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

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.

Epstein's Theory of Strict Tort Liability

1992 ◽  
Vol 51 (1) ◽  
pp. 113-137
Author(s):  
N. E. Simmonds
Keyword(s):  
Economic Analysis ◽  
Private Law ◽  
Tort Liability ◽  
Economic Analysis Of Law ◽  
Legal Scholarship ◽  
Significant Tendency ◽  
The Law ◽  
Instrumental Role

Alan Brudner recently observed that a significant tendency within contemporary legal scholarship has been “the movement toward comprehending private law in terms of non-legal ‘perspectives’ that reduce to surface rhetoric the discourse by which private law articulates and understands itself”. This is most obviously true of the economic analysis of law, and not simply in so far as it introduces a vocabulary that is unfamiliar to the lawyer. For the perspective which has informed the most influential currents within that movement is fundamentally aggregative in orientation, so that legal doctrines developed within a bilateral adjudicative framework, focusing on justice between two parties, are inevitably cast in a subordinate and instrumental role. Economic approaches seek to explain the law from a standpoint outside of the law's own framework, and to reveal a deep rationale for particular legal doctrines which would not be transparent to the lawyers and judges who developed those doctrines.

scholarly journals Application of V. Pareto’s economic efficiency criterion in Russian judicial practice

2021 ◽  
Vol 118 ◽  
pp. 01013
Author(s):  
Alina Dmitrievna Khokhlova
Keyword(s):  
Economic Analysis ◽  
Economic Efficiency ◽  
Comparative Method ◽  
Well Being ◽  
The United States ◽  
Economic Analysis Of Law ◽  
Judicial Practice ◽  
Legal Method ◽  
Normative Economic ◽  
Pareto Criterion

The purpose of the research is to justify the productivity of the application of one of the two most common criteria of economic efficiency (V. Pareto principle) in Russian judicial practice. Justification is carried out by identifying the content of the Pareto criterion, assessing examples of its application by Russian courts and determining the conditions and limitations of such application. The methodological basis of work was the formal-legal method, which allowed to analyze the texts of judicial decisions on the use by the court of normative economic analysis of law; the comparative method, which was used to compare the theoretical foundations and practical features of the criterion of economic efficiency by the Russian judiciary. The results of the research were the author’s conclusions about the applicability of the Pareto criterion in the Russian reality and the formulation of the most likely areas of its use by the courts. Law as an object of scientific knowledge cannot be studied in isolation from its social, cultural, political and economic assumptions, as it is a central tool by which the state affects the economic well-being of society. To improve the practice of using this tool, it seems necessary to evaluate it from the standpoint of economic efficiency. In this regard, the further vector of evolution of Russian law will be more and more active use of methodological developments of economic theory, the application of the economic analysis of law developed in the United States in law enforcement practice. This leads to the need for interdisciplinary research on the conceptual and practical problems of using this direction in Russia. The novelty of the research lies in a comprehensive approach, to the problem of applicability of normative economic analysis of law in the judicial practice of the Russian Federation.

Trends in Market Access for Specialty Biologics: Challenges & Promises

2015 ◽  
Vol 21 (2) ◽  
Author(s):  
Sanjay Kumar Rao
Keyword(s):  
Health Care ◽  
Risk Sharing ◽  
Market Access ◽  
Cost Effective ◽  
Well Being ◽  
Pharmaceutical Products ◽  
Health Care Reforms ◽  
The Impact ◽  
The U.S

Specialty biologics are the fastest growing class of bio/pharmaceutical products in terms of the number of new brand launches and rates of health care spending in the U.S. and globally. Innovative biologics meant to treat a range of hitherto untreatable conditions in oncology, inflammation, CNS, endocrinology and other chronic conditions seek to offer radical improvements in efficacy and patient well-being. Such products can command premium prices, often costing over $100K per year per patient - triggering a raft of challenges to ensuring that eligible patients have adequate access. This article outlines important trends impacting market access to specialty biologics in the U.S. and globally. Particular importance is placed on evolving methods for managing specialty product utilization and reimbursement toward ensuring appropriate access. The reshaping of the specialty product market access landscape in the U.S. through the availability of oral biologic formulations distributed to patients via high-touch, high-involvement specialty pharmacies is examined. The rising role of risk sharing between specialty product manufacturers and insurers as a way to balance rewards of access with the risks inherent in radical new specialty therapeutics is discussed. Challenges posed by specialty biosimilars to traditional ways of ensuring market access and fair reimbursement are outlined. The impact of health care reforms on market access for specialty biologics in the U.S. is discussed in the context of the growing need for comparative outcomes research and the application of the principles of health technology assessments - adapted, in part from their apparent success in ensuring equitable and cost-effective access to biologics in the E.U.

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.

Optimal Precautions and the Law of Fire Damages

2010 ◽  
pp. 145-167 ◽  
Author(s):  
Jacob Rosenberg
Keyword(s):  
Economic Analysis ◽  
Criminal Law ◽  
Tort Law ◽  
Jewish Law ◽  
Fire Damage ◽  
Economic Analysis Of Law ◽  
Care Model ◽  
New Approach ◽  
Efficient Care ◽  
Graphical Illustration

This article presents an example of the use of economic analysis to understand Jewish law. The model used is an application of the economic analysis of law, which has become increasingly prominent in the philosophy and study of law. Economic analysis of law deals not only with those aspects of law that are usually regarded as purely “economic,” but also with more general categories of law, such as property rights, torts, and family law. Indeed, it can be said to deal with all aspects of civil and criminal law. Following this new approach, this article seeks to apply the economic analysis of law to Jewish tort law and, specifically, to laws relating to fire damage. It explains the economies of the laws of fire damage followed by proper care and due care as well as efficient care. This article enumerates a graphical illustration of the unilateral care model; an analysis of differential care concludes the article.

Property, Power and Politics

2020 ◽  
Author(s):  
Jean-Philippe Robé
Keyword(s):  
Property Rights ◽  
Economic Analysis ◽  
Power System ◽  
Legal System ◽  
Economic Activity ◽  
World Economy ◽  
Real Life ◽  
State System ◽  
Economic Analysis Of Law ◽  
Global Issues

The book applies legal concepts to economic analysis. It explains that modern economies require the existence of a specific legal system to operate. The analysis builds on the prior work of institutional economists such as Douglas North. It brings it forward by integrating what was missing: the legal component. Taking its distance from the economic analysis of law, it provides a legal analysis of economics. It is superior in this regard because real life economic actors must abide by legal rules. Their economic activity is dependent on the existence of rules making it possible, something present economic analyses neglect completely. Without States and the services they provide (protection services, a legal system, property rights, justice, roads, contract enforcement, and so on), economic activity cannot flourish. The book concentrates on the particular importance of property rights. They always played a key role in economic development. They now play a key role in the operation of a global economy because of the surge of multinationals built on the right of property concentrated via corporations. The role of corporate law in the reconfiguration of the power system from a State System to a World Power System is explained. The book is of interest for all social scientists interested in the operation of our present world economy in an era of globalization. It provides new insight on how to address global issues, in particular global climate change, which is a direct consequence of the spreading of a world economy over a divided State System.

scholarly journals Jules Coleman y las objeciones al Análisis Económico del Derecho como fundamento filosófico de la responsabilidad por daños extracontractual/Jules Coleman and the argues against Economic Analysis of Law as adequate philosophical foundation of Tort Law

2017 ◽  
Vol 13 (2) ◽  
pp. 176
Author(s):  
Virginia De Carvalho Leal
Keyword(s):  
Economic Analysis ◽  
Tort Law ◽  
Philosophical Foundation ◽  
Economic Analysis Of Law

En la teoría general y la filosofía del derecho del daño extracontractual son dos las grandes orientaciones en las que podemos encuadrar las doctrinas concurrentes. Una es aquella que cree que esta rama del derecho tiene su sentido, fundamento y razón de ser en una concreta y específica pauta de justicia. La otra gran orientación es la que corresponde a las doctrinas que a menudo se denominan instrumentalistas, en que el daño es nada más que el pretexto o el factor desencadenante para una medida que debe incrementar algún resultado socialmente beneficioso. Ese es el planteamiento del análisis económico del derecho, en la que el fin social en cuestión suele describirse como el de eficiencia, en cuanto maximización de los recursos sociales disponibles. Este artículo analiza los principales argumentos y críticas de Jules Coleman al análisis económico del derecho como fundamento filosófico de la responsabilidad extracontratual y la elección de la eficiencia y de la maximización de la riqueza como sus criterios de justificación. 

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