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The most common form of vicarious liability subjects an employer (or principal) to liability for the torts an employee (agent) commits within the scope of employment. Under the motive test, an employee's tortious misconduct is outside the scope of employment when wholly motivated by personal reasons--a rule that almost invariably prevents the victims of sexual assaults from recovering against the employer, regardless of whether the employment relationship created the conditions that enabled the employee's wrongdoing. A few alternative approaches have reformulated vicarious liability to overcome the limitations of the motive test, which is based on agency law, but each one has largely foundered. The motive test rules the land. Neither courts nor commentators have adequately considered whether vicarious liability can be reformulated in terms of basic tort doctrine independently of agency law. As a matter of established tort principles, the scope of vicarious liability is limited to the injuries caused by a tortious risk--one which the employment relationship foreseeably created. The tort formulation recognizes that the employment relationship creates a foreseeable risk that employees will be careless or overzealous and can commit torts while motivated to serve the employer, even if the employer did not authorize the tortious misconduct. When an employee's unauthorized tortious behavior is motivated solely by personal reasons, it would still be foreseeable and within the employer's scope of vicarious liability if the employment relationship elevated the foreseeable risk of such misconduct over the background level of risk that exists outside of the workplace. Sexual assaults can accordingly be foreseeable within certain types of employment settings, subjecting the employer to vicarious liability as a matter of basic tort doctrine. The problem of sexual assaults in the workplace shows why the tort formulation of vicarious liability relies on a more realistic account of employee behavior as compared to its agency counterpart, which cannot persuasively explain why vicarious liability applies to any form of employee behavior the employer did not authorize. Vicarious liability is best formulated as a doctrine of tort law, not as a component of agency law with its question-begging treatment of motive in the workplace. [ABSTRACT FROM AUTHOR]

The author presents a response to David Blankfein-Tabachnick and Kevin Kordana's criticism of his argument that economic torts in unjust economic systems do not justify John Rawls's difference principle, as well as his contention that the principle requires maximizing the position of the less advantaged to the more advantaged, not their absolute position. He discusses the application of Rawls's difference principle in determining personal tort liability and remedies, including economic torts.

This article addresses the EU private international law framework for cross-border disputes concerning credit ratings. It argues that investors harmed by faulty ratings face considerable challenges when enforcing claims against credit rating agencies. These challenges arise not only due to the high standard of proof for damages claims and additional barriers rooted in substantive law but also from the limited territorial reach of the common EU civil liability regime of Article 35a of the amended Regulation (EC) No 1060/2009. Additionally, uncertainties concerning the determination of the concurrently applicable national law and the lack of unified European cross-border collective redress mechanisms in the area of capital markets law compound the problem. Against this background, this article discusses the options for reforming the existing private international law regime to enhance investors' access to justice in disputes with CRAs. [ABSTRACT FROM AUTHOR]

Tortious actions brought against companies for the violation of human rights and/or environmental damage have raised important issues of jurisdiction and choice of law. Damage caused abroad by subsidiaries of European companies or the possibility of bringing actions against non-European companies for damage caused outside of the European union have been referred to in terms of extraterritoriality. This paper examines these issues in relation to the proposed directive on corporate sustainability due diligence. [ABSTRACT FROM AUTHOR]

This paper provides detailed, article by article commentary on the Principles of European Tort Law (PETL) from the perspective of one of the authors. It highlights areas where, in his opinion, improvements should be made as part of the ongoing process of revision. [ABSTRACT FROM AUTHOR]

By concluding a contract, parties intend to allocate the contractual risk between them. This means that parties must anticipate any future adverse result and determine whether a party will have to cover any loss incurred by the other party as a result of performance or, more often, bad performance. In sales contracts, for example, parties may decide to exclude any liability for defects of goods, especially when selling used goods or for other reasons, or at least to limit liability for some defects or to limit types of possible claims. Similarly, in mergers and acquisitions, parties very strictly determine what is known by the seller in a disclosure letter and give the buyer access to some information in a data room prior to the conclusion of the contract to limit liability to the unknown and the non-disclosed. CA Hill/BJM Quinn/SD Sollomon, Mergers and Acquisitions, Law, Theory, and Practice (2019) 372–403; R Tschäni/H-J Diem/M Wolf (eds), M&A-Transaktionen nach Schweizer Recht (3rd edn 2021) 209–215 (paras 420–431); O Duys/K Henrich in: W Hölters (ed), Handbuch Unternehmenskauf (8th edn 2015) ch 16, paras 16.108–16.116. For each party, much of contractual drafting boils down to limiting risk to the greatest extent possible, or at least to ensure compensation for any risk incurred. If parties are on an equal footing, this may lead to an equitable allocation of risk and a balanced contractual liability regime. Contractual limitations of liability are, therefore, part of this process of adequate allocation of risks. In this contribution, I will briefly address three issues. First, I will look at which principles are applicable to the validity of limitations of contractual liability (I) and then determine to what extent these principles apply to tort claims (II). This will finally lead me to determine whether the Principles of European Tort Law (PETL) need to be supplemented by a further rule dealing with the validity of contractual clauses limiting liability in tort (III). [ABSTRACT FROM AUTHOR]

The authors of the Principles of European Tort Law (PETL) did not intend to regulate in detail the strict liability of a manufacturer for damage caused by a defect in its product. While creating general principles of liability for damage caused otherwise than by breach of an obligation, they had no need to refer to those problems for which uniform and detailed solutions already existed in the European Communities. Product liability was such a problem (the only one in the area of tort law, by the way). Given the existence of the 1985 Product Liability Directive, there was no need to look for an answer to the issue of the victim's claim against the producer in the PETL's provisions on strict liability (art 5:101 PETL) or on fault-based undertaking liability (art 4:202 PETL). However, the need for this has emerged in recent years. As technology and business models have developed, new possibilities of harm to users of products (in the broad sense of the latter term) and third parties have emerged, which seem to call for the liability of the manufacturer or commercial intermediaries. This liability, however, cannot be based on 1985 Product Liability Directive (PLD) provisions. The question therefore arises whether the Principles adopted in 2005 would be a sufficient foundation upon which such a liability rule could be built. The article discusses some of these new damage scenarios and explains why neither the narrow approach to strict liability in PETL nor its fault-based enterprise liability rule yields satisfactory results in relation to them. It then outlines the current proposal for a new European product liability law, aiming to fill these liability gaps. [ABSTRACT FROM AUTHOR]

AI has developed from a basic set of "if, then rules" to more sophisticated algorithms that function similar to the human brain. Applications of AI in medicine have grown since the introduction of ML and DL, opening the door to individualised treatment rather than medicine just based on algorithms. The application of AI in medicine is in both diagnostics and surgery. This paper helps analyse the role of Artificial Intelligence in healthcare especially diagnostics and surgery. It also explores the role of AI in medical negligence. Part 1 talks about the application of ML and DL in healthcare, Part 2 analyses the test for medical negligence and Part 3 analyses the coexistence of AI and medical negligence. Part 4 examines the inclusion of innovation in AI in the tort of medical negligence. Lastly, Part 5 examines the ways in which liability can be assigned and provides for a theoretical framework. The paper concludes by providing a suggestion that the standard of care principles in the common law tort of negligence must offer a fault-based system which is sufficiently adaptable to allow for the application of developments in AI in healthcare and addresses the problems that arise as the technology advances. [ABSTRACT FROM AUTHOR]

As we enter into a period of unprecedented climate instability, litigation is becoming an attractive way to hold private entities accountable for their contribution to global warming. In Smith v Fonterra, New Zealand's Supreme Court is considering whether a common law duty to limit emissions should form part of New Zealand's environmental protection framework. This follows the development of several civil liability mechanisms for environmental damage in overseas jurisdictions. This article examines the implementation of civil liability for climate damage in France and the Netherlands, illustrating the difficulties of effectively dealing with climate change, and its destabilising effect on the law. France implements civil liability mostly on the basis of traditional tort rules, which function to severely restrict its scope. Conversely, the Dutch judiciary introduced a due diligence obligation that requires corporate strategies to be sufficiently in line with international obligations regarding emissions. The latter approach carries more promise, demonstrating that for private entities to be held civilly liable for their contribution to climate change, there must be significant departure from traditional legal doctrine, perhaps in the direction of climate due diligence. [ABSTRACT FROM AUTHOR]

Scientific research is supposed to acquire or generate knowledge, but such a purpose would be severely undermined by instances of research misconduct (RM) and questionable research practices (QRP). RM and QRP are often framed in terms of moral transgressions by individuals (bad apples) whose aberrant acts could be made conducive by shortcomings in regulatory measures of organizations or institutions (bad barrels). This notion presupposes, to an extent, that the erring parties know exactly what they are doing is wrong and morally culpable, but had nonetheless proceeded to commit wrongful acts. However, a confession of intent to deceived is often not readily admitted by perpetrators of RM. I posit that beyond the simplistic notion of conscious moral transgression, deficits in epistemic virtues and/or the prevalence of epistemic vices have important roles to play in initiating and driving RM/QRP. For the individual perpetrator, deficits in epistemic virtues could lead to or amplify errors in one's desperate attempt to be accomplished or to excel, and pushes one across the ethical line or down the slippery slope of misconduct. Likewise, a lack of epistemic virtue within perpetrators' institution or organization could make it conducive for deceitful acts and suppress indications and warning signs for the former. Furthermore, epistemic vices exhibited by reviewers, editors and journals could also promote RM/QRP. In this view, epistemic failings, rather than widespread moral deficiencies of individuals within the research ecosystem, may underlie the prevalence of RM/QRP. [ABSTRACT FROM AUTHOR]

The public nuisance tort is now in a critical stage of development, mostly in the United States but also in other jurisdictions, including civil law systems. It is becoming ever more consequential in practice and, at the same time, widely misunderstood by courts and scholars. Our ambition is to defend a private law theory of public nuisance. Contrary to the view that the underlying rights protected by this tort contrast with private rights (say, to bodily integrity), we argue that these public rights are private rights like any other right in the law of torts since they protect private persons taken severally. And, yet, these private rights are also distinctively public in the sense that they protect the interests of private persons to use and enjoy the public sphere. In that, public nuisance imposes not merely ex post liability for undermining these interests but also, first and foremost, constructs a liberal public sphere. Our case for public nuisance shows that private law extends beyond the private sphere to capture entitlements and responsibilities that do not arise from, or attach to, ownership of land; it also resists the reduction of private law to rights of action and ex post determination of liabilities. More concretely, our reconstruction of public nuisance solves two key doctrinal challenges that the tort struggles with – concerning the standing to sue in public nuisance and the economic loss rule – and it also refines the potentially significant role of this tort in addressing the urgent threat posed by climate change. [ABSTRACT FROM AUTHOR]

Although the Declaration of Independence stated that "[a]ll men are created equal," due to the institution of slavery, this statement was not to be grounded in law in the U.S until after the Civil War. Often, American blacks looked to the courts to protect important social values and when the courts ruled in favor, there was always a backlash and resistance to judicial fiat. This paper makes a historical analysis of the South's response to judicial social change. For instance, when Brown v. Board of Education of Tepeka was decided in 1954, school boards in portions of the country actively resisted the court mandated school integration. Thus, the paper argues that social change should be a gradual process and not a forced enterprise by the courts or indeed, any governmental structure since an assertive judiciary can spark a political and cultural backlash that may hurt, more than help, progressive values. [ABSTRACT FROM AUTHOR]

Tort liability is designed to economically incentivize safer behavior by compelling the tortfeasor to pay money to a person injured by the tortfeasor's conduct. In medical malpractice cases, this safer conduct should, in turn, improve patient safety and reduce adverse events. Most medical errors are the result of faulty systems and processes that are outside the control of individual clinicians working within those systems. Yet, the historical approach of holding hospitals only vicariously liable focuses solely on the individual clinicians' actions and does not hold hospitals accountable for their failure to fix the defective system and processes. Hospitals have a nondelegable duty to develop, adopt, and enforce adequate and appropriate processes, procedures, rules, and policies to ensure the delivery of quality care to their patients. Would holding hospitals directly liable for system failures motivate them financially and reputationally to improve their systems, thereby having the greatest effect on reducing patient harm? [ABSTRACT FROM AUTHOR]

Article 36(2) of the International Law Commission's Article on Responsibility of States for Internationally Wrongful Acts (ARSIWA) provides that the responsible state shall compensate for all financially assessable damage. However, ARSIWA provides no guidance as to how such a broad rule should be applied in practice, which creates significant ambiguities for adjudicators in charge of adjudicating compensation claims in international law. In the past decade, the International Court of Justice has adjudicated three important compensation cases wherein it has exhibited a visible turn to equitable considerations in compensation determination. This article conducts an analysis of such an emerging equitable approach to compensation and argues that it is a welcome development, given the flexibility it provides to the Court for balancing different factors, with the aim of achieving an equitable determination of compensation. This article also addresses the justifications and predictability concerns of this approach. [ABSTRACT FROM AUTHOR]

This study aims to identify artificial intelligence (AI) technologies that are applied in climate-smart agricultural practices and address ethical concerns of deploying those technologies from legal perspectives. As climate-smart agricultural AI, the study considers those AI-based technologies that are used for precision agriculture, monitoring peat lands, deforestation tracking, and improved forest management. The study utilized a systematic literature review approach to identify and analyze AI technologies employed in climate-smart agriculture and associated ethical and legal concerns. The study findings indicate several ethical concerns for deploying AI in climate-smart agricultural practices pertaining to data inaccuracy, other technical errors based on wrong recommendations or wrongful acts, data ownership and intellectual property issues, and economic issues resulting in digital division and privacy and security related issues. In this study, the ethical concerns were further examined based on criminal law, tort law, privacy and data protection law, and intellectual property law. In this regard, the study finds that the current tort law pattern is more suitable than the criminal law pattern to address some major ethical concerns, such as data inaccuracy and other technical errors based on wrong recommendations or wrongful acts. Finally, the study recommends that at the global level, all countries need to fill up the current gap of international law on climate-smart agriculture through agreeing on a standard set of legal provisions and enhancing collaboration in innovation and deployment of climate-smart agricultural AI. It further recommends that at the local level, countries need to adopt suitable regulations addressing multi-stakeholders' interests associated with the deployment of climate-smart agricultural AIs. [ABSTRACT FROM AUTHOR]

This essay challenges solitary confinement in immigration prisons and examines how solitary confinement is an extrajudicial segregation designed by courts and congressional plenary power. Topics discussed include evolution of immigration prisons that led to solitary confinement, state claims against private officials, Section 1983 claims for violations of Fifth, Eighth and 14th amendment rights, federal tort claims, habeas and international law claims, and harm-reduction legislative options.

Students entering law school today will have an educational experience strikingly similar to that of those who entered in the late 1800s. What will be their required courses? Torts, contracts, civil procedure, property, and criminal law. What will they read? Appellate opinions. How will their professors teach? By deploying the Socratic method. How will they be tested? With a hypo exam. This Article argues that the belief that these practices are the legitimate means by which to teach students "how to think like a lawyer" is based on a fundamental misunderstanding of their origins. The casebook, the 1L curriculum, the Socratic method, and the hypo exam are all entailments of Christopher Langdell's nineteenth-century strategy to elevate the status of law schools by reimagining them as institutions where students would learn to think not like lawyers, but like scientists. Aiming to cash in on the acclaim of Charles Darwin's theory of natural selection, Langdell modeled the study of law after Darwin's study of organisms. Like Darwin, law students would study with an evolutionary eye. The judicial opinion would be their specimen; the classroom, their workshop; and the library, their laboratory. Although initially lambasted by the legal community, the model spread because it was preferred by corporate law firms. White-shoe partners commonly observed that students trained under Langdell's methods did not possess much useful knowledge about the law. However, they believed that the social Darwinism embedded in his model could be exploited to the firms' financial benefit. High failure rates, stressful classroom environments, and a do-ityourself method of study mirrored the "up-or-out" Darwinian culture at corporate law firms. Receipt of a Langdellian education indicated that a young lawyer would be able to endure the grueling life of a junior associate. Partners' preference for students trained under the model transformed Harvard Law from a middling institution to a financial powerhouse whose educational practices would be mimicked by law schools nationwide. Today, law schools aim to be welcoming and inclusive, yet they default to an educational model that was designed to intimidate and exclude. By clinging to centuries-old educational precedent, law schools miseducate future lawyers and maintain stubborn cultures of alienation and anxiety within their halls. This Article identifies key shortcomings of the dominant model of legal education and recommends actions that will allow new models to flourish. [ABSTRACT FROM AUTHOR]

Shortly after the Bivens remedy was born, the Federal Tort Claims Act nearly killed it. In Carlson v. Green, the United States argued that an implied constitutional remedy was no longer necessary because Congress had amended the FTCA to cover intentional torts. The Supreme Court disagreed, and Bivens survived. Today, Bivens is alive but showing its age. The Supreme Court has repudiated its rationale and refused to extend it to any new rights or fact patterns. Scholars fear that there is no longer a remedy for many of the constitutional violations of federal officers. But perhaps these concerns are overstated: As the United States argued in Carlson, the FTCA has the potential to serve as a constitutional remedy. This Note assesses just how great that potential is. First, it discusses the doctrinal viability of using the FTCA as a constitutional remedy. As it turns out, a growing circuit split over the FTCA's discretionary function exception now threatens the FTCA's ability to serve as a constitutional remedy just when it is most needed. After considering that threat, this Note evaluates the FTCA's effectiveness as a constitutional remedy. It considers the kinds of constitutional violations that the FTCA can redress and the defenses available to the United States. Finally, this Note examines the theoretical implications of relying on state tort law to vindicate federal constitutional rights. [ABSTRACT FROM AUTHOR]

Under modern tort law, the "strict" product liability cause of action does not impose true strict liability (liability without fault). This Article suggests that this counterintuitive development is not the byproduct of a policy choice. Instead, an unresolved doctrinal difficulty is responsible for the modern requirement that a plaintiff prove fault before winning on a "strict" product liability claim. The doctrinal difficulty is this: How can tort law impose liability on faultless product manufacturers while simultaneously preventing plaintiffs with fault from being able to recover under a true strict liability standard? This Article posits that both results are desirable--true strict product liability, but not for plaintiffs with fault--but that it is analytically difficult to assemble tort doctrine to get both results. Without a doctrinal solution that allows for both results, courts have (mostly) retreated from a true strict product liability standard. This Article offers a simple solution to this analytical/doctrinal riddle: Restoring the strict product liability cause of action such that it truly imposes liability without fault, while allowing defendants a contributory negligence (flat-bar) defense to this strict liability claim. Under this doctrinal change, plaintiffs without fault would be able to recover from manufacturers on a true strict product liability claim. Plaintiffs with fault, however, would be forced to pursue a negligence claim, meaning that their ability to recover would require them to show that the defendant also had fault. This doctrinal fix uses tools and concepts already familiar to modern tort law and is thus easily achievable. In fact, all that is necessary to effectuate this result is a simple, minor change to the current comparative fault jury instructions used in most jurisdictions. [ABSTRACT FROM AUTHOR]

The Defamation and Malicious Publication (Scotland) Act 2021 is, in its way, a major achievement. A codifying statute for a complex area of the law was produced in a relatively short time-frame, and the SLC's objective of modernising and simplifying the law was certainly realised. Yet the Act also demonstrates some of the difficulties of legislating for the law of delict, especially in the Scottish context. [ABSTRACT FROM AUTHOR]

This article explores the development of Scots lawyers' approaches to justifying delictual liability. It suggests that these reflect the taxonomical relationship between delict and the rest of the law. Four models are posited and discussed: the residual model (delict is the category for wrongful conduct without another taxonomical home); the crime/delict model (criminal law determines what is wrongful and delict handles its private law consequences); the conduct-harm model (wrongfulness is rooted in conduct which foreseeably or intentionally causes harm) and the rights-based model (wrongfulness is grounded on the breach of a right justified elsewhere in private law). [ABSTRACT FROM AUTHOR]

In 2020 and 2021, 44 states and Washington, D.C. passed laws that limited tort liability related to COVID-19. The most common reforms immunized health care providers from malpractice or similar liability. A second category is limited liability to individuals or businesses for exposing others to the novel coronavirus. And a third category protected manufacturers of supplies used to detect and prevent COVID-19 from products liability suits. The goals of these reforms included protecting health care providers from uncertainty in providing care for a novel disease, limiting the macroeconomic consequences of the pandemic, and encouraging the distribution of critical supplies to avoid shortages. States providing immunity assumed that institutions and individuals alike would react to reforms, as theory predicts, by engaging in more of the immunized activities. In general, the literature supports the assumption that institutions, like hospitals or manufacturers of face masks and COVID-19 tests, change their behavior in response to tort reform. Yet there is little empirical evidence demonstrating how tort law affects risk-taking by individuals. The lack of evidence about the relationship between tort law and individual decision-making is of broad interest, as one of the primary goals of tort law is to incentivize efficient levels of risk-taking. This Article provides novel empirical evidence on the effects of COVID-19 tort reform on public health. The analysis yields three important results. First, it shows that medical liability reforms had counterproductive public health effects. States that immunized health care providers from tort suits arising out of COVID-19 care experienced 20% more COVID-19 cases and 5% more COVID-19 hospitalizations. Second, the results demonstrate that exposure reforms counterintuitively decreased COVID-19 cases by making it easier for businesses and other institutions to require customers to comply with public health guidance. Third, the results reveal that tort law had very little effect, if any, on the precautions individuals chose to avoid contracting or spreading the disease. The third result is broadly interesting, as it indicates that tort law will be a weak incentive to individuals whenever they are choosing a level of care that can protect themselves or others. [ABSTRACT FROM AUTHOR]

The article discusses the application of the legal doctrine in tort law, respondeat superior, as the at-home and remote work options become popular in the U.S. Topics discussed include employers' liability for wrongful acts committed by their employees occurring within the scope of their employment, the link between respondeat superior and workers' compensation in relation to defining the scope of employment, and the view that courts should uphold strict liability in respondeat superior cases.

When the European Court of Human Rights found Italy responsible for push-backs on the high seas in Hirsi Jamaa based on Italy's effective control over the individuals, it simultaneously solidified the concept of jurisdiction as a prerequisite of human rights obligations and provided States with deeper knowledge on how to avoid responsibility. Since then, instead of pushing the migrants back themselves, destination States increasingly delegate the task of migration control to third States. Under the guise of "capacity building", they fund, train, and equip third States to exercise containment measures and carry out pull-backs. By way of bilateral agreements, destination States remain in control of the migration flow while avoiding any direct contact with the migrants that would trigger their human rights obligations. One example for this is the Italian-Libyan cooperation under the 2017 Memorandum of Understanding, which was renewed in 2020. Migrants intercepted by Libya are systematically detained in prisons under horrific conditions, which is in clear violation of their human rights. The present article explores ways to allocate responsibility on destination States for their involvement in those human rights violations notwithstanding the lack of jurisdiction. In particular, the article deals with the question whether the general international law of State responsibility is applicable alongside international human rights law. Responsibility for complicity, as lined out in Art. 16 of the Articles on State Responsibility for Internationally Wrongful Acts, is compared to the concept of due diligence obligations in international human rights law, dismissing the claim that the latter poses lex specialis. Subsequently, Art. 16 ASR's substantive requirements are applied to the case study in order to test the provision's capability to overcome the accountability gap. [ABSTRACT FROM AUTHOR]

The Journal of European Tort Law published two special issues based on papers presented at a conference held at the University of Geneva in September 2022. The conference aimed to create a dialogue between specialists from outside the European Group on Tort Law (EGTL) and its members. The papers demonstrate that the idea of drafting European Principles of Tort Law is widely supported, although improvements can be made. The EGTL is currently revising its Principles and the papers provide valuable input for this process. The issue of strict liability, particularly in road traffic cases, is a key focus, and new provisions on strict liability are being drafted. The EGTL will also examine other areas that have developed rapidly in recent years. [Extracted from the article]

This article analyses the practical issues arising in private damages claims proceedings when the competition authority's decision on which the civil claim is based has been appealed and is thus not final. [ABSTRACT FROM AUTHOR]

"Climate Litigation in a Changing World" by J. Spier explores the phenomenon of climate litigation and its potential to address the adverse effects of climate change. The book examines the legal bases of climate obligations, including the Paris Agreement, human rights law, and tort law. It also presents twelve hypothetical climate cases to illustrate the application of climate litigation in practice. While acknowledging the limitations and uncertainties of climate litigation, the book highlights its role as a constructive alternative to regulatory solutions in the fight against climate change. [Extracted from the article]

In recent decades, tort law, and the theory on which it is based, have been the subject of intense debate. These debates focus on the underlying rationale of tort law and reflect tensions between instrumental and non-instrumental perspectives. Instrumental perspectives cover a wide variety of approaches in which tort law is seen as a tool to realise social aims. It can be recognised in the theories of legal economists, such as Posner, who emphasise deterrence, but also in the theories of those who consider it to be an instrument to realise compensation or to contribute to distributive justice. The non-instrumental perspective reflects the concerns of those who consider tort law to be based on individual autonomy and liberty. Some advocates of this perspective adopt a straightforward anti-instrumental position. Weinrib and Beever for instance, object to tort law being used as an instrument to realise collective aims. An instrumental approach would make individuals – either the injurers or the victims – the servants of collective aims, whereas tort law should instead protect individual freedom in the face of community needs.These non-instrumental theories and their individualistic interpretation of liability are unrealistic in a society where people are embedded in wide networks of interdependency, in which risks are often anticipated and deliberately accepted as socially desirable, and in which insurance and its accompanying rationale of actuarial justice play a prominent role.Nevertheless, the issue I seek to address in this paper is whether the principle of corrective justice might not embody some important values that can be used to counter some problematic aspects of an instrumental approach. Based on an awareness that the concept of corrective justice as a whole is no longer realistic in today's society and building on Habermas' theory of communicative action, I will sketch the contours of an alternative underpinning for tort law that better reflects current social realities, while at the same time taking some normative reservations held by advocates of corrective justice against instrumentalism into account. [ABSTRACT FROM AUTHOR]

Climate change has created existential challenges for current models of natural hazard insurance, and it may be difficult going forward for these models to consistently, fairly and coherently manage the compensation challenges associated with climate change impacts in Europe. This paper analyses the application of a comprehensive no-fault compensation fund framework to the problem of presently uninsured and technically uninsurable losses that are currently inadequately covered by other compensation mechanisms, and for which compensation may be difficult to recover using tort law mechanisms. The proposed structure includes consideration of the purpose and form of the fund, eligibility and categories of loss covered, quantum of compensation, and funding sources. There is also a preliminary consideration of the impact of such a fund on questions of liability. The proposed model illustrates potential ways for a compensation fund to support and complement existing compensation structures such as insurance and civil liability, and provide the necessary stabilisation in European society. Further legal research in this area will require qualitative and quantitative empirical data on how existing compensation frameworks (including innovative insurance instruments like parametric insurance) have so far positively and negatively impacted the ability of victims of climate change to prepare for and recover from loss incidents, in comparison with tort law and existing insurance. [ABSTRACT FROM AUTHOR]

This Article rests on four premises: (i) that modern market participants frequently seek legal tools to compromise selected liabilities and not all the liabilities of the firm; (ii) that it is difficult to achieve a selective corporate restructuring in Chapter 11 given its inclusivity; (iii) that selective corporate restructuring strategies are normatively desirable but must only be permitted within strict boundaries; and (iv) that U.S. practitioners have worked around the challenges which Chapter 11’s inclusivity poses to selective strategies but sufficient boundaries have not been placed around these workarounds. While restructuring of long-term financial liabilities is the prime example of a selective restructuring strategy, the Article demonstrates that it is far from being the only one. Thus, the Article represents the first attempt to join currently siloed debates about financial restructuring, landlord restructuring, and restructuring of tort liabilities into a single debate about selective strategies and the need for formal selective restructuring tools alongside traditionally inclusive bankruptcy tools. Having reframed the understanding of modern restructuring practice in the United States by reference to selectivity, we argue that, in line with developments in other countries, notably the United Kingdom, it is high time that the Bankruptcy Code is reformed to accommodate selective restructuring while providing safeguards against its abuse. In other words, it is time to tackle Chapter 11’s inclusivity problem head on. [ABSTRACT FROM AUTHOR]

The article examines the need for the state government of Indiana to enact a criminal provision prohibiting the encouragement of suicide with specific statutory language and definitions. It analyzes the case, Commonwealth v. Carter, particularly the resolution of Carter's argument on appeal. It discusses ways that may help address the issue, such as criminal infliction of emotional distress and the use of tort law instead of criminal law.

The article assesses civil liability relating to transnational human rights and environmental violations under sustainability due diligence legislation. Topics discussed include deficiencies in civil liability regimes like the United Nations Guiding Principles on Business and Human Rights and the Alien Tort Statute, civil liability routes used in jurisdictions in business-related human rights violations, the French Duty of Vigilance Law, and the Corporate Sustainability Due Diligence Directive.

Despite some retrenchment, the litigation state remains alive and well. All this litigation has engendered intense debates over whether increased lawsuits represent a rising tide of justice or a flood of frivolous claims. Tort law has been at the center of these debates for decades, standing at the fault line between "tort tale," "total justice," and "mixed" narratives about the perils and benefits of litigation. In this article, we use a survey experiment to probe attitudes toward claims for workplace injuries in light of these narratives. We find that our participants held multifaceted views. On one hand, they favored making claims over doing nothing or asking family members for help and saw lawsuits as equally appropriate as filing a government claim or hiring a lawyer to send a demand letter. On the other hand, tort tale themes cast a subtle shadow over our participants' views. When told claimants did not rush to the courts in defiance of tort tale expectations, our participants saw the lawsuit as more justified. Indeed, the more remedies exhausted prior to litigation, the more justifiable the lawsuit seemed, even though repeated denials of claims might undermine faith in their merits. The bottom line, we contend, is that attitudes toward litigation reflect not only the choice of remedy but also how remedies are used, even when the underlying claim is meritorious—a point that could be useful to practitioners and advocates as they weigh claiming options as well as litigation and public communication strategies. [ABSTRACT FROM AUTHOR]

What explains the variation in the interpretation and enforcement of international law by domestic judges? Can independent judiciaries control the enforcement of countries' commitments to international law? In this paper, we leverage a unique source of data—cases related to the Alien Tort Statute—to investigate how independent judges might be able to enforce international commitments to human rights without concern for whether the state (here the United States) has opted into the commitments in the first place. We show that behavioral factors in judicial decision making, and particularly those related to judicial ideological preferences, are potent predictors of judicial enforcement of international law. This implies that states with highly independent judiciaries are right to be worried about their abilities to control enforcement domestically, although we also find evidence that the U.S. government get a special degree of deference in these cases. [ABSTRACT FROM AUTHOR]

This article identifies and evaluates key international legal aspects concerning three notions that have figured in debates on war crimes involving an autonomous weapon system (AWS): responsibility, liability and accountability. It focuses on the general contours of the existing international law of armed conflict, also known as international humanitarian law (IHL), and related fields, concepts and institutions. Regarding responsibility, this article examines, on one hand, the international responsibility of a state for an internationally wrongful act related to a breach of a rule of IHL involving an AWS that may form the basis of a war crime and, on the other hand, individual criminal responsibility for a war crime involving an AWS. As for liability, this article outlines three international legal concepts of state liability potentially related to a war crime involving an AWS. Finally, this article sets out an, at least, legally adjacent concept of accountability that involves an explanation of the conduct related to a war crime involving an AWS and imposing political, legal, social or other consequences where such an explanation is absent or insufficient. [ABSTRACT FROM AUTHOR]

Some philosophers think that if someone acts wrongly while falsely believing that her act is permissible, this moral mistake cannot excuse her wrongdoing. And some think that this is because it is morally blameworthy to fail to appreciate the moral significance of non‐moral facts of which one is aware, such that mistakenly believing that one's act is permissible when it is in fact wrong is itself morally blameworthy. Here I challenge the view that it is blameworthy to fail to appreciate the moral significance of non‐moral facts of which one is aware. This view seems okay if we focus on examples of people mistakenly believing that their wrongful acts are permissible. But it is not remotely plausible when we consider other varieties of moral mistake – such as believing that one's action is required when it is in fact supererogatory, believing that one's action is wrong when it is in fact permissible, and believing false things about the moral properties of others' actions and of merely possible actions. The upshot is that those who maintain that moral mistakes cannot excuse are sent back to the drawing board; we need a new explanation of why this would be the case. [ABSTRACT FROM AUTHOR]

"The Cambridge Legal History of Australia" is a visually appealing and extensive book that explores the legal history of Australia. It focuses on the encounter between the Australian government and Indigenous peoples, recognizing the ancient and contemporary nature of Aboriginal cultures. The book challenges the notion of Australia as a bastion of the Common Law and emphasizes the fragmented and politically influenced nature of Australian law. It covers various aspects of Australian legal history, including criminal law, labor law, civil wrongs, and indigenous legal traditions. This book is a significant contribution to Australian historiography and global legal history. [Extracted from the article]

This article explores the complex issue of allocating responsibility for bodily injury claims in mass tort cases among insurance policies. It emphasizes the need to consider various factors such as policy terms, trigger theories, lost policies, successor liability, and allocation methods when evaluating these claims. The article provides examples of long-tail mass torts, including asbestos, talc, opioids, and other products. It concludes by discussing the importance of identifying the relevant policies and properly allocating the risk among them. The article also discusses different methods of allocating liability and costs in insurance coverage disputes related to mass torts, including trigger theories and allocation methodologies. It highlights the trend in the law towards finding equitable solutions that involve the participation of insurers and insureds in resolving mass tort litigations. It emphasizes the importance for practitioners to stay updated on these coverage issues. [Extracted from the article]

Autonomous vehicles are now driving people around in cities from San Francisco to Phoenix. But how to regulate the safety risks from these autonomous driving systems (ADS) remains uncertain. While state tort law has traditionally played a fundamental role in controlling car crash risks, this Note argues that the development of novel data tracking and simulation tools by the ADS industry has led to a regulatory paradigm shift: By leveraging these tools for regulatory analysis, the federal National Highway Traffic Safety Administration (NHTSA) could iteratively adapt and improve its regulatory standards after each crash. While many scholars have advanced proposals for how state products liability can adapt to ADS crashes, this Note is the first to propose such a model of “crash-adaptive regulation” for NHTSA and to show that this model will prove superior to tort liability in controlling ADS crash risks. In presenting this new regulatory model, this Note engages with two rich theoretical debates. First, it compares the efficacy of tort liability and agency regulation in controlling ADS crash risks. Second, it evaluates whether ADS safety standards should be set at the federal level or at the state level. It concludes that ADS’ technical characteristics call for an agency regulatory scheme at the federal level and urges NHTSA to build the technological and operational expertise necessary to operate a crash-adaptive regulatory regime. [ABSTRACT FROM AUTHOR]

Our common law rejected Roman law's treatment of contractual and tortious obligations as property, but radicalized property rights by making their object abstract entities such as estates and trusts. By dealing in such entities' existence or non-existence, and in the validity/fallacy of arguments about them, Property minimizes practical reasoning (about ends, means, the rightful, permitted, wrongful ...), for a practical reason—to advance valuable ends such as stability and security and their fruits: prosperity (in principle for all), and independence in face of public power and oligarchical (or indeed democratic) groupthink. Part II illustrates this in a simple Trusts case. Tort, however, is private law-rules/principles for enforcing originally moral obligations to compensate for violating essentially moral but formally conventional and derivatively/technically legal obligations (of respect and care). Part III illustrates Tort's private-law/moral character in dialectic with Goldberg and Zipursky. Part IV sketches Tort's relevance to compensating for aspects and consequences of regulators' failures to exercise morally/conventionally due care in executing public-law duties/powers to regulate makers, distributors or mandators of inherently dangerous medical means. [ABSTRACT FROM AUTHOR]

According to John Goldberg and Ben Zipursky ("Goldursky"), there are two central pillars to tort law, pillars that are best explicated by civil recourse theory. Torts are legally recognized wrongs, and the power to seek redress is part of the Lockean bargain. Using the recent question of whether nondisclosure agreements (NDAs) should be permitted, this Article unearths an instability in the kind of normativity upon which Goldursky relies. Specifically, this paper explores how the unenforceability or bans on NDAs premised upon third party harms may presuppose the victim has a duty to rescue these third parties. I begin by revealing the underlying moral relationship at the heart of these potential duties. From there, I explore how these sorts of arguments cannot easily be voiced within the presuppositions of civil recourse theory. Finally, I consider the pressure points within civil recourse theory that could potentially take on board these moral considerations. My bottom line is simple: Whichever way one thinks about NDAs and the duty to rescue, a dilemma is created for Goldursky. There is simply a mismatch between the kind of arguments that one can make about why it would be (in)appropriate to limit the plaintiff's cause of action and what the underlying content of tort law should be. Ultimately, the kind of normativity that they need to understand the Lockean bargain, as well as the content of and caveats thereto, may require more bite than positive morality. [ABSTRACT FROM AUTHOR]

Corrective justice and civil recourse theorists aim to provide coherent and unified theories of tort law—and private law more generally. In doing so, they have identified relationality as a key unifying concept. For corrective justice theorists, relational rights and wrongs are based on the internal moral structure of private law—namely a notion of rights that protect a person's capacity to exercise purposive agency. For civil recourse theorists, on the other hand, relational rights and wrongs are grounded in the positive law. This essay assesses whether relationality does, in fact, provide a strong foundation for grounding a theory of tort law. It argues that, while relationality certainly describes aspects of the remedial relationship between right and wrong, it does not generally provide sufficient guidance for understanding what kinds of "relational wrongs" should be redressable by tort in the first instance. [ABSTRACT FROM AUTHOR]

In 1890, when Brandeis and Warren wrote The Right to Privacy, Japan did not have a word for privacy. Today, it is closely guarded in Japan: the European Data Protection Board has found privacy protections in Japan “equivalent” to those in the EU. This research explores the evolution of privacy law in Japan, focusing on data breach and the legal rights and obligations associated with it. The writing is broken up into two parts: This article discusses private enforcement of privacy norms, as it is the courts that first established and continue to define privacy rights in Japan. A separate article will address the public law regulation of privacy, including discussion of Japan’s Act on the Protection of Personal Information and its regulatory enforcement. Examining the civil litigation that has defined privacy norms in Japan, one finds three distinct periods: early judicial decisions that create privacy rights by weaving together pre-existing legal doctrines in new ways; a period of expansion where courts recognize a legal injury for disclosure of even basic personal information; and a recent Supreme Court decision that expressly recognizes a remedy for the mental distress that arises from a data breach, even without proof of financial harm. In comparison to the public law cases, one also finds a public law-private law divide. While some Japanese courts in data breach litigation suggest individuals possess a “right to control” their own personal information; in cases involving the central government, one finds no more than a right to the “reasonable handling” of that information. A cross-jurisdiction comparison suggests Japan seeks middle ground. Japanese courts define privacy rights more broadly than in the U.S., but not to the extent found in jurisdictions governed by the GDPR. In doing so, Japanese courts use tort law to balance interests: to compensate plaintiffs; to incentivize defendants’ compliance with industry standards and government regulations; and to reward defendants who implement post-incident remedial measures. The result is a set of legal norms that clearly recognize privacy rights, but also limit damages. These legal norms, in turn, have produced stable market norms that now allow parties to settle most data breach claims. Privacy is no longer a foreign concept in Japan. [ABSTRACT FROM AUTHOR]

Contracts are falling in scale. New contracting trends and technologies facilitate the formation of smaller scale contracts that have ephemeral duration, token stakes, and narrow scope. These nano contracts embody ephemeral interactions of minuscule value -- interactions that were previously far outside the law and away from explicit markets, governed only by social norms. The rise of nano contracts can unlock new transaction types, create opportunities to build wealth, and reduce dependence on private ownership. Yet nano contracts also carry important risks, and their small scale makes them difficult to effectively regulate. At the limit, nano contracts collapse private law boundaries between property, torts, and contract, and would require a rethinking of the basic private law categories. This Article offers the first comprehensive study of these Lilliputian agreements, examining their potential while attending to questions of enforceability, market creep, and disparate impact. The analysis reveals the essential, if neglected, role of scale in private law, and how it can and should inform jurisprudence and policy. [ABSTRACT FROM AUTHOR]

Since the inception of the tort of libel, claims against the media have created a tension between the First Amendment's commitment to a free press and the desire to prevent reputational harm to individuals. Further complicating the issue are cases in which plaintiffs allege that literally true statements are defamatory based on implications created through juxtapositions or omissions of facts. This is known as libel by implication, a tort currently governed by states through a patchwork of varying standards and interpretations. Not only does the lack of uniformity leave journalists without due notice of the law in the jurisdictions they are reporting on, but also it encourages forum shopping by plaintiffs and attacks against the media. A solution is critical: libel by implication claims have become increasingly popular with politicians seeking to dispel criticism -- precisely the speech the First Amendment was intended to protect. To best protect crucial reporting in an era of animus towards the press, this Note argues that states need to adopt a uniform standard for governing libel by implication that requires a showing that (1) the implications of the article are false and (2) the journalist acted with actual malice in publishing them. "I imagine it's no surprise by now that many courts and commentators have complained that defamation law is a 'quagmire,' lacks 'clarity and certainty,' is 'overly confusing' and 'convoluted,' leaves courts 'hopelessly and irretrievably confused,' and 'has spawned a morass of case law in which consistency and harmony have long ago disappeared.'" [ABSTRACT FROM AUTHOR]