Economic Analysis of Tort Liability
In: International Journal of Law, Vol. 6.3 (http://www.lawjournals.org/archives/2020/vol6/issue3/6-2-52)
In: International Journal of Law, Vol. 6.3 (http://www.lawjournals.org/archives/2020/vol6/issue3/6-2-52)
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Working paper
In: Mullany and Linden (Eds.) Torts Tomorrow: A Tribute to John Fleming (LBC Information Services, Sydney, 1998), pp.221-243
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In: European Review of Private Law, Band 3, Heft 3, S. 427-444
ISSN: 0928-9801
Abstract. The law of tort serves two main functions: compensation of damage and prevention of damage. During the period of industrialisation in the nineteenth century the law aimed to secure the greatest possible freedom of action for economic operators and required proof of fault. Modern laws recognise the dangers inherent in many economic activities and have increasingly objectivised the notion of fault. In addition, the special risks that attach to certain forms of activity have led to strict liability for harm arising from such activity. Czech law takes a modem approach, and indeed includes a general presumption of fault once it has been shown that damage has resulted from the infringement of a legal duty. The onus is on the tortfeasor to prove that all reasonable care has been taken. Czech law also includes a very general liability for damage caused in the course of business and a num ber of special liabilities. The relationship between the different approaches to liability is not entirely clear. Although other European states are increasing the scope of their laws on strict liability, few national laws are as wide ranging as the Czech law.
Developments at the European level are limited. Greater harmonisation of rules would increase transparency for the consumer. Such legislation and proposals for legislation as exist demonstrate the same trends as are apparent at national level. These trends include: imputation of fault either because of objective ncglect of reasonable care or because of the assumption of an unusual risk; a presumption of unlawfulness where harm to person or property occur; the need for personal capacity to bear responsibility; vicarious liability of employers; recognition of the possibility of contributory negligence.
This convergence of thought is not evident in relation to the law of unjust enrichment, and there are no moves to harmonise the law at the European level. Czech law includes a general principle that enrichment unjustly acquired must be restored. This covers acquisition of both property and other benefits.
In: International Law - Book Archive pre-2000
In: Legal Aspects of International Organizations 20
In: National municipal review, Band 6, S. 286
ISSN: 0190-3799
In: The Administrative Law Journal of The American University, Band 9, Heft 4, S. 1105
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In: 1 Preview of United States Supreme Court Cases 8 (Oct. 2, 2017)
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In: Veröffentlichungen des Instituts für Deutsches, Europäisches und Internationales Medizinrecht, Gesundheitsrecht und Bioethik der Universitäten Heidelberg und Mannheim; Forschungsfreiheit und Forschungskontrolle in der Medizin, S. 357-358
In: Public administration review: PAR, Band 46, Heft 4, S. 374
ISSN: 1540-6210
Advancing a bold theory of the relevance of tort law in the fight against human rights abuses, celebrated US law professor George Fletcher here challenges the community of international lawyers to think again about how they can use the Alien Tort Statute. Beginning with an historical analysis Fletcher shows how tort and criminal law originally evolved to deal with similar problems, how tort came to be seen as primarily concerned with negligence and how the Alien Tort Statute has helped establish the importance of tort law in international cases. In a series of cases starting with Filartiga and culminating most recently in Sosa, Fletcher shows how torture cases led to the reawakening of the Alien Tort Statute, changing US law and giving legal practitioners a tool with which to assist victims of torture and other extreme human rights abuses. This leads to an examination of Agent Orange and the possible commission of war crimes in the course of its utilisation, and the theory of liability for aiding and abetting the US military and other military forces when they commit war crimes. The book concludes by looking at the cutting-edge cases in this area, particularly those involving liability for funding terrorism, and the remedies available, particularly the potential offered by the compensation chamber in the International Criminal Court. ; https://scholarship.law.columbia.edu/books/1072/thumbnail.jpg
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The protective and friendly attitude with which the courts and legislatures have viewed charities is reflected in the rule of nonliability for torts committed by such eleemosynary institutions. The rationales for this exemption may be briefly classified into five main groups. The first and most all inclusive, is the trust fund doctrine based on an early English case and exemplified by the Massachusetts decisions. Under this theory a charitable institution can not be held liable for the negligence of servants and employees or administrative officials.Nor is the court concerned with the status of the plaintiff as beneficiary, employee or stranger. The trust fund can not be diverted from the charitable purposes for which it was intended to compensate for one injured in the execution of these duties.
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Despite decades of effort, the international community has stumbled in attempts to craft tort remedies for victims of transboundary environmental damage. More than a dozen civil liability treaties have been negotiated that create causes of action and prescribe liability rules, but few have entered into force, and most remain unadapted orphans in international environmental law. In this Article, I explain the problematic record of tort liability regimes by developing a theoretical model of liability negotiations grounded in regime theory from political science. Based on this model, I conclude that negotiated liability regimes have foundered because of three main roadblocks: ( 1) interest conflicts between developed and developing states; (2) high transaction costs and low expected payoffs; and (3) incorporation of treaty provisions that are too onerous for states to accept. I conclude that strengthening tort remedies will require changing the substantive content of liability treaties and the process of negotiating them. I also show how liability principles can be strengthened outside the treaty-making process through diffusion of norms against trans boundary environmental damage.
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