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

2017 ◽  
Author(s):  
Douglas A. Kysar
Keyword(s):  
Public Life ◽  
Tort Law ◽  
Regulation Mechanism ◽  
Private Law ◽  
Risk Regulation ◽  
The Public

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.

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.

Part VI Rights—Structure and Scope, Ch.38 The Constitutionalisation of Indian Private Law

2016 ◽  
Author(s):  
Balganesh Shyamkrishna
Keyword(s):  
Constitutional Law ◽  
Tort Law ◽  
Contract Law ◽  
Public Law ◽  
Fundamental Rights ◽  
Property Law ◽  
Private Law ◽  
The Public ◽  
The Past ◽  
The Relationship

This chapter examines the relationship between private law and constitutional law in India, with particular emphasis on tort law. It considers the Indian Supreme Court’s expansion of its fundamental rights jurisprudence over the past thirty years, as well as its effort to transcend the public law/private law divide. It also explains how the Court’s fusion of constitutional law and tort law has affected the independent efficacy, normativity, and analytical basis of equivalent private law claims in India. It argues that the Court’s efforts have only undermined the overall legitimacy of private law mechanisms in the country, and that this phenomenon is evident not only with respect to tort law, but also to a lesser degree in other areas of private law, such as contract law and property law.

The Right to Information in India Implementation and Impact

2015 ◽  
Vol 2 (1) ◽  
pp. 17
Author(s):  
_______ Naveen ◽  
_____ Priti
Keyword(s):  
Public Life ◽  
Public Authorities ◽  
The Public ◽  
Know How ◽  
The People ◽  
The Government ◽  
Right To Information ◽  
The Right ◽  
The Impact

The Right to Information Act 2005 was passed by the UPA (United Progressive Alliance) Government with a sense of pride. It flaunted the Act as a milestone in India’s democratic journey. It is five years since the RTI was passed; the performance on the implementation frontis far from perfect. Consequently, the impact on the attitude, mindset and behaviour patterns of the public authorities and the people is not as it was expected to be. Most of the people are still not aware of their newly acquired power. Among those who are aware, a major chunk either does not know how to wield it or lacks the guts and gumption to invoke the RTI. A little more stimulation by the Government, NGOs and other enlightened and empowered citizens can augment the benefits of this Act manifold. RTI will help not only in mitigating corruption in public life but also in alleviating poverty- the two monstrous maladies of India.

User Property, User Rights, and User Privileges

2017 ◽  
Author(s):  
Pascale Chapdelaine
Keyword(s):  
Public Law ◽  
Copyright Law ◽  
Future Application ◽  
Private Law ◽  
The Public ◽  
Freedom Of Contract ◽  
Competing Interests ◽  
Regulatory Changes ◽  
Law And Policy ◽  
User Property

This chapter proposes two principles that should inform the development of copyright law and policy and of user rights. The first calls for more cohesion between copyright law, private law, and public law, and for less exceptionalism in copyright law. The second requires that the balance in copyright law be adjusted for its future application as a mediation tool between the competing interests of copyright holders, users, intermediaries, and the public. Instituting positive obligations for copyright holders in relation to users and steering freedom of contract toward the objectives of copyright law are necessary regulatory changes to rectify ongoing imbalances. The principle of technological neutrality should guide the judiciary in its application of copyright’s objective of promoting a balance in copyright law. The proposed guiding principles lead to the creation of a taxonomy and hierarchy of copyright user rights that take into account the myriad ways users experience copyright works.

Cohabitants, Choice, and the Public Interest

2018 ◽  
Author(s):  
Robert Leckey
Keyword(s):  
Social Change ◽  
Public Interest ◽  
Intimate Relationships ◽  
Family Law ◽  
Regulatory System ◽  
Law Reform ◽  
Private Law ◽  
The Public ◽  
System P ◽  
The Face

Through the narrow entry of property disputes between former cohabitants, this chapter aims to clarify thinking on issues crucial to philosophical examination of family law. It refracts big questions—such as what cohabitants should owe one another and the balance between choice and protection—through a legal lens of attention to institutional matters such as the roles of judges and legislatures. Canadian cases on unjust enrichment and English cases quantifying beneficial interests in a jointly owned home are examples. The chapter highlights limits on judicial law reform in the face of social change, both in substance and in the capacity to acknowledge the state's interest in intimate relationships. The chapter relativizes the focus on choice prominent in academic and policy discussions of cohabitation and highlights the character of family law, entwined with the general private law of property and obligations, as a regulatory system.

The Speaking Silence of Citizens in Shakespeare’s Richard III

2017 ◽  
Author(s):  
Thomas Cartelli
Keyword(s):  
Public Life ◽  
Richard Iii ◽  
The Public

This chapter examines the commentative words and silences of the citizenry in Richard III, noting that although silence was customarily expected from commoners in the presence of the elite, it could also signify, in both Shakespeare’s version of Richard’s reign and Thomas More’s, the inscrutable resistance of a dissident citizenry. In London, citizen debate and discussion, informed and intelligent, comprised an important forum of Elizabethan public life; and in Shakespeare’s play, citizen non-compliance with the manipulative fabrications of Richard and Buckingham disrupts the performance/reception dynamic to undercut the bonding of the theatre’s citizen audience with the hitherto charismatic Richard. Though their speaking silence betokens the proud heritage of citizen resistance to royal and aristocratic presumption and contempt, Richard and Buckingham obtusely misread this as obtuseness, revealing themselves to be held in a kind of self-hypnosis by the public transcript, memorably subverted by Shakespeare.

Conclusion

2017 ◽  
Author(s):  
Mitch Kachun
Keyword(s):  
American History ◽  
Colonial America ◽  
Public Life ◽  
People Of Color ◽  
History And Memory ◽  
Men And Women ◽  
Revolutionary Era ◽  
The Public ◽  
Historical Significance ◽  
The Many

The Conclusion ties together the book’s main arguments about Crispus Attucks’s place in American history and memory. We do not know enough about his experiences, associations, or motives before or during the Boston Massacre to conclude with certainty that Attucks should be considered a hero and patriot. But his presence in that mob on March 5, 1770, embodies the diversity of colonial America and the active participation of workers and people of color in the public life of the Revolutionary era. The strong likelihood that Attucks was a former slave who claimed his own freedom and carved out a life for himself in the colonial Atlantic world adds to his story’s historical significance. The lived realities of Crispus Attucks and the many other men and women like him must be a part of Americans’ understanding of the nation’s founding generations.

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