Tort’s Landscape

2017 ◽  
Author(s):  
Don Herzog
Keyword(s):  
Social Policy ◽  
Tort Law ◽  
Private Law ◽  
The Law ◽  
Posthumous Interests ◽  
What Matters

A sketch of the basic contours of tort law, for those not familiar with it. The chapter defends and starts deepening the traditional case that tort is private law: that what matters in a tort action is simply the claim that one party has wronged another, not making sound social policy or promoting Kaldor-Hicks efficiency or anything like that. It explores settings in which the law does take posthumous interests seriously.

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.

Civil Wrongs and Civil Procedure

2020 ◽  
pp. 87-110
Author(s):  
Matthew A. Shapiro
Keyword(s):  
Tort Law ◽  
Civil Procedure ◽  
Essential Elements ◽  
Civil Litigation ◽  
Private Law ◽  
Procedural Law ◽  
The Law

This chapter addresses the significance of civil procedure in private law’s treatment of civil wrongs. It begins by canvassing contemporary private law theory, focusing in particular on the civil recourse theory of tort law. The chapter notes that civil recourse theory incorporates assumptions about private law’s characteristic responses to wrongs, each of which is, ultimately, an assumption about the law of civil procedure. They include assumptions that civil litigation is strongly adversarial, that it provides plaintiffs with an opportunity to confront defendants for civil wrongs, and that it culminates in an authoritative judicial declaration of where things stand between the parties as a matter of right. This chapter also points out that civil recourse theorists tend to treat these features of procedural law as fixed and essential elements of tort law. But close examination shows this to be a mistake. The rise of routinized settlement and arbitration, among other things, suggests that private law’s procedural responses to civil wrongs are varied and changing, often in ways inconsistent with interpretations given by leading theorists.

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.

From Personal Life to Private Law

2018 ◽  
Author(s):  
John Gardner
Keyword(s):  
Social Policy ◽  
Private Life ◽  
Personal Life ◽  
Private Law ◽  
Fresh Start ◽  
Personal Lives ◽  
Philosophical Foundations ◽  
Moral Domain ◽  
Problems And Solutions ◽  
The Law

The book examines some of the philosophical foundations of private law, particularly the law of torts and the law of contract, arguing that the law’s problems and solutions are often much the same as those that we encounter in our personal lives, and have much the same rationales. Arguing against the idea that private law operates as an autonomous moral domain, and simultaneously against the idea that it is a tool of welfarist social policy, the book emphasizes the affinity between ideas of duty, responsibility, and reparation in private life and those same ideas in the law. In particular, the book traverses questions about the nature and justification of relational duties, the relevance of an action’s outcome to that action’s appraisal, the case for an agent to be the repairer of his or her own derelictions, the value of apology and other expressions of regret, the importance of restoring what one loses, and the value of opting to make a fresh start. The book is based on the Quain Lectures delivered by the author in 2014, which have been substantially revised and expanded.

Torts

2020 ◽  
pp. 260-276
Author(s):  
John C. P. Goldberg
Keyword(s):  
United States ◽  
Law And Economics ◽  
Tort Law ◽  
The United States ◽  
Law Students ◽  
Private Law ◽  
The Law ◽  
Core Features

In the United States and elsewhere, the Law and Economics movement has fundamentally reshaped how judges, lawyers, and law students understand tort law. And yet economic interpretations of tort law – as opposed to prescriptive analyses of tort problems that deploy economic methodologies – face insuperable difficulties. Why, then, do they endure? The answer is that some of the leading economic accounts actually manage to identify, albeit in a distorted way, many of tort law’s core features. In keeping with the emphasis of the New Private Law on analysis that is down-to-earth without being reductionist, this Chapter explains why these same features can be captured without distortion through an understanding of tort as a law of wrongs and redress.

Law and Neoclassical Economics: Science, Politics, and the Reconfiguration of American Tort Law Theory

1997 ◽  
Vol 15 (2) ◽  
pp. 275-322 ◽  
Author(s):  
James R. Hackney
Keyword(s):  
Law And Economics ◽  
Tort Law ◽  
Academic Community ◽  
Neoclassical Economics ◽  
Private Law ◽  
Progressive Politics ◽  
Contentious Issue ◽  
Scientific Foundation ◽  
The Law

Morton Horwitz once posed the question, “Law and Economics: Science or Politics?” highlighting what has been a contentious issue for legal historians and the general legal academic community. A common historical accounting for the emergence of the law and neoclassical economics movement is that it provided theoretical ammunition for right-of-center politics following the collapse of 1960s progressive politics. Simultaneously, it has been viewed as a continuation of the legal realist moment and a response to the need for a scientific foundation for private law. In short, the consensus seems to be that law and neoclassical economics is about either science or politics. Little thought has been given, however, to its political and scientific formation and, in particular, to how the two in fact intersect. This article attempts to remedy the situation.

CODIFYING TORT LAW: LESSONS FROM THE PROPOSALS FOR REFORM OF THE FRENCH CIVIL CODE

2008 ◽  
Vol 57 (3) ◽  
pp. 561-582 ◽  
Author(s):  
Paula Giliker
Keyword(s):  
Comparative Law ◽  
Tort Law ◽  
Civil Code ◽  
Critical Assessment ◽  
Private Law ◽  
European Level ◽  
The Law

AbstractThis article deals with a topic at the heart of modern comparative law: codification of private law on a national and European level. It offers a critical assessment of the recent French attempt to redraft the obligations provisions of its civil code, focusing on the revisions to the law of tort or delict. There has been little analysis of these provisions within or outside France. This article examines the key changes proposed and identifies the implications in terms of tort policy.

Conclusion

2014 ◽  
Author(s):  
Robert D. Cooter ◽  
Ariel Porat
Keyword(s):  
Social Welfare ◽  
Public Goods ◽  
Tort Law ◽  
Standards Of Care ◽  
Private Law ◽  
The Public ◽  
Legal Reforms ◽  
The Law ◽  
Negligence Law

This book has advanced three central claims, each related to a different branch of private law. First, to achieve efficiency under negligence law, all foreseeable risks should be included when setting standards of care and awarding damages. Second, to achieve efficient contracts, the law should respond more to the promisee's incentives for cooperation and reliance. Third, the law should encourage unrequested benefits by making the beneficiaries compensate the benefactors more often, and by reducing the liability of injurers and breaching parties who externalize benefits. In support of these claims, the book has introduced novel principles such as total liability for excessive harm, anti-insurance, decreasing liability contracts, and the public goods theory of restitution. In conclusion, the book proposes three main legal reforms to improve private law in terms of promoting social welfare, such as removing misalignments in tort law or reducing the benefactor's liability for accidents.

Comparative Tort Law

2006 ◽  
pp. 1002-1042 ◽  
Author(s):  
Gerhard Wagner
Keyword(s):  
Strict Liability ◽  
Comparative Law ◽  
Tort Law ◽  
Critical Discussion ◽  
Private Law ◽  
Starting Point ◽  
The Law ◽  
Scope Of Protection

Tort law has always been one of the major areas of comparative law. Whereas the law of property, even today, remains on the outskirts of comparative learning, the law of extra-contractual liability has attracted much interest from comparative law scholars. Endeavours in the comparison of the different systems of delict and tort have received a further boost from the objective of harmonizing European private law. This article consider general clauses versus a variety of individual torts, the scope of protection, the liability for fault, strict liability, and tort law and insurance. Regardless of whether one agrees or disagrees with the solutions offered, the principles and the commentaries thereon certainly provide a valuable starting-point for further scholarly efforts and critical discussion.

Corrective Justice

2020 ◽  
pp. 36-52
Author(s):  
Gregory C. Keating
Keyword(s):  
Economic Analysis ◽  
Tort Law ◽  
Corrective Justice ◽  
Private Law ◽  
Recent Scholarship ◽  
The Law

This chapter discusses the concept of corrective justice, which has been at the heart of much recent scholarship on the law of torts in particular and private law more generally. Notwithstanding its familiarity, ancient origin, and apparent universal acceptance, the concept of corrective justice has produced a remarkable number of distinct conceptions and has stirred up major controversies. For at least a generation, corrective justice stood at the center of the argument between contending conceptions of tort. For legal economists, corrective justice was an aspect of the institution of tort law. It was part of the data that needed to be explained and justified in economic terms. Corrective justice was subordinate. It was a feature of—not a justification for—the institution of tort law. For legal philosophers Ernest Weinrib and Jules Coleman—who championed corrective justice as the countertheory to economic analysis—corrective justice was sovereign. It was both instantiated in the institution of tort law and the justification for the institution. It was incipiently normative. And the justification it supplied was formal, not instrumental. The chapter explains and analyzes corrective justice in light of this history, in the hope that this will set the stage for tort theory to move forward.

Sign in / Sign up

Export Citation Format

Share Document