The Relationships to Which Vicarious Liability Might Attach

Keyword(s):  
2020 ◽  
Vol 13 (1) ◽  
pp. 31-79
Author(s):  
Dan Priel

AbstractA popular view among tort theorists is that an explanation of tort law must take account its “structure,” since this structure constitutes the law’s “self-understanding.” This view is used to both criticize competing functional accounts of tort law, especially economic ones, that are said to ignore tort law’s structure, and, more constructively, as a basis for explaining various tort doctrines. In this essay, I consider this argument closely and conclude that it is faulty. To be valid, one needs a non-question begging way of identifying the essence of tort law. I argue that law’s “self-understanding” can only make sense if it means the understanding of certain people. Examining those, I conclude that the claim of structuralists is false, for there are many people who take its function to be central. I then further show that if one wishes to understand the development of tort law’s doctrine one must take both structure and function into account. I demonstrate this claim by examining the development of the doctrine dealing with causal uncertainty and vicarious liability.


2018 ◽  
Vol 77 (3) ◽  
pp. 458-461 ◽  
Author(s):  
Allison Silink ◽  
Desmond Ryan

2018 ◽  
Vol 73 (1) ◽  
pp. 30-67
Author(s):  
Noa Reich

Noa Reich, “Seeing ‘No Guiltless Minds’: Inheritance and Liability in Wilkie Collins’s Armadale” (pp. 30–67) This essay suggests that the articulation of inherited guilt as a type of liability in Wilkie Collins’s Armadale (1866) invites us to reframe inheritance as central both to the Victorian credit economy and to the period’s fictional engagements with the effects of this economy. I begin by examining mid-nineteenth-century legal and political debates about limited corporate liability and estate debts, as well as legal theorist Henry Sumner Maine’s account of succession in Ancient Law (1861), which rests on an analogy between the family and the corporation. With their tropes of transmitted guilt, these discussions point to anxieties arising from the law’s construction of inherited identity as simultaneously individual and intergenerational, a paradox that both refracts and challenges nineteenth-century liberal contractual notions of identity. Armadale explores these issues through its depiction of the testator-heir dynamic as indeterminately singular and double, its association of inheritance with speculative ventures and impersonation, and its vacillation between affirming and limiting intergenerational liability. But it also fosters an alternative, mediating form of responsibility, which I call vicarious liability: a substitutive, imaginative liability both prompted and reinforced by the novel’s competing narrative perspectives and shifting or ambiguous focalization, as well as its embedded letters, diaries, and the depiction of reading as a path to identification with another’s guilt. Armadale’s take on inheritance may thus be read as a proposal for what the novel itself offers a hyper-contractual modernity: a framework for engaging in vicarious experiences of liability.


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