This article explores the relevance of disagreement about values and about the functions and effects of law to debates concerning the appropriate relationship between courts and legislatures, common law and statute. Recent developments in tort law provide a context for the discussion. The argument is that in general, political processes of law-making should be preferred judicial processes.

This paper deals with the role of tort in the field of chemical air pollution regulation during the period 1863, when the first statutory intervention occurred, and 1881, when reforms to both the common law and statute were enacted. It compares the prominence of tort in this context with its significance in the field of injury to factory workers. The implications of tort's relevance in these contexts are then examined, having particular regard to those historiographies of Victorian (...) government growth in which the part played by tort is neglected. (shrink)

This thesis considers two allegations which conservatives often level at no-fault systems — namely, that responsibility is abnegated under no-fault systems, and that no-fault systems under- and over-compensate. I argue that although each of these allegations can be satisfactorily met – the responsibility allegation rests on the mistaken assumption that to properly take responsibility for our actions we must accept liability for those losses for which we are causally responsible; and the compensation allegation rests on the mistaken assumption that (...) class='Hi'>tort law’s compensatory decisions provide a legitimate norm against which no-fault’s decisions can be compared and criticized – doing so leads in a direction which is at odds with accident law reform advocates’ typical recommendations. On my account, accident law should not just be reformed in line with no-fault’s principles, but rather it should be completely abandoned since the principles that protect no- fault systems from the conservatives’ two allegations are incompatible with retaining the category of accident law, they entail that no-fault systems are a form of social welfare and not accident law systems, and that under these systems serious deprivation – and to a lesser extent causal responsibility – should be conditions of eligibility to claim benefits. (shrink)

This article offers arefutation of the corrective justiceinterpretation of tort law – the view that itis essentially a system of corrective justice. It introduces a distinction between primary andsecondary tort duties and claims that tort lawis best understood as the union of its primaryand secondary duties. It then advances twoindependent criticisms of the correctivejustice interpretation. The article firstargues that primary tort duties have nothingfundamentally to do with corrective justice andthat, if one understands what is meant by``primary (...) tort duties,'' one is compelledto regard this fact as a decisive objection tothe corrective justice interpretation. Second,it argues that, whatever relation thereis between secondary tort duties and correctivejustice, that relation also holds betweencorrective justice and secondary duties ofother legal branches. In sum, the concept ofcorrective justice is neither capable ofunifying tort law nor of demarcating it fromother legal branches.The article also offers a general alternativeinterpretation of tort law. Rather thanbeing essentially corrective, tort law isessentially protective. Under this picture, iftort law has a most important point, it is theprotection of legal subjects and valuablesocial interests from harm. This is theoverarching ambition that unifies primary andsecondary tort duties. It does not, however,demarcate tort law from other legal branches. (shrink)

Le matérialisme que ce livre interroge et construit n'est pas une « philosophie », mais la condition de possibilité et l'outil de la connaissance objective. Historiquement, il se confond, de fait, avec l'élaboration de la science moderne s'affranchissant graduellement des contrats de parole qui l'asservirent longtemps à la métaphysique et à la théologie. Comment cette émancipation s'est-elle effectuée en des temps où une croyance instituée dictait sa loi théologico-politique aux efforts de la connaissance en leur imposant a priori la limite (...) de l'Inconnaissable? Comment d'autre part, face à cet affranchissement toujours inachevé, une métaphysique résiduelle impose-t-elle encore aux artisans de la connaissance objective, sans qu'ils s'en doutent, des cadres, des frontières, des démarches et des représentations? Ce livre montre qu'une analyse savante des complexes de discours dans l'histoire, à travers ce qu'elle explique du passé, peut permettre de comprendre et d'améliorer ce qui constitue proprement aujourd'hui l'acte de connaître. De redéfinir la « conscience ». De sortir des leitmotivs exténués sur le « hasard ». De penser plus authentiquement la singularité émergente du vivant. De s'éloigner d'un modèle strictement nécessitariste du « déterminisme ». De sortir des impasses avérées du réductionnisme. De résoudre les contradictions tacitement acceptées entre matérialisme et morale, ou entre déterminisme et conduites autonomes. D'entrevoir l'origine du symbolisme. De comprendre la nature originellement et fondamentalement politique de la religion. De penser l'articulation évolutive entre « nature » et « civilisation », et un lien cohérent et critique entre sciences de la nature et sciences de la société. D'identifier les comportements discursifs récurrents de ce que l'on nomme l'« idéologie ». Et d'édifier sur de nouvelles bases une histoire naturelle et sociale de la liberté. Revenant sur une part essentielle de son oeuvre, Patrick Tort invite ici à une véritable réforme logique de l'initiative de connaissance, et, simultanément, à instruire la méthode capable d'éclairer les mécanismes qui la favorisent et la combattent dans l'univers infini des discours. (shrink)

This study explored the relation between state medical liability reform measures, hospital malpractice costs, and hospital solvency. It suggests that state malpractice caps are desirable but not essential for improved hospital financial solvency or viability.

In "Torts, Egalitarianism and Distributive Justice" , Tsachi Keren-Paz presents impressingly detailed analysis that bolsters the case in favour of incremental tort law reform. However, although this book's greatest strength is the depth of analysis offered, at the same time supporters of radical law reform proposals may interpret the complexity of the solution that is offered as conclusive proof that tort law can only take adequate account of egalitarian aims at an unacceptably high cost.

Background Euthanasia is a controversial practice in many countries. Since Spain’s Euthanasia Law came into effect on March 24, 2021, healthcare providers have faced a new challenge since they must inform patients, provide care, accompany them, and implement the law. It also represents a new stumbling block at universities, which must adapt to regulatory changes and educate future professionals accordingly. Little is known about the attitude of nursing students in Spain toward euthanasia since this law was implemented. Objective This study (...) aims to answer the following research questions: What is the attitude of nursing students toward euthanasia? What factors influence this attitude? Research design A cross-sectional study was conducted using an online questionnaire. Participants and research context The study population comprised all nursing students at a public university in Barcelona ( n = 444), Spain, during the 2022–2023 academic year. The validated Spanish version of the Euthanasia Attitude Scale was employed. A bivariate analysis was performed. Ethical considerations The university Ethics Committee (CEEAH 6247) approved this study. All participating students signed an informed consent form. Participation was voluntary, and data anonymity and confidentiality were guaranteed. Results Two hundred and forty-four nursing students responded to the questionnaire. The mean total score was 79.64. Participants with religious beliefs presented lower scores, indicating a more negative attitude toward euthanasia. Participants in their second, third, or fourth year of the nursing degree scored higher, demonstrating a more positive attitude. Conclusions The attitude of nursing students toward euthanasia was remarkably positive. Working on ethical content during the degree course and clinical practice are factors that help to develop a more positive attitude. In addition, nursing education should encourage professional aspects to prevail over religious beliefs in euthanasia situations. (shrink)

This chapter provides a survey of Kierkegaard's views of systematic theology, doctrine, and dogmatics. It demonstrates that while Kierkegaard's view of theology is generally negative, for he regards it as a human enterprise created in order to avoid doing God's Word, his attitude to doctrine and dogmatics is nuanced and complex. Kierkegaard rejects doctrine insofar as it objectifies Christianity, but nevertheless generally accepts the classic doctrines of the Christian faith and sees no reason to reform them. This ambivalence toward (...) doctrine stems from his conviction that the task facing the believer is not to reflect on doctrine, but to appropriate and apply it existentially to his/her own individual existence. Similarly, although Kierkegaard rejects the efforts of contemporary dogmaticians, dogmatics itself is valid insofar as it reproduces the paradoxical character of Christianity and the decision between faith and offense with which Christian dogmas confront every human being. (shrink)

The theological energies released by Martin Luther in 1517 created a set of theological insights and problems that eventually led to the development of kenotic Christology. This article traces how kenotic Christology originated in the Eucharistic Controversy between Luther and Zwingli, before receiving its first extensive treatment in the debate between the Lutheran theologians of Tübingen and Giessen in,the early seventeenth century. Attention then turns to the nine-teenth century, when doctrinal tensions resulting from the enforced union of the Prussian Lutheran (...) and Reformed churches created the conditions for a new flowering of kenotic Christology in the theologies of Ernst Sartorius and, subsequently, Gottfried Thomasius. Kenotic Christology ultimately originates with Luther, however, for it owes its existence to the creative theological energies he unleashed and which remain his lasting legacy. (shrink)

Music reflects subjectivity and identity: that idea is now deeply ingrained in both musicology and popular media commentary. The study of music across cultures and practices often addresses the enactment of subjectivity "in" music - how music expresses or represents "an' individual or "a" group. However, a sense of selfhood is also formed and continually reformed through musical practices, not least performance. How does this take place? How might the work of practitioners reveal aspects of this process? In what sense (...) is subjectivity performed in and through musical practices? This book explores these questions in relation to a range of artistic research involving contemporary musical practices, drawing on perspectives from performance studies, phenomenology, embodied cognition, and theories of gendered and cultural identity. (shrink)

It could be argued that tort law is failing, and arguably an example of this failure is the recent public liability and insurance (‘PL&I’) crisis. A number of solutions have been proposed, but ultimately the chosen solution should address whatever we take to be the cause of this failure. On one account, the PL&I crisis is a result of an unwarranted expansion of the scope of tort law. Proponents of this position sometimes argue that the duty of care (...) owed by defendants to plaintiffs has expanded beyond reasonable levels, such that parties who were not really responsible for another’s misfortune are successfully sued, while those who really were to blame get away without taking any responsibility. However people should take responsibility for their actions, and the only likely consequence of allowing them to shirk it is that they and others will be less likely to exercise due care in the future, since the deterrents of liability and of no compensation for accidentally self-imposed losses will not be there. Others also argue that this expansion is not warranted because it is inappropriately fueled by ‘deep pocket’ considerations rather than by considerations of fault. They argue that the presence of liability insurance sways the judiciary to award damages against defendants since they know that insurers, and not the defendant personally, will pay for it in the end anyway. But although it may seem that no real person has to bear these burdens when they are imposed onto insurers, in reality all of society bears them collectively when insurers are forced to hike their premiums to cover these increasing damages payments. In any case, it seems unfair to force insurers to cover these costs simply because they can afford to do so. If such an expansion is indeed the cause of the PL&I crisis, then a contraction of the scope of tort liability, and a pious return to the fault principle, might remedy the situation. However it could also be argued that inadequate deterrence is the cause of this crisis. On this account the problem would lie not with the tort system’s continued unwarranted expansion, but in the fact that defendants really have been too careless. If prospective injurers were appropriately deterred from engaging in unnecessarily risky activities, then fewer accidents would ever occur in the first place, and this would reduce the need for litigation at its very source. If we take this to be the cause of tort law’s failure then our solution should aim to improve deterrence. Glen Robinson has argued that improved deterrence could be achieved if plaintiffs were allowed to sue defendants for wrongful exposure to ongoing risks of future harm, even in the absence of currently materialized losses. He argues that at least in toxic injury type cases the tortious creation of risk [should be seen as] an appropriate basis of liability, with damages being assessed according to the value of the risk, as an alternative to forcing risk victims to abide the outcome of the event and seek damages only if and when harm materializes. In a sense, Robinson wishes to treat newly-acquired wrongful risks as de-facto wrongful losses, and these are what would be compensated in liability for risk creation (‘LFRC’) cases. Robinson argues that if the extent of damages were fixed to the extent of risk exposure, all detected unreasonable risk creators would be forced to bear the costs of their activities, rather than only those who could be found responsible for another’s injuries ‘on the balance of probabilities’. The incidence of accidents should decrease as a result of improved deterrence, reduce the ‘suing fest’, and so resolve the PL&I crisis. So whilst the first solution involves contracting the scope of tort liability, Robinson’s solution involves an expansion of its scope. However Robinson acknowledges that LFRC seems prima facie incompatible with current tort principles which in the least require the presence of plaintiff losses, defendant fault, and causation to be established before making defendants liable for plaintiffs’ compensation. Since losses would be absent in LFRC cases by definition, the first evidentiary requirement would always be frustrated, and in its absence proof of defendant fault and causation would also seem scant. If such an expansion of tort liability were not supported by current tort principles then it would be no better than proposals to switch accident law across to no-fault, since both solutions would require comprehensive legal reform. However Robinson argues that the above three evidentiary requirements could be met in LFRC cases to the same extent that they are met in other currently accepted cases, and hence that his solution would therefore be preferable to no-fault solutions as it would only require incremental but not comprehensive legal reform. Although I believe that actual losses should be present before allowing plaintiffs to seek compensation, I will not present a positive argument for this conclusion. My aim in this paper is not to debate the relative merits of Robinson’s solution as compared to no-fault solutions, nor to determine which account of the cause of the PL&I crisis is closer to the truth, but rather to find out whether Robinson’s solution would indeed require less radical legal reform than, for example, proposed no-fault solutions. I will argue that Robinson fails to show that current tort principles would support his proposed solution, and hence that his solution is at best on an even footing with no-fault solutions since both would require comprehensive legal reform. (shrink)

For the first time, full coverage of the intersections of philosophy and law From articles centering on the detailed and doctrinal exposition of the law to those which reside almost wholly within the realm of philosophical ethics, this volume affords comprehensive treatment to both sides of the philosophicolegal equation. Systematic and sustained coverage of the many dimensions of legal thought gives ample expression to the true breadth and depth of the philosophy of law, with coverage of: *The modes of knowing (...) and the kinds of normativity used in the law *Studies in international, constitutional, criminal, administrative, persons and property, contracts and tort law-including their historical origins and worldwide ramifications *Current legal cultures-such as common law and civilian, European, and Aboriginal *Influential jurisprudents and their biographies *All influential schools and methods Coverage of all major historical, cultural, and geographical settings for legal philosophy A thorough understanding of any legal issue necessitates an acquaintance with its antecedents and its corollaries. Thus, added to the consideration of other current legal cultures outside of North America are treatments of other periods significant to legal thinking, such as the Hellenistic, Sixteenth-century, or Federalist. Discussion of the practice of legal philosophy today In every major area where public policy gives rise to philosophical inquiry regarding the law, debates and discussions are covered in full: tort reform, protection of life and death, gay rights, objectives in punishment, non-putative detention, international deterrence, legitimacy of government. And the historical and international dimensions of these issues-how they are resolved in other times and places-are not lost. Contributions from prominent legal and philosophical scholars from around the world The international array of more than 300 contributors from over forty countries complements the volume's international scope. With many contributors being forces in the very debates they write of, some fifty percent of them work in the law-as judges, jurists or jurisprudence-and another half are philosophers in the social sciences and humanities. Their work spans the practice that is taken for philosophy of law today. Special features *Contributions of more than 300 international scholars from more than 40 countires *Extensive bibliographies at the end of each entry *Detailed subject guide for easy access to the main topics covered *Comprehensive, analytical index. (shrink)

Different cultures, different lenses -- Various approaches to risk in the legal system -- Institutional background -- Regulation -- Tort law generally -- Information about risk and assumption of risk -- Medical malocurrences -- The duty/proximite cause problem -- Scientific evidence -- Tort reform -- Statutory compensation systems.

The general consensus is that reform of medical malpractice law should be part of the health care system's overhaul. Medical malpractice litigation results in the expenditure of tens of billions annually, largely paid out of health care insurance funds and mostly paid to defendants' and plaintiffs' lawyers. By all accounts, this tort law regime ill serves the basic deterrence and compensation goals of civil liability. The causes and magnitude of these failings are disputed, and many typical reform (...) proposals sidestep the basic problems and may do more harm than good. In contrast, we advance a straightforward way to improve both deterrence and compensation. Essentially, the proposal is to remove current legal limitations on the scope of insurance subrogation that bar private and public health care insurers from “buying” the whole of their insureds' potential medical malpractice claims in exchange for lower premiums and taxes and expanded insurance coverage. Our proposal’s benefits accrue regardless of the cause and magnitude of the failings of malpractice law or the further reforms that might be adopted. (shrink)

Many recent decisions in tort law attempt to combine two conceptually incommensurable features: a traditional 'but for' test of factual causation, and the scientific or medical evidence that is required to explain how some injury occurred. Even when applied to macroscopic objects, the 'but for' test fails to identify causes, because it merely rephrases in the language of possible worlds what may be inferred from what is inductively known about the actual world. Since scientific theories explain the occurrence of (...) events without reference to causes, this test of causation is not only ineffectual but also inapplicable to scientific or medical evidence. Tort law, therefore, should abandon the 'but for' test; when scientific or medical evidence is required in a tort case, the courts should rely on the explanatory strategies that function within the theories from which they borrow such evidence. (shrink)

This article examines the notorious mid-nineteenth-century American trial of Amelia Norman, who was acquitted - very much against the weight of the evidence - of attempting to kill the man who seduced her. In particular, we explore the role in the trial and its aftermath of the affective energies and cultural expectations set in motion by best-selling American sentimental novels like Hannah Foster's "The Coquette" and Susanna Rowson's "Charlotte Temple." In Norman's case, once newspapers, defense lawyers, and reformers such as (...) Lydia Maria Child recast the defendant as a sentimental heroine, the trial became about seduction, not attempted murder. The sentimental emplotment of Norman's life marshaled a powerful set of emotional responses and moral judgments on her behalf. For example, Norman claimed insanity. And since sentimental heroines are supposed to go mad when they are seduced and abandoned, the jury was prepared to interpret her symptoms according to her lawyers' very strategy for establishing her innocence. Ultimately, however, Norman embodied the plight of the sentimental heroine at the same time that she contested her fictional counterpart's fate. In this way, her trial spectacularized the disparity which the sentimental novel conjures up and displaces but never resolves. Going further, the common law theory of coverture, which severely limited the legal personhood of married women, has received a great deal of scholarly attention. Cases like Norman's remind us that unmarried women were also subject to draconian constraints on their legal personhood. The tort of seduction is a key example. Legal historians trace the development of the seduction tort from its common-law origins, when men's property interest in women's bodies formed the basis of the cause of action, to 1851, when Field Code authors (including Norman's lawyer, David Graham) persuaded several states to grant seduced women standing to bring their own cause of action. Consequently, courts were forced to reckon with the seduced woman as a moral agent capable of consenting to sex. As trials like Norman's demonstrate, sentimental novels helped lay the groundwork for this shift in the law by elucidating a subjectivity for the seduced woman. Yet the doctrinal implications of Norman's precedent-setting trial had a second, more ambiguous strain. Other women facing similar charges used the same legal strategy to gain acquittals in a substantial number of cases. Indeed, Norman's sentimental strategy proved so powerful that men on trial for killing their wives' seducers appropriated it to bring their own stories before juries and to reinforce male sexual norms through the so-called honor defense. In the end, then, Norman's trial fostered legal reform, but it also suggested - as Lydia Maria Child's fictionalization of the case in "Rosenglory" recognized - that only sustained and multifaceted efforts to change cultural as well as legal norms could improve the sexual status of women. In addition to its legal, literary, and historical insights that it provides, we also intend this article to contribute to debates on the nature of scholarship in law and literature. Scholars such as Wai Chee Dimock have argued for a focus on the historical and historically shifting relations between law and literature - a view we endorse. Where we differ from Dimock is in our diversion of attention away from abstract ideas of law laid out by treatise writers and philosophers in favor of law experienced and manipulated by individuals. So, too, we are interested less in representations of concepts such as justice in legal and literary texts than we are in the ways in which literature (broadly conceived) can create provisional and fragile opportunities for concrete instantiations of justice and even generate legal change (for good or ill). We would argue that to the extent legal change motivates rather than simply mirrors cultural change, it needs literature to be effective. This project, then, responds to Gregg Crane's call for attention to the complex and slippery historical interactions of law and literature that shape and are shaped by an ever changing cultural idiom of justice. The extended story of Amelia Norman, in short, not only constitutes a case study in the inescapable interaction between the overlapping and interdependent discourses of law and literature, but also reveals the literary and legal consequences of that interaction. (shrink)

Whereas conventional analyses characterize environmental problems as examples of market failure, proponents of free-market environmentalism (FME) consider the problem to be a lack of markets and, in particular, a lack of enforceable and exchangeable property rights. Enforcing property rights alleviates disputes about, as well as the overuse of, most natural resources. FME diagnoses of pollution are much weaker, however. Most FME proponents suggest that common-law tort suits can adequately protect private property and ecological resources from pollution. Yet such claims (...) have not been substantiated. Further research is needed before the common law, or regulatory reforms grounded in common-law principles, can be seen as a viable alternative to traditional environmental regulation. (shrink)

Whereas conventional analyses characterize environmental problems as examples of market failure, proponents of free-market environmentalism (FME) consider the problem to be a lack of markets and, in particular, a lack of enforceable and exchangeable property rights. Enforcing property rights alleviates disputes about, as well as the overuse of, most natural resources. FME diagnoses of pollution are much weaker, however. Most FME proponents suggest that common-law tort suits can adequately protect private property and ecological resources from pollution. Yet such claims (...) have not been substantiated. Further research is needed before the common law, or regulatory reforms grounded in common-law principles, can be seen as a viable alternative to traditional environmental regulation. (shrink)

Tort law and liability insurance have a complex interaction in which each shapes the evolution and effects of the other. This interaction and its many forms and facets in different international contexts must be comprehended to understand fully the ethical responsibilities of liability insurers. This essay builds on previous scholarship on the tort law–liability insurance interaction through a series of observations from the perspective of a global reinsurer. It seeks in part to extend previous analyses of this interaction (...) by also considering issues in the developing world. It seeks to make some normative questions and stances explicit concerning this interaction, as well as to identify some empirical questions that still need to be answered. The responsibility of liability insurers includes ethically shaping the responsibility of others in interaction with tort law in countless diverse situations. (shrink)

This article offers arefutation of the corrective justiceinterpretation of tort law – the view that itis essentially a system of corrective justice. It introduces a distinction between primary andsecondary tort duties and claims that tort lawis best understood as the union of its primaryand secondary duties. It then advances twoindependent criticisms of the correctivejustice interpretation. The article firstargues that primary tort duties have nothingfundamentally to do with corrective justice andthat, if one understands what is meant by``primary (...) tort duties,'' one is compelledto regard this fact as a decisive objection tothe corrective justice interpretation. Second,it argues that, whatever relation thereis between secondary tort duties and correctivejustice, that relation also holds betweencorrective justice and secondary duties ofother legal branches. In sum, the concept ofcorrective justice is neither capable ofunifying tort law nor of demarcating it fromother legal branches.The article also offers a general alternativeinterpretation of tort law. Rather thanbeing essentially corrective, tort law isessentially protective. Under this picture, iftort law has a most important point, it is theprotection of legal subjects and valuablesocial interests from harm. This is theoverarching ambition that unifies primary andsecondary tort duties. It does not, however,demarcate tort law from other legal branches. (shrink)

This book develops a theory of tort law that integrates deontic and consequential approaches by applying justificational analysis to identify the factors, circumstances, and values that shape tort law. Drawing on Kantian and Rawlsian philosophy, and on the insights of game theorist Ken Binmore, this book refocuses tort law on a single theory of responsibility that explains and justifies the broad range of tort doctrine and concepts. Under this theory, tort law asks people to appropriately (...) incorporate the well-being of others into the decisions they make, explains when that duty applies, and explains the scope and limits of that duty. The theory also incorporates a theory of the evolutionary development of social values that people use, and ought to use, in meeting that duty and explains how decision-making from behind the veil of ignorance allows us to evaluate the is in light of the ought. (shrink)

In the twentieth century, two Nobel-Prize winning economists wrote two seemingly unrelated characterizations of the processes constraining human behavior. One, Ronald Coase, wrote a short article entitled The Nature of the Firm,1 in which he reduced all managerial decision-making to a fundamental choice between making the factors of production, or buying them. This article and the idea of the "make or buy" decision for which it has come to be known, have proven to be among the most seminal in the (...) history of financial economics and organizational behavior. The second economist, Friedrich Hayek, wrote what he thought to be a comprehensive treatment of the approach that ought to be taken to the generation of rules constraining human interaction. This voluminous work, Law, Legislation and Liberty, characterized the creation of legal rules as the product of either spontaneous or planned orders. Hayek argued that spontaneous orders like "law" were more efficient mechanisms for governing human behavior than planned orders like "legislation." 2 This thesis received a lukewarm reception generally, and virtually no reception at all in legal circles. This Article demonstrates that Coase and Hayek were actually making the same observation, albeit in different contexts. Hayek's conception of the two sources of order is, in fact, a more abstract application of Coase's "make or buy" decision. Had Hayek understood his characterization of legal processes to be a variant of Coase's "Theory of the Firm," his ideas may have received more traction. Lawyers, judges, and lawmakers may also have understood some of the implications of Hayek's thesis for constraining legal actors, as well as its applications in current debates on the scope of administrative agency authority, tort reform, or the use of legislative history in litigation. (shrink)

This article offers a refutation of the corrective justice interpretation of tort law – the view that it is essentially a system of corrective justice. It introduces a distinction between primary and secondary tort duties and claims that tort law is best understood as the union of its primary and secondary duties. It then advances two independent criticisms of the corrective justice interpretation. The article first argues that primary tort duties have nothing fundamentally to do with (...) corrective justice and that, if one understands what is meant by ``primary tort duties,'' one is compelled to regard this fact as a decisive objection to the corrective justice interpretation. Second, it argues that, whatever relation there is between secondary tort duties and corrective justice, that relation also holds between corrective justice and secondary duties of other legal branches. In sum, the concept of corrective justice is neither capable of unifying tort law nor of demarcating it from other legal branches.The article also offers a general alternative interpretation of tort law. Rather than being essentially corrective, tort law is essentially protective. Under this picture, if tort law has a most important point, it is the protection of legal subjects and valuable social interests from harm. This is the overarching ambition that unifies primary and secondary tort duties. It does not, however, demarcate tort law from other legal branches. (shrink)

How can tort law be justified? There are well-known difficulties with the three traditional theories of tort law dominating the literature (namely, economic theory, corrective justice theory, and civil recourse theory). Recently, some have turned to moral contractualism in search of tort law’s foundation. One of the most prominent attempts was made by Gregory Keating. Keating’s account, however, has been subjected to powerful objections. In a recent paper, John Oberdiek, through a sympathetic critique of Keating’s account, develops (...) a new version of contractualist tort theory that is alleged to be at once superior to the three traditional theories of tort law and immune to the objections to Keating’s account. The aim of my paper is to critically assess Oberdiek’s account; I will argue that, while Oberdiek’s account does improve upon Keating’s in some important respects, it is ultimately unsatisfactory. (shrink)

In this paper I discuss the proposal that the law of torts exists to do justice, more specifically corrective justice, between the parties to a tort case. My aims include clarifying the proposal and defending it against some objections (as well as saving it from some defences that it could do without). Gradually the paper turns to a discussion of the rationale for doing corrective justice. I defend what I call the ‘continuity thesis’ according to which at least part (...) of the rationale for doing corrective justice is to mitigate one’s wrongs, including one’s torts. I try to show how much of the law of torts this thesis helps to explain, but also what it leaves unexplained. In the process I show (what I will discuss in a later companion paper) that ‘corrective justice’ cannot be a complete answer to the question of what tort law is for. (shrink)

This essay discusses unlimited insurance subrogation (UIS) as a means of improving the deterrence and compensation results of medical malpractice law. Under UIS, health care insureds could assign their entire potential medical malpractice claims to their first-party commercial and government insurers. UIS should improve deterrence by establishing first-party insurers as plaintiffs to confront liability insurers on the defense side, leading to more effective prosecution of meritorious claims and reducing meritless and unnecessary litigation. UIS should improve compensation outcomes by converting litigation (...) cost- and risk- laden “tort insurance” into cheaper and enhanced first-party insurance. UIS also promises dynamic benefits through further reforms by contract between the first-party and liability insurers that would take charge of system. No UIS-related costs are apparent that would outweigh these benefits. (shrink)

This chapter contains sections titled: Economic Theories: Internalization Economic Theories: Deterrence Economic Theories: Loss Spreading Rights‐Based Theories and Distributive Justice Rights‐Based Theories and Corrective Justice References.

According to the established orthodoxy, the law of private wrongs—especially common law torts—fails to map onto our moral universe. Four objections in particular have caught the imagination of skeptics about the moral foundations of tort law: They purport to cast doubt over the moral appeal of the duty of care element; they target the seemingly inegalitarian objective standard of care; they object to the morally arbitrary elements of factual causation and harm; and they complain about the unnecessary extension of (...) liability under the guise of the proximate cause element. Analyzing these four prevailing arguments concerning the a-moral (and, with regard to some interpretations, anti-moral) character of tort law, I shall seek to show that the normative structure of tort law can, nonetheless, be reconstructed so as to reflect, to an important extent, our considered judgments about basic moral principles. (shrink)

This exceptional collection of twenty-two essays on the philosophical fundamentals of tort law assembles many of the world's leading commentators on this particularly fascinating conjunction of law and philosophy. The contributions range broadly, from inquiries into how tort law derives from Aristotle, Aquinas, and Kant to the latest economic and rights-based theories of legal responsibility. This is truly a multi-national production, with contributions from several distinguished Oxford scholars of law and philosophy and many prominent scholars from the United (...) States, Canada, and Israel. A provocative closing essay by one of the world's leading moral philosophers illuminates how tort law enables philosophers to observe the abstract theories of their discipline put to the concrete test in the legal resolution of real-world controversies based on principles of right and wrong. (shrink)

This chapter contains section titled: Pushed by Problems in Law and Policy The Nature of the Criminal Law Jurisprudence and Legal Theory Moral and Political Philosophy Conclusion References.

The essays in this volume are the result of a project on Values in Tort Law directed by the Westminster Institute for Ethics and Human Values. We are indebted to the Board of Westminster Col lege for its financial support. The project involved two meetings of a mixed group of lawyers and philosophers to discuss drafts of papers and general issues in tort law. Beyond the principal researchers, whose papers appear here, we are grateful to John Bargo, Dick (...) Bronaugh, Craig Brown, Earl Cherniak, Bruce Feldthusen, Barry Hoffmaster and Steve Sharzer for their helpful discussion, and to Nancy Margolis for copy editing. All of these papers except one have appeared before in the journal Law and Philosophy (Vol. 1 No.3, December 1982 and Vol. 2 No.1, Apri11983). Chapman's paper which was previously published in The University of Western Ontario Law Review (Vol. 20 No.1, 1982) appears here with permission. Westminster Institute for Ethics and Human Values, M.D.B. Westminster College, London, Canada B.C. vii INTRODUCTION The law of torts is society's primary mechanism for resolving disputes arising from personal injury and property damage. (shrink)

This article considers the way in which injunctions have generally been made more freely available in tort in connection with the protection of property and property-like interests. It argues that this prioritization of property can be viewed as undermining the generally accepted hierarchy of protected interests. It then argues that if negligence law were seen as a tort that embraces not just careless, but also deliberate and reckless conduct, it could be used as a basis for granting injunctions (...) in a number of important circumstances that would help to restore the right to bodily integrity to its rightful place at the top of the hierarchy of protected interests in tort law. (shrink)

The union of contemporary philosophy and tort law has never been better. Perhaps the most dynamic current in contemporary tort theory concerns the increasingly sophisticated inquires into the doctrinal elements of the law of torts, with the tort of negligence in particular garnering the most attention from theorists. In this article, I examine philosophically rich issues revolving around each of the elements constituting the tort of negligence: compensable injury, duty, breach, actual cause, and proximate cause.

The traditional, intuitively appealing, test for causation in tort law, known as 'the but-for test' has been subjected to what are widely believed to be devastating criticisms by Tony Honore, and Richard Wright, amongst others. I argue that the but-for test can withstand these criticisms. Contrary to what is now widely believed. there is no inconsistency between the but-for test and ordinary language, commonsense, or sound legal principle.

Empirical research in this field has underlined the diversity of the cohabitation population, the existence of the common law marriage myth and the lack of consensus on the best way forward for reform of the law in England and Wales. Against the backdrop of the English Law Commission’s on-going project on cohabitation law, this article will explore the reasons found by recent research for people’s choice of cohabitation over marriage, the interrelationship between commitment and economic vulnerability and the tension (...) in feminist debates as to whether an extension of rights for opposite-sex cohabitants that are analogous to married spouses (either by an opt-in model or opt-out model) might be an appropriate solution or a reinforcement of patriarchal marriage values. It will also consider, given recent research findings and other initiatives aimed at raising awareness about the legal differences between different styles of cohabitation relationship, law’s dual and conflicting role in shaping regulated family structures whilst both protecting vulnerable family members inside and outside such structures and at the same time also offering socially acceptable standards of dispute resolution in this most personal of spheres. (shrink)

Our paper explores how the affective energies and cultural expectations set in motion by best-selling American sentimental novels like Hannah Foster's The Coquette and Susanna Rowson's Charlotte Temple informed the notorious mid-nineteenth-century American trial of Amelia Norman, who attempted to kill the man who seduced her. Once newspapers, defense lawyers, and reformers such as Lydia Maria Child recast the defendant as a sentimental heroine, the trial became about seduction, and Norman was acquitted against the weight of the evidence. Sentimental novels (...) turn on the contrast between the passive victim status of the heroine and the active libidinal quest of the rake-villain. As Cathy Davidson points out, this fiction is "about silence, subservience, stasis (the accepted attributes of women as traditionally defined) in contradistinction to conflicting impulses toward independence, action, and self expression (the ideals of the new American nation)." The seduction plot diverts attention from this disparity by establishing an affective solidarity between heroine and reader and elevating the ruined woman to a tragic status. The sentimental emplotment of Norman's life marshaled a powerful set of emotional responses and moral judgements on her behalf. Norman claimed insanity. And since sentimental heroines are supposed to go mad when they are seduced and abandoned, the jury was prepared to interpret her symptoms according to her lawyers' very strategy for establishing her innocence. Ultimately, however, Norman embodied the plight of the sentimental heroine at the same time that she contested her fictional counterpart's fate. In this way, her trial spectacularized the disparity which the sentimental novel conjures up and displaces but never resolves. The common law theory of coverture, which severely limited the legal personhood of married women, has received a great deal of scholarly attention. Cases like Norman's remind us that unmarried women were also subject to draconian constraints on their legal personhood. The tort of seduction is a key example. Legal historians trace the development of the seduction tort from its common-law origins, when men's property interest in women's bodies formed the basis of the cause of action, to 1851, when Field Code authors (including Norman's lawyer David Graham) persuaded several states to grant seduced women standing to bring their own cause of action. Consequently, courts were forced to reckon with the seduced woman as a moral agent capable of consenting to sex. As trials like Norman's demonstrate, sentimental novels helped lay the groundwork for this shift in the law by elucidating a subjectivity for the seduced woman. Yet the doctrinal implications of Norman's precedent-setting trial had a second, more ambiguous strain. Norman's sentimental strategy proved so powerful that men on trial for killing their wive's seducers appropriated it to bring their own stories before juries and to reinforce male sexual norms. In the end, then, Norman's trial fostered legal reform, but it also suggested - as Child's fictionalization of the case in "Rosenglory" recognized - that only sustained and multifaceted efforts to change cultural as well as legal norms could improve the sexual status of women. Scholars such as Wai Chee Dimock have argued for a focus "on the historical and historically shifting relations between law and literature" - a view we endorse. Where we differ from Dimock is in our diversion of attention away from abstract ideas of law laid out by treatise writers and philosophers in favor of law experienced and manipulated by individuals. So, too, we are interested less in representations of concepts such as justice in legal and literary texts than we are in the ways in which literature (broadly conceived) can create provisional and fragile opportunities for concrete instantiations of justice and even generate legal change (for good or ill). Going further, we would argue that to the extent legal change motivates rather than simply mirrors cultural change, it needs literature to be effective. Thus, we see no need to characterize - and indeed reject the depiction of - law as "a limited arena" in which ideas of morality have little place. This project, then, responds to Gregg Crane's call for attention to "the complex and slippery historical interactions of law and literature that shape and are shaped by an ever changing cultural idiom of justice." The extended story of Amelia Norman not only constitutes a case study in the inescapable interaction between the overlapping and interdependent discourses of law and literature, but also reveals the literary and legal consequences of that interaction. (shrink)