  
pp. 153-191 ◽  
Author(s):  
Joachim Dietrich
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Contract Law ◽  
Common Elements ◽  
Ongoing Debate ◽  
Unjust Enrichment ◽  
The Common ◽  
Initial Focus

The common law has solved questions of liability arising in the context of precontractual negotiations by resort to a range of different doctrines and approaches, adopting in effect ‘piecemeal’ solutions to questions of precontractual liability. Consequently, debate has arisen as to how best to classify or categorise claims for precontractual work and as to which doctrines are best suited to solving problems arising from anticipated contracts. The purpose of this article is to consider this question of how best to classify (cases of) precontractual liability. The initial focus will be on the ongoing debate as to whether principles of contract law or principles of unjust enrichment can better solve problems of precontractual liability. I will be suggesting that unjust enrichment theory offers little by way of explanation of cases of precontractual liability and, indeed, draws on principles of contract law in determining questions of liability for precontractual services rendered, though it does so by formulating those principles under different guises. Irrespective, however, of the doctrines utilised by the common law to impose liability, it is possible to identify a number of common elements unifying all cases of precontractual liability. In identifying such common elements of liability, it is necessary to draw on principles of both contract and tort law. How, then, should cases of precontractual liability best be classified? A consideration of the issue of classification of precontractual liability from a perspective of German civil law will demonstrate that a better understanding of cases of precontractual liability will be gained by classifying such cases as lying between the existing categories of contract and tort.

scholarly journals Mary Shelley’s Frankenstein, the Guillotine, and Modern Ontological Anxiety

Text Matters ◽  
2016 ◽  
pp. 35-52 ◽  
Author(s):  
Kristen Lacefield
Keyword(s):  
Twentieth Century ◽  
French Revolution ◽  
Technological Innovation ◽  
Romantic Period ◽  
Ontological Categories ◽  
Materialist Theory ◽  
The French Revolution

This essay begins by examining the rhetorical significance of the guillotine, an important symbol during the Romantic Period. Lacefield argues that the guillotine symbolized a range of modern ontological juxtapositions and antinomies during the period. Moreover, she argues that the guillotine influenced Mary Shelley’s novel Frankenstein through Giovanni Aldini, a scientist who experimented on guillotined corpses during the French Revolution and inspired Shelley’s characterization of Victor Frankenstein. Given the importance of the guillotine as a powerful metaphor for anxieties emergent during this period, Lacefield employs it as a clue signaling a labyrinth of modern meanings embedded in Shelley’s novel, as well as the films they anticipated. In particular, Lacefield analyzes the significance of the guillotine slice itself—the uneasy, indeterminate line that simultaneously separates and joins categories such as life/death, mind/body, spirit/matter, and nature/technology. Lacefield’s interdisciplinary analysis analyzes motifs of decapitation/dismemberment in Frankenstein and then moves into a discussion of the novel’s exploration of the ontological categories specified above. For example, Frankenstein’s Creature, as a kind of cyborg, exists on the contested theoretical “slice” within a number of antinomies: nature/tech, human/inhuman (alive/dead), matter/spirit, etc. These are interesting juxtapositions that point to tensions within each set of categories, and Lacefield discusses the relevance of such dichotomies for questions of modernity posed by materialist theory and technological innovation. Additionally, she incorporates a discussion of films that fuse Shelley’s themes with appeals to twentieth-century and post-millennium audiences.

Is there a Duty to Prevent Harm in Tort? A Common Law Perspective

2021 ◽  
Vol 12 (2) ◽  
pp. 116-145
Author(s):  
Paula Giliker
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Tort Law ◽  
Public Authority ◽  
Public Authorities ◽  
Statutory Duty ◽  
Starting Point ◽  
Private And Public ◽  
Legal Position ◽  
The Common

Abstract In this paper, I will examine the extent to which the common law of tort in England and Wales imposes a duty to prevent harm on public authorities and private individuals. As will be seen, the starting point for the common law is that such liability should, in both cases, be regarded as exceptional. This must, however, be weighed against duties to prevent harm that arise under the torts of negligence and breach of statutory duty. Public authorities may also face claims that their failure to prevent harm is in breach of ECHR arts 2 or 3. While the law is complex, this paper identifies three key arguments that explain the current legal position at common law, namely that: (i) tort law should treat private and public parties alike: (ii) human rights claims should be treated as distinct from private law claims and (iii) libertarian concerns signify that a duty to prevent harm should be exceptional and needs to be justified. While these arguments provide both an explanation of and a justification for the current law, this article questions to what extent the treatment of public authority liability may be regarded as unduly harsh on vulnerable claimants.

Simon of Pattishall, Pioneer Professional Judge

1977 ◽  
Vol 9 (2) ◽  
pp. 115-127 ◽  
Author(s):  
Ralph V. Turner
Keyword(s):  
Twentieth Century ◽  
Thirteenth Century ◽  
Twelfth Century ◽  
Common Law ◽  
Civil Servant ◽  
Law And Order ◽  
Middle Years ◽  
Magna Carta ◽  
English Law

The latter part of the twentieth century may not find many of us wishing to pay tribute to bureaucrats, but as Helen Cam reminded us, the civil servant “deserves more credit than he has yet had for building up and maintaining our precious tradition of law and order.” In the late twelfth century and the thirteenth century the process of “bureaucratization” first got underway in England. An early professional civil servant, one specializing in judicial activity, was Simon of Pattishall. His name surfaces in the records in 1190, and it disappears after 1216. His time of activity, then, coincides with an important period for English common law: the years between “Glanvill” and Magna Carta.Simon was one of that group of royal judges who might be termed the first “professionals,” a group that took shape by the middle years of Richard I's reign. By the time of John, about ninety men acted at various times as royal judges, either at the Bench at Westminster, with the court following the king, or as itinerant justices. Many of these had only temporary appointments, making circuits in the counties; but a core of fifteen, who concentrated on the work of the courts, can be regarded as early members of a professional judiciary. Simon of PattishalPs is perhaps the most respected name among the fifteen. He had the longest career on the bench, from 1190 until 1216. He founded a judicial dynasty, for his clerk, Martin of Pattishall, became a judge, as did his clerk, William Raleigh, who had as his clerk Henry of Bracton, author of the great treatise on English law.

Contract

2005 ◽  
Author(s):  
James Gordley
Keyword(s):  
Twentieth Century ◽  
Legal System ◽  
Common Law ◽  
Contract Law ◽  
Legal Method ◽  
Legal Problems ◽  
Early Twentieth Century ◽  
The Will ◽  
The Law

‘Classical’ contract law was built on a substantive premise about contract law and two premises about legal method. The substantive premise was voluntaristic: the business of contract law is to enforce the will or choice of the parties. The first methodological premise was positivistic: the law is found, implicitly or explicitly, in the decisions of common law judges. The second methodological premise was conceptualistic: the law should be stated in general formulas which can be tested by their coherence. Finally, ‘classical’ contract law reflected an attitude about how best to steer a course — as every legal system must — between strict rules and equitable considerations. Since the early twentieth century, classical contract law has been breaking down. Allegiance to its premises has weakened as has the preference for rigor. At the same time, scholars have found classical law to be inconsistent even in its own terms. Nevertheless, much of it has remained in place faute de mieux while contemporary jurists have tried to see what is really at stake in particular legal problems. This article describes their work.

Misrepresentation of Orientals in Dave Eggers’s A Hologram for The King

2021 ◽  
Vol 8 (3) ◽  
pp. 250-258
Author(s):  
Samal Marf Mohammed
Keyword(s):  
Twentieth Century ◽  
Saudi Arabia ◽  
Postcolonial Theory ◽  
Real Image ◽  
Literary Works ◽  
The Real ◽  
Postcolonial Discourse ◽  
Economic Motives ◽  
At Home

      This study deals with the colonial perspectives in Dave Eggers’s A Hologram for The King (2012), according to the postcolonial approach. Although colonialism era is over by now, colonial perspectives remain strong in some literary works. Since its advent in the second half of the twentieth century, postcolonial theory confronts colonial attitudes and experiences as colonialism has been justified in many works of Western writers and scholars who have distorted the real image of non-Europeans and non-Westerners via different means and techniques in masquerade of orientalism. Postcolonial discourse opposes the misrepresentation of non-Europeans and argues that such falsification is driven by political, social, religious and economic motives. In the current study, the researcher aims at explaining the notions of colonialism, otherization and other falsified images of non-Westerners in A Hologram for the King. This paper mainly questions Eggers’s portrayal of the protagonist, Alan Clay, who after bankruptcy and failure at home, flies to Saudi Arabia and capitalizes on the physical and moral assets of the Orientals in this country to convert his story of failure to a success. The characterization of the oriental world and its setting show Eggers’s being biased against the Eastern world and ironically mirror clear hints of colonialism and eurocentrism.

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.

Between Scylla and Charybdis

Black Boxes ◽  
2021 ◽  
pp. 23-48
Author(s):  
Marco J. Nathan
Keyword(s):  
Twentieth Century ◽  
Classical Model ◽  
Levels Of Explanation ◽  
Point Of Departure

This chapter outlines the development of the reductionism vs. antireductionism debate, which has set the stage for philosophical analyses of science since the early decades of the twentieth century. The point of departure is the rise and fall of the classical model of reduction, epitomized by the work of Ernest Nagel. Next is the subsequent forging of the “antireductionist consensus” and the “reductionist anti-consensus.” The chapter concludes by arguing how modest reductionism and sophisticated antireductionism substantially overlap, making the dispute more terminological than it is often appreciated. Even more problematically, friends and foes of reductionism share an overly restrictive characterization of the interface between levels of explanation. Thus, it is time for philosophy to move away from these intertwining strands, which fail to capture the productive interplay between knowledge and ignorance in science, and to develop new categories for charting the nature and advancement of science.

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