Causal Apportionment of Tort Liability: An Efficient Approach

2016 ◽  
Vol 12 (1) ◽  
Author(s):  
Hugo A. Acciarri ◽  
Fernando Tohmé ◽  
Andrea Castellano
Keyword(s):  
Economic Analysis ◽  
Causal Reasoning ◽  
Tort Law ◽  
Tort Liability ◽  
Mainstream Economic ◽  
Efficient Approach ◽  
Alternative Framework ◽  
Standard Conception

AbstractMainstream economic analysis of Tort Law assumes that efficiency cannot be formally assured by allocating liability according to causal apportioning. In this paper we will present some ways to escape from the full scope of this claim. We start by reviewing the standard conception of causality in the economic analysis of Tort Law, to show how some underlying assumptions influence the currently held view on the relation between causal apportioning and efficiency. Then, we revisit those assumptions to see how plausible they actually are. In the light of this discussion we introduce an alternative framework of causal reasoning in Tort Law. We will show how our model yields a way of allocating liability in terms of a causal apportioning rule. The outcomes obtained through this procedure are closer to efficiency than those prescribed by the mainstream.

Distribution of Risk of Harm in Delictual Responsibility From the Standpoint of Economic Analysis of Law

2020 ◽  
Vol 27 (2) ◽  
pp. 119-130
Author(s):  
Maryna Velykanova
Keyword(s):  
Property Rights ◽  
Economic Analysis ◽  
Risk Sharing ◽  
Basis Property ◽  
Cost Effective ◽  
Well Being ◽  
Tort Law ◽  
Tort Liability ◽  
Economic Analysis Of Law ◽  
Systematic Analysis

Damage to property and (or) non-property rights of persons occurs quite often. The right to compensation for such damage is indisputable. However, civil doctrine ambiguously addresses the issue of risk sharing in tort obligations. Therefore, the purpose of this paper is to discuss approaches to the distribution of risk of harm in delictual responsibility and to determine their effectiveness from an economic and legal standpoint. The paper, based on economic and systematic analysis using dialectical, comparative, logical-dogmatic and other methods, including economics, describes the approaches to determining the purpose of tort law and its ability to ensure effective distribution of risk of harm. It has been proven that tort law can have direct regulatory consequences by restraining behaviour and sharing risks. It is concluded that the task of tort law is the optimal distribution of risk of harm between the perpetrator and the victim and to ensure the implementation of risky activities only if its social value justifies the risk. Based on the economic analysis of tort law, it has been substantiated that the distribution of the risk of damage in tort liability is carried out through the institutions of insurance and liability. Insurance is cost-effective when it comes to compensation for damage. However, only liability, in addition to the function of compensation, can also perform the function of preliminary prevention of harm. Therefore, the risk of causing harm in tort liability is mainly borne by the person who caused the damage. In obligations to compensate for damage caused by a source of increased danger, a person who on the appropriate legal basis (property rights, other property rights, contracts, leases, etc.) owns a vehicle, mechanism, other object, the use, storage or maintenance of which creates an increased danger, bears such risk even in the absence of guilt in causing harm. The grounds for imposing such risk on the victim are his intention or force majeure. It is this approach to the distribution of harm risk in tort liability that is fair and cost-effective and contributes to public well-being

scholarly journals Treating Wrongs as Wrongs: An Expressive Argument for Tort Law

2018 ◽  
Vol 10 (2) ◽  
pp. 405-447 ◽  
Author(s):  
Scott Hershovitz
Keyword(s):  
Criminal Law ◽  
Tort Law ◽  
Tort Reform ◽  
Corrective Justice ◽  
Social Standing ◽  
Tort Liability ◽  
Criminal Punishment ◽  
Expressive Function ◽  
The Social ◽  
The Way

AbstractThe idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law. In this essay, I argue that tort liability expresses the judgment that the defendant wronged the plaintiff. And I explain why it is important to have an institution that expresses that judgment. I argue that we need ways of treating wrongs as wrongs, so that we can vindicate the social standing of victims. Along the way, I consider the continuity between tort and revenge, and I suggest a new way of thinking about corrective justice and the role that tort plays in dispensing it. I conclude by sketching an agenda for tort reform that would improve tort’s ability to serve its expressive function.

Needs, the Principle of Minimum Means, and Public Goods in de Viti de Marco

2006 ◽  
Vol 28 (4) ◽  
pp. 427-438 ◽  
Author(s):  
Amedeo Fossati
Keyword(s):  
Public Finance ◽  
Economic Analysis ◽  
Public Goods ◽  
Anglo Saxon ◽  
Mainstream Economic ◽  
Main Work ◽  
English Speaking

Antonio De Viti de Marco is perhaps the most representative scholar at the origin of the Italian tradition in Public Finance, and his main work has been at the disposal of English-speaking economists since 1936 (De Viti de Marco 1936). However, at the time he was not particularly appreciated: his book had at the time one good and one bad review, but certainly left no mark on mainstream economic analysis. The fact is that De Viti's message was too far beyond the range of interests of Anglo-Saxon writers of the time.

scholarly journals German Transplants in Estonian Tort Law: General Duties to Maintain Safety

2021 ◽  
Vol 30 ◽  
pp. 132-139
Author(s):  
Janno Lahe
Keyword(s):  
Tort Law ◽  
Case Law ◽  
Tort Liability ◽  
Legal Practice ◽  
Remarkable Change ◽  
General Duty ◽  
Relevant Case ◽  
German School ◽  
Legal Thinking ◽  
The Individual

The jurisprudence and case-law approach of German tort law – and, more broadly, German-school legal thinking in general – has found its way into Estonian case law on torts and into Estonia’s scholarly texts on jurisprudence. From among the catalogue of transplants from German tort law that have reached Estonian law or legal practice, the paper focuses on one whose importance cannot be overestimated: the concept of tort liability based on breach of the general duty to maintain safety. This domain has witnessed remarkable change since the beginning of the 2000s, when an analogous concept of liability was still unfamiliar to many Estonian lawyers. The article examines whether and to what extent the concept of liability based on the general duty to maintain safety has become recognised in Estonian legal practice in the years since. Also assessed is the relevant case law to date, for ascertainment of whether any adoption of an equivalent concept of liability has been successful and, in either event, what problems remain to be resolved. The importance of this issue extends far beyond that of individual questions: the recognition of general duties to maintain safety affects our understanding of the very structure of tort law, of that of the general composition of tort, and of the connections that link the individual prerequisites for tort liability. Furthermore, this constellation influences our thought in the field of tort law more generally and our approach to the cases emerging in real-world legal practice.

MODERN THEORIES OF WRONGFULNESS: THE SWISS APPROACH

2021 ◽  
Vol 21 (1) ◽  
pp. 219-253
Author(s):  
S.K. STEPANOV
Keyword(s):  
Tort Law ◽  
Tort Liability ◽  
Key Concepts ◽  
Definition Of

This paper provides an overview of key concepts of wrongfulness in Tort law. The Swiss approach to the definition of wrongfulness has been analyzed. In addition, the article discusses the subjective and objective theories of wrongfulness. The author addresses the modern concepts of wrongfulness, allowing to achieve maximum flexibility in establishing tort liability.

Causation

2016 ◽  
Author(s):  
Jennifer K. Robbennolt ◽  
Valerie P. Hans
Keyword(s):  
Causal Reasoning ◽  
Counterfactual Thinking ◽  
Tort Law ◽  
Decision Makers ◽  
Causal Inferences ◽  
Causal Factors ◽  
Legal Advocacy ◽  
Causal Chains ◽  
Multiple Challenges

This chapter explores the psychology of causal reasoning and the implications of this psychology for tort law. The chapter surveys what is known about counterfactual thinking, a process that is at the heart of the but-for test of causation. In addition, the chapter explores the multiple challenges that decision makers face in making causal inferences in complex real-world settings. These include evaluating the contributions of multiple causal factors, evaluating causation in the context of a background risk of harm, identifying the particular source of a harm, and assessing causes that are part of broader causal chains. The chapter raises questions about the role of legal advocacy in defining competing causal accounts and the counterfactual potency of those accounts.

Law of Torts

Japanese Law ◽  
2021 ◽  
pp. 191-211
Author(s):  
Hiroshi Oda
Keyword(s):  
Burden Of Proof ◽  
Tort Law ◽  
Case Law ◽  
Civil Code ◽  
Tort Liability ◽  
The Law ◽  
General Provision

Tort is part of the Law of Obligations. Provisions on tort liability are found in Book Three, the Law of Obligations, of the Civil Code. There is only a single general provision on tort. The legislature expected rules to develop out of case law. A person who intentionally or negligently infringes upon others’ right or interests protected There is a body of case law which sets out details of tort law such as causation and fault. There have been cases where the shift of the burden of proof was at issue.　

Backwards and Forwards with Tort Law

2019 ◽  
pp. 103-132
Author(s):  
John Gardner
Keyword(s):  
Economic Analysis ◽  
Tort Law ◽  
Theory Of Value

This chapter argues that there can be no successful type of objection to an economic analysis of tort law. Coleman’s attempts to make good such objections are the best we have, but still they fail. That is because legal economists can in principle account for any norm that can be accounted for. To show that their explanation fails we are always reduced in the end to arguing that they got their costings wrong, and once the argument gets to that point then the war is over. If we want to defeat the economic analysis of tort law in a less pyrrhic way, we have no alternative but to mount a different type of objection to it. We must establish that the economic analysis rests on a bad theory of value. This we do by exploring what really matters in life, for what really matters in life is also, by and large, what really matters in law.

The Concept of Fault of the Tortfeasor in Estonian Tort Law: A Comparative Perspective

2013 ◽  
Vol 38 (2) ◽  
pp. 141-170 ◽  
Author(s):  
Janno Lahe
Keyword(s):  
Strict Liability ◽  
Comparative Law ◽  
Tort Law ◽  
Frame Of Reference ◽  
Comparative Perspective ◽  
Tort Liability ◽  
European Model ◽  
Common Frame Of Reference

The fault of the wrongdoer is one of the preconditions for general tort liability. Nowadays, fault-based liability and strict liability are two equally important forms of liability that are not polar opposites but, rather, complement one another. This article focuses on the meaning of the fault of a tortfeasor. It considers the notion of fault in two European model rules (the Draft Common Frame of Reference and the Principles of European Tort Law), in the Estonian Law of Obligations Act, and also makes reference to German, French, English, and Russian tort law. We shall begin with a comparative discussion of the questions of general liability based on fault, fault capacity, various forms of fault, the burden of proving fault, and the importance of differentiating those forms of fault. Thereafter, we will treat the issues of fault in the context of liability for torts committed by another person and, also, borderline issues between fault-based liability and strict liability. This analysis seeks to offer the reader a basis for determining whether the regulations of Estonian tort law are justified or whether amendments should be considered within such a comparative-law framework.

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