Tort Law and Feminism

The article imagines what tort law might look like if it more fully embraced feminist reforms. Despite decades of compelling feminist advocacy and scholarship, tort law has largely resisted attempts to orient it toward pursuing goals of social justice or equality. Nevertheless, some feminist redirection has laid the groundwork for further development. Focusing on four foundational concepts in tort law—duty, third-party liability, harm, and damages—this article uses the tools, insights, and arguments of modern feminist tort scholarship to envision the doctrinal landscape of a tort law rooted in gender justice and social equality. It explores how reconceptualizing the duty of care, expanding third-party liability, recognizing a broader range of intimate and harassment-based harms, and eliminating gender and racial bias from damage awards could transform tort from an instrument that perpetuates social inequalities into a mechanism of social justice offering recompense and remedy to all who are wrongfully injured.

Outdoor Recreation Damages from Oil Spills: Why Current Assessments are Typically Wrong and What can be Done to Fix Them

This study reviews methods for assessing natural resource damages to outdoor recreation resulting from oil spills, often a substantial component of total damages. The usual approach for assessing recreational damages, called value-to-cost (VTC), is deficient. It almost always provides a biased estimate of damages because it ignores the benefits of restoration projects on which damage awards must be spent. VTC is the least preferred method under the Oil Pollution Act NRDA regulations unless alternative methods are cost-prohibitive. This paper first reviews the methods available for computing damages, noting the differences among them. We provide a model for evaluating alternative methods and a decision tree for selection of VTC or alternative approaches. Next, we delve deeper into arguments pro and con VTC, and provide recommendations for improvements in the NRDA process to incorporate improved methods that recognize the benefits of restoration where appropriate. We provide evidence on the benefits of human use restoration projects, which both reveal the magnitude of potential bias of the VTC approach and provide a basis for improved assessment methods. The bias in VTC is proportional to the ratio of benefits of human use restoration projects to their costs (the BCR). A BCR of 4 implies that a VTC estimate of damages is biased upwards by 400%. We review existing evidence on the BCR and present preliminary estimates from a pilot study of BCRs for actual human use restoration projects. The paper concludes with recommendations for continued research that we believe would simultaneously improve the accuracy of future assessments while reducing transaction costs.

Perceptual vs. automated judgments of music copyright infringement

Music copyright lawsuits often result in multimillion dollar damage awards or settlements, yet there are few objective guidelines for applying copyright law in infringement claims involving musical works. Recent re-search has attempted to develop objective methods based on automated similarity algorithms, but there remains almost no data on the role of perceived similarity in mu-sic copyright decisions despite its crucial role in copy-right law. We collected perceptual data from 20 participants for 17 adjudicated copyright cases from the USA and Japan after editing the disputed sections to contain either full audio, melody only, or lyrics only. Due to the historical emphasis in legal opinions on melody as the key criterion for deciding infringement, we predicted that listening to melody-only versions would result in perceptual judgements that more closely matched actual past legal decisions. Surprisingly, however, we found no significant differences between the three conditions, with participants matching past decisions in between 50-60% of cases in all three conditions. Automated algorithms designed to calculate melodic and audio similarity produced comparable results: both algorithms were able to match past decisions with identical accuracy of 71% (12/17 cases). Analysis of cases that were difficult to classify suggests that melody, lyrics, and other factors sometimes interact in complex ways difficult to capture using quantitative metrics. We propose directions for further investigation of the role of similarity in music copy-right law using larger and more diverse samples of cases and enhanced methods, and adapting our perceptual experiment method to avoid relying for ground truth data only on court decisions (which may be subject to selection bias). Our results contribute to important practical debates, such as whether jury members should be allowed to listen to full audio recordings during copyright cases.

The Economics of Canadian Anti-Discrimination Laws

Prohibiting discrimination is a noble political statement. What does it mean as economic policy? Applying a neoclassical framework, the article examines how Canada’s human rights laws affect society and marginalized groups from a welfare perspective. The article offers several practical reforms to improve the efficiency of current laws such as uncapping damage awards, removing criminal sanctions, and allowing non-profits to participate in remedies so as to compensate marginalized groups for systemic effects of discrimination. It also discusses bolder market-based options, including the taxing and licencing of discrimination for instances where our great project towards equality might be better served by redistribution than prohibition.

Russia's legal sovereignty claim will lose it trust

Significance President Vladimir Putin couches the change in the language of human rights protection, but the aim is to protect the state from politically unwelcome rulings and costly damage awards. Impacts Legal sovereignty is part of broader isolationist efforts that include nationalising the internet and banking transfer systems. Russia will use legal language to justify its 'invited' presence in Syria and de-legitimise that of others. Nearer home, Russia ignores the state sovereignty rights of Georgia, Moldova and Ukraine and may do so with others.

Procreation Deprived

When professional negligence renders sex cells unusable or reproductive capacities inoperative, shattered dreams of pregnancy and parenthood find little solicitude under American law. Our legal system fails to recognize reproductive suffering from which a plaintiff’s body and bank account emerge unscathed—because tort law usually compensates for intangible losses only if they’re closely connected to material ones. But people deprived of procreation can’t point to any bodily harm or financial setback that’s tied directly to the injury they’ve suffered. Claims almost always fail because patients don’t incur any property damage (eggs and embryos aren’t considered property) or physical intrusion (aside from whatever medical procedure they freely agreed to). Besides, courts point out, even if fertility treatment goes as planned, patients might not have been able to conceive or carry a pregnancy to term anyway—and they can still adopt. Judges who don’t dismiss these suits outright keep a tight rein on damage awards; these courts miss the centrality of procreation to aspiring parents and the magnitude of its wrongful deprivation. Still, badly behaving specialists shouldn’t be liable for the infertility that patients already suffered from, or other reproductive complications they would have anyway, no matter what quality medical care they received. Probabilistic recovery offers a principled way to compute damages for the wrongful destruction of gametes or embryos under these circumstances. The availability of adoption doesn’t negate this reproductive loss or the need for our laws to redress it. Genetic affinity assumes profound meaning in American family life and law.

Damage Awards

Two questions should guide award determinations for procreation deprived, imposed, and confounded: First, how serious is a plaintiff’s reproductive loss? The answer goes to the nature and duration of that loss’s practical consequences for the plaintiff’s life. The second question asks how likely any future loss is to come about, and the extent to which its cause can be traced to a defendant’s misconduct, as opposed to some other factor for which the defendant isn’t to blame. The severity of reproductive injuries calls for objective inquiry into how a reasonable person in the plaintiff’s shoes would be affected. Permanent injuries tend to be more severe than temporary ones because they can be expected to cause greater disruption to major life activities like education, work, marriage, friendships, and emotional well-being. The question isn’t what plaintiffs would have done if they’d known that negligence would dash their efforts—it’s how much those injuries can be expected to impair their lives, from the perspective of their own ideals and circumstances. The causation element of this damages inquiry asks: What are the odds that plaintiffs would have suffered the complained-of reproductive outcome if it hadn’t been for the professional misconduct? Preexisting infertility, contraceptive user error, and genetic uncertainty can deprive, impose, or confound procreation just the same in the absence of any wrongdoing. Probabilistic recovery starts with the award total corresponding to the absolute loss in question, and reduces it by the extent to which the loss was caused by outside forces.