Making sense of negligence

Legal Studies ◽  
2016 ◽  
Vol 36 (3) ◽  
pp. 491-512
Author(s):  
Steve Hedley
Keyword(s):  
Economic Theory ◽  
Economic Effect ◽  
Corrective Justice ◽  
Fundamental Change ◽  
Good Theory ◽  
Making Sense ◽  
The Law ◽  
Personal Liability ◽  
As If

What is negligence? Our answers to this are frequently misleading, because we turn all our attention on to what doctrine says rather than asking how it is actually used. So we routinely talk of personal liability, even though we know very well that individuals (as opposed to organisations, typically insurers) do not pay damages. We think of negligence doctrine as if it were applied automatically and without bias, when in fact the complex insurance arrangements involved have rather decided biases. And we treat the development of the law purely as a matter of evolving judicial thought, when in fact legislatures and insurers also routinely modify the system in response to new realities. The result is that fundamental change has occurred under the very noses of theorists, who still tell us that negligence holds individual defendants responsible for their wrongdoing (it does not) or that the economic effect of tort rules is to deter defendants (there is not much reason to think this is so). Why are the leading theoretical justifications of negligence – corrective justice, responsibility theory and economic theory – so dependent on myths? Is it because the myths do not matter? Or is it that, in fact, we have no good justification for the system as it works in practice at all – we have no good theory of why negligence makes sense because it does not, in reality, make sense?

scholarly journals The (Non) Economic Properties of the Law

Games ◽  
2021 ◽  
Vol 12 (1) ◽  
pp. 26
Author(s):  
Leo Katz ◽  
Alvaro Sandroni
Keyword(s):  
Economic Theory ◽  
Bounded Rationality ◽  
Budget Constraints ◽  
The Law

This paper shows that the logical properties of constraints imposed by law are fundamentally different from other constraints considered in economics such as budget constraints and bounded rationality constraints, such as the ones based on inattention or shortlisting. This suggests that to fully incorporate law into economics may require a revision of economic theory.

Case Analysis: The Gabčíkovo-Nagymaros Case: The Law of Treaties

1998 ◽  
Vol 11 (2) ◽  
pp. 321-344 ◽  
Author(s):  
Malgosia Fitzmaurice
Keyword(s):  
International Law ◽  
Legal Status ◽  
Case Analysis ◽  
Vienna Convention ◽  
Fundamental Change ◽  
Unilateral Termination ◽  
The Subject ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

The subject-matter of this article are the issues of treaty law as expounded in the Judgment in the Gabčíkovo-Nagymaros case. The following problems are discussed: unilateral suspension and abandonment of obligations deriving from the binding treaty; the principle of fundamental change of circumstances; unilateral termination of a treaty; applicability of the 1969 Vienna Convention on the Law of Treaties in this case; legal status of so-called ‘provisional solution’; impossibility of performance and material breach of treaty; the application of the principle of ‘approximate application’; and the principle pacta sunt servanda. The issues arc discussed at the background of the Drafts of the International Law Commission.

COVID-19 și posibilele apărări în dreptul internațional: ar putea forța majoră și schimbarea fundamentetnală a circumstanțelor să justifice neexecutarea obligațiilor internaționale?

2020 ◽  
Vol 2020 (2020) ◽  
pp. 186-202
Author(s):  
Ion GÂLEA ◽  
Keyword(s):  
Public Opinion ◽  
International Law ◽  
Common Sense ◽  
Prima Facie ◽  
Fundamental Change ◽  
The Public ◽  
Force Majeure ◽  
International Obligations ◽  
International Responsibility ◽  
The Law

The study examines possible defences that States could invoke in order to justify or excuse measures designed to respond to the COVID-19 crisis, which prima facie might not be in conformity with certain international obligations. The study examines only defences available in general international law – beside certain exceptions that might be provided by the clauses of the respective treaties. Two grounds for suspending international obligations, stemming from the law of treaties – impossibility of performance and rebus sic stantibus – and three circumstances precluding wrongfulness, stemming from the law of international responsibility – force majeure, distress and state of necessity – are subject to examination. The study argues that, even if “common sense” might draw the public opinion towards the plausibility of invoking force majeure, impossibility of performance or fundamental change of circumstances, such a conclusion does not reflect general international law. In reality, the “best candidate” as a justification or excuse is distress, while the “second best candidate” might be represented by the state of necessity.

Rereading Rape in the Critical Canon

differences ◽  
2021 ◽  
Vol 32 (2) ◽  
pp. 122-160
Author(s):  
Erin A. Spampinato
Keyword(s):  
Sexual Assault ◽  
Sexual Violence ◽  
Literary Criticism ◽  
Rape Law ◽  
The Law ◽  
Criminal Conduct ◽  
Forms Of Violence ◽  
As If ◽  
Physical Outcomes

This essay identifies what the author terms “adjudicative reading,” a tendency in literary criticism to read novels depicting sexual violence as if in a court of law. Adjudicative reading tracks characters’ motivations and the physical outcomes of their actions as if novels can offer evidence, or lack thereof, of criminal conduct. This legalistic style of criticism not only ignores the fictionality of incidences of rape in novels, but it replicates the prejudices inherent in historical rape law by centering the experiences of the accused character over and against the harm caused to the fictional victim of rape. By contrast, the “capacious” conception of rape proposed here refuses to locate rape in a particular bodily act (as the law does), rejects the yoking of rape’s harms to a particular gender, and understands various forms of violence as equally serious (rather than creating a hierarchy of sexual assault, as current legal conceptions tend to do).

Pseudo-Restitutionary Damages: Some Thoughts on the Dual Theory of Restitution for Wrongs

2009 ◽  
Vol 22 (1) ◽  
pp. 49-78 ◽  
Author(s):  
Francesco Giglio
Keyword(s):  
The Other ◽  
Corrective Justice ◽  
Dual Theory ◽  
Judicial Decision ◽  
Legal Response ◽  
First Case ◽  
The Law ◽  
Compensatory Damages ◽  
Single Response

Restitution for civil wrongs, also known as restitutionary damages, is a legal response through which the defendant’s wrongful gain is awarded to the claimant. James Edelman has recently advocated two different restitutionary responses for wrongs. One response, termed ‘restitutionary damages’, would aim to compel the wrongdoer to give back to the victim a wrongful gain, whereas the other response, ‘disgorgement damages’, would oblige the wrongdoer to give up a wrongful gain for the benefit of the claimant.In the first case, the claimant would obtain what should have never left his assets. In the second case, the claimant would be the beneficiary of a judicial decision according to which a wrongful gain should not be kept by the wrongdoer. In this essay, I seek to demonstrate that this taxonomy cannot be accepted. I argue that Edelman’s ‘disgorgement damages’ are the only true example of restitution for wrongs, whereas his ’restitutionary damages’ are simply compensatory damages which are quantified in a particular fashion. Edelman’s ‘restitutionary damages’ might appear to deprive the defendant of his gain, and thus to achieve a restitutionary goal. Yet they nullify the victim’s loss and therefore have a compensatory nature. They are ‘pseudo-restitutionary damages’. In opposition to the dual theory, I submit a model of restitutionary damages based upon a single response which is coherent with the tenets of corrective justice. Given that it deals mainly with Edelman’s ‘restitutionary damages’, this article is not so much about restitution for wrongs but rather about compensation, which is what Edelman’s ‘restitutionary damages’ really concerns. The theory which I propose, based upon a single restitutionary response for wrongs, solves the taxonomic incoherence of Edelman’s dual theory. It also reflects the law as we find it, being supportable by reference to the available judicial authorities.

scholarly journals PREWEDDING PHOTO PROCESSION AND THE ROLE OF THE FAMILY IN THEM

2020 ◽  
Vol 10 (2) ◽  
pp. 246
Author(s):  
Aulil Amri
Keyword(s):  
Islamic Law ◽  
Religious Values ◽  
Religious Knowledge ◽  
The Family ◽  
Marriage Contract ◽  
The Law ◽  
Husband And Wife ◽  
As If

In Islamic law, pre-wedding photos have not been regulated in detail. However, pre-wedding photo activities have become commonplace by the community. It becomes a problem when pre-wedding is currently done with an intimate scene, usually the prospective bride uses sexy clothes and is also not accompanied by her mahram when doing pre-wedding photos. Even though there have been many fatwas and studies on the limits of permissibility and prohibition in the pre-wedding procession.The results show that the pre-wedding procession that is carried out by the community in terms of poses, clothes, and also assistance in accordance with Islamic law, the law is permissible. However, it often happens in the community to take photos before the marriage contract with scenes as if they are legally husband and wife and the bride's family knows without prohibiting, directing, and guiding them according to Islamic teachings. In this case the role of the family is very important, we as parents must understand the basis of religious knowledge and how to instill religious values in our children since childhood is the key to this problem dilemma.

scholarly journals Privacy, Corrective Justice, and Incrementalism: Legal Imagination and the Recognition of a Privacy Tort in Ontario

2013 ◽  
Vol 59 (1) ◽  
pp. 49-94 ◽  
Author(s):  
Thomas DC Bennett
Keyword(s):  
Detailed Analysis ◽  
Common Law ◽  
Corrective Justice ◽  
Judicial Activism ◽  
The Novel ◽  
Incremental Development ◽  
Privacy Laws ◽  
The Law ◽  
Court Of Appeal

This article considers the nature of common law development as exemplified by the recent privacy case of Jones v. Tsige. The author focuses on Jones, in which the Ontario Court of Appeal recognized the novel privacy tort of “intrusion upon seclusion”. Using a detailed analysis of the case as its basis, the article explores issues which have much wider significance for the judicial development of privacy laws: the process of incremental elaboration of the law, the moral impulses at work within it, and the relevance of imagination to its operations. By drawing out these discrete issues and analyzing the role that each plays in Jones, the article offers a framework for examining such questions in future privacy cases. Moreover, this article argues that the judgment in Jones brings valuable clarity to the analysis of the process of common law development. In particular, the essay concludes that the novel privacy tort recognized in Jones is the result of a legitimate incremental development rather than an instance of undue judicial activism.

Testing the Egocentric Mirror-Rotation Hypothesis

2010 ◽  
Vol 23 (5) ◽  
pp. 373-383 ◽  
Author(s):  
Cornelius Muelenz ◽  
Matthias Gamer ◽  
Heiko Hecht
Keyword(s):  
Virtual World ◽  
Experimental Setup ◽  
Mirror Surface ◽  
Localization Task ◽  
Two Stage ◽  
Egocentric Bias ◽  
The Law ◽  
Spatial Locations ◽  
As If

AbstractAlthough observers know about the law of reflection, their intuitive understanding of spatial locations in mirrors is often erroneous. Hecht et al. (2005) proposed a two-stage mirror-rotation hypothesis to explain these misconceptions. The hypothesis involves an egocentric bias to the effect that observers behave as if the mirror surface were rotated by about 2° to be more orthogonal than is the case. We test four variants of the hypothesis, which differ depending on whether the virtual world, the mirror, or both are taken to be rotated. We devised an experimental setup that allowed us to distinguish between these variants. Our results confirm that the virtual world — and only the virtual world — is being rotated. Observers had to perform a localization task, using a mirror that was either fronto-parallel or rotated opposite the direction of the predicted effect. We were thus able to compensate for the effect. The positions of objects in mirrors were perceived in accordance with the erroneous conception that the virtual world behind the mirror is slightly rotated and that the reconstruction is based on the non-rotated fronto-parallel mirror. A covert rotation of the mirror by about 2° against the predicted effect was able to compensate for the placement error.

opinion. It surely makes more sense to construe the words ‘so liable’ in s2(1) as merely referring to the general existence of damages under s2(1), which had formerly only existed in respect of fraudulent misrepresentation rather than as importing all the rules of fraud into what is, at root, a negligence action. In Smith New Court Ltd v Citibank NA, Lord Steyn at the very least raised a critical eyebrow. ‘The question is whether the rather loose wording of [s 2(1)] compels the court to treat a person who was morally innocent as if he was guilty of fraud when it comes to the measure of damages. There has been trenchant academic criticism of the Royscott case: see Richard Hooley ... (1991) 107 LQR 547. Since this point does not directly arise in the present case, I express no concluded view on the correctness of the decision in Royscott’. Of course, fact that fraud rules on damages and remoteness of loss apply to an action under s2(1) does not mean that all the rules applicable to actions for deceit are also applicable. For example, there may be different rules for the purposes of limitation of actions. Much of the law in relation to damages for fraudulent and negligent misrepresentations have been reviewed recently by the House of Lords in Smith New Court Securities Ltd v Citibank NA (originally Scrimgeour Vickers Ltd and Another). The case concerned the losses caused by the dramatic fall in

1995 ◽  
pp. 717-717
Keyword(s):  
House Of Lords ◽  
General Existence ◽  
The Law ◽  
Limitation Of Actions ◽  
Dramatic Fall ◽  
As If

1. Overview of tort law

2021 ◽  
pp. 3-26
Author(s):  
Christian Witting
Keyword(s):  
Tort Law ◽  
Corrective Justice ◽  
Theoretical Perspectives ◽  
History Of ◽  
The Law ◽  
Rights And Interests

This chapter provides an overview of tort law. It explains that tort law is a branch of the law of obligations which imposes liability for the breach of norms of conduct based on the type of interest at stake and/or the degree of fault present in the defendant. It provides a brief history of tort law. It then moves on to discuss the rights and interests protected by tort law. The chapter considers also theoretical perspectives on tort law. These concern such things as the bases of tortious liability and the issue of whether tort law should serve individual (eg, corrective justice) or social (eg, deterrence) goals.

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