Search

This article addresses prospectus liability in the United States. The key statutes and Securities and Exchange Commission (SEC) rules and regulations are examined in conjunction with analysis of the causes of action and defenses that are applicable. While the US prospectus framework is thorough, substantial gaps exist that should be remedied. The article accordingly focuses on principal aspects of US prospectus liability exposure and proffers recommendations for improving the overall framework. [ABSTRACT FROM AUTHOR]

In this paper, I will examine the extent to which the common law of tort in England and Wales imposes a duty to prevent harm on public authorities and private individuals. As will be seen, the starting point for the common law is that such liability should, in both cases, be regarded as exceptional. This must, however, be weighed against duties to prevent harm that arise under the torts of negligence and breach of statutory duty. Public authorities may also face claims that their failure to prevent harm is in breach of ECHR arts 2 or 3. While the law is complex, this paper identifies three key arguments that explain the current legal position at common law, namely that: (i) tort law should treat private and public parties alike: (ii) human rights claims should be treated as distinct from private law claims and (iii) libertarian concerns signify that a duty to prevent harm should be exceptional and needs to be justified. While these arguments provide both an explanation of and a justification for the current law, this article questions to what extent the treatment of public authority liability may be regarded as unduly harsh on vulnerable claimants. [ABSTRACT FROM AUTHOR]

Turning the spotlight on the historical evolution of public authority liability in Europe shows us a movement from immunity to liability of increasing extent but, at the same time, opposite tendencies can be observed as well. Public authority liability evolves in waves, not always going in the same direction and, more than once, recurring to old solutions. These motions are partway prompted by policy considerations, interrelated with the special position of the state. This paper aims to set the right tone for answering the main question of the Ius Commune Workshop, entitled 'Public Authorities and Tort Law: a Difficult Marriage?'. Using a comparative perspective, this paper sets out to illustrate how policy orientation has an impact on public authority liability in Europe without giving a constant and lasting direction towards either expanding or limiting this liability. [ABSTRACT FROM AUTHOR]

Extracontractual liability law is no exception to the general trend of instrumentalisation of private law. It is increasingly being used to pursue goals other than its primary aim of compensation. This instrumentalisation is a dual phenomenon that has developed both out of top-down and bottom-up impulses. Although specific questions may arise for each of these two movements, they encounter a common limit. On a fundamental level, the instrumentalisation is restricted by extracontractual liability law's primary compensatory function. Other functions, such as enforcement (of rights) or prevention, are grafted onto this primary function and can only be pursued to the extent that they are compatible with it. It relates to the tension created by pursuing public goals through extracontractual liability law as an essentially private law instrument. Attention is needed not to overstretch extracontractual liability law's prerequisites, which are coherent with its private law embedding. It would turn extracontractual liability law into a dangerous passe-partout. Besides stretching the existing prerequisites, one may also consider alternative instruments for pursuing non-compensatory goals, such as preventive actions. Given the ubiquitous occurrence of the phenomenon, the present contribution will start from Belgian and Dutch law, although the conclusions may reach beyond these legal systems. [ABSTRACT FROM AUTHOR]

Mass harm events pose liability challenges for public authorities that may be difficult to resolve via tort. A State can use statutory and non-statutory compensation funds to manage and avert its liability to pay damages to individual citizen victims. Compensation funds eliminate or minimise the traditional concept of fault and often replace it with a no-fault structure, ideally enabling swift payment of compensation to individual victims via an administrative scheme. The Irish government has repeatedly used this kind of solution for groups including victims of contaminated blood products, individuals who suffered abuse as children in State-sanctioned institutions, victims of unnecessary obstetric procedures and other public health failings. This approach has been necessary because multi-party actions are generally unavailable in Ireland, and because of entrenched access to justice problems. The evidence of their use reveals a haphazard pattern and inconsistent treatment of victims. Irish funds have aimed to compensate both the pecuniary and non-pecuniary losses of victims, often in a mixed way. The Irish approach is unsatisfactory because of the trend towards low and homogenised levels of compensation, poor procedure and the lack of other realistic redress alternatives. Overall, these compensation funds have been predominantly advantageous for the State from a cost and liability minimisation perspective. The situation could be improved if future compensation funds were properly designed and supervised, supported by appropriate legislation, and cognisant of the surrounding legal landscape and compensation fund jurisprudence from other European jurisdictions. [ABSTRACT FROM AUTHOR]

This contribution deals with the wrongful behaviour of public authorities, in this case in particular the Belgian State, and delves into a challenge that the multi-levelled legal order poses for the national tort system. It inquires how the violation of an international treaty relates to liability in the national legal system. More specifically, the author examines if it is necessary, when dealing with state liability, to limit the concept of fault to the infringements of international treaties with direct effect, excluding the violation of those without such effect. [ABSTRACT FROM AUTHOR]

Do tort claims, or the fear of them, result in the adoption of practices aimed at protecting against tortious liability? Legislators, courts, and legal scholars often seem to think so, but is there empirical evidence to support this assumption? This article provides an answer to this question for the field of medical practice. An analysis of empirical studies on defensive medicine raises doubts as to whether the assumption holds true. The findings indicate that the empirical evidence is weak and that, if there is a concern about defensive practices, it seems to exist primarily in physicians' minds. The results contribute to a better understanding of how tort law works, what effects it has on behaviour, and whether legal actors, especially at the intersection of law and medicine, should give credence to the defensive practices concern. [ABSTRACT FROM AUTHOR]

This article deals with the question whether and to what extent the human rights principle of equality and the right to a fair trial permit limitations of liability in certain specific fields. Based on the jurisprudence of mainly the Belgian Constitutional Court and the European Court of Human Rights, this article argues that two principles should be taken into account if one creates special liability regimes. The first principle is that the human rights principle of equality and the right to a fair trial will probably be violated if every possibility to receive damages is excluded for specific fields of liability. The second principle is that liability regimes that only offer partial compensation or require a more stringent burden of proof might conflict with the principle of equality where there is no legitimate reason for treating similar situations differently or where the legitimate aim of differentiating is not proportionate to the impact of the differentiation. Concerning this last criterion the presence of a grave or intentional fault seems to legitimate stricter liability rules. [ABSTRACT FROM AUTHOR]

The article reviews the book "Public Liability in EU Law: Brasserie, Bergaderm and Beyond," by Pekka Aalto.

Private liability law has been thoroughly studied in economic terms. By contrast, public liability law has not been given enough recognition from this angle, even though the economic perspective seems relevant here too. This paper accordingly investigates to what extent economic analyses of public liability law are able to draw on those of private liability law, with a particular focus on German law. [ABSTRACT FROM AUTHOR]

The table of contents for the November 2012 issue of the "Journal of European Tort Law" is presented.