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Ken Oliphant - One of the best experts on this subject based on the ideXlab platform.
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Cultures of Tort Law in Europe
Journal of European Tort Law, 2020Co-Authors: Ken OliphantAbstract:This article provides a short introduction to the present special issue of the Journal of European Tort Law, which critically investigates the cultures of Tort Law in four selected national or regional contexts in Europe: England, France, Germany and Scandinavia. It explains what is meant by the idea of a culture of Tort Law, summarises the articles that follow, and ends with some concluding reflections from a comparative perspective.
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Tort Law risk and technological innovation in england
McGill Law Journal, 2014Co-Authors: Ken OliphantAbstract:This paper considers the impact of technological innovation—and the risks arising from it—on the development of English Tort Law in the modern era, dating from around 1750. At a time when the old forms of action were losing their grip, unprecedented social changes resulted from the Industrial Revolution and the risks that it created. New mechanisms (insurance, regulation and social welfare) were introduced to control these risks and mitigate their effects. Tort Law too was obliged to adapt, and its modern contours bear the mark of this history. However, fundamental questions about the proper function of Tort Law relative to alternative compensatory and regulatory mechanisms remain to be satisfactorily resolved.
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Tort Law in the Jurisprudence of the European Court of Human Rights - Tort Law in the jurisprudence of the European Court of Human Rights
2011Co-Authors: Ken Oliphant, Katarzyna LudwichowskaAbstract:The goal of this study is to provide a general overview and thorough analysis of how the European Court of Human Rights (ECtHR) deals with Tort Law issues such as damage, causation, wrongfulness, fault and compensation - namely when applying Art. 41 of the European Convention on Human Rights (ECHR). Methodological approaches to the Tort Law of the ECHR as well as the perspectives of human rights and Tort Law and public international Law are also addressed.
Marta Infantino - One of the best experts on this subject based on the ideXlab platform.
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European Tort Law in Chinese Eyes
European Journal of Comparative Law and Governance, 2017Co-Authors: Marta InfantinoAbstract:The book herein reviewed – ‘The Aims of Tort Law. Chinese and European Perspectives’, edited by Helmut Koziol and published by Jan Sramek Verlag in 2017 – offers something that is much needed: a comparative study of Tort Law functions that, additionally, focuses on China. On the basis of that study, the paper sketches out some comparative lessons Europeans can learn by looking at Chinese Tort Law, and in particular at the Chinese approaches to the aims of Tort Law.
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Diffusing Tort Law Softly: Insights into the Travels of Italian Tort Law
Journal of European Tort Law, 2015Co-Authors: Marta InfantinoAbstract:The paper examines how, where, and why Italian Tort Law rules have circulated within Europe since the enactment of unified Italy’s first Civil Code in 1865. By tracing the fragmented historical and geographical patterns of diffusion of Italian Tort Law in the last 150 years, the paper offers itself as a case-study for thinking about legal transplants within and across European cultures
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Tort Law and Legal Cultures
American Journal of Comparative Law, 2015Co-Authors: Mauro Bussani, Marta InfantinoAbstract:According to the common understanding, Tort Law is the branch of private Law whose set of positive rules, institutions, and procedures aims to shift the costs of accidents from the victim to a different subject. Similar accounts of Tort Law are widespread and uncontested, yet they fail to do justice to the overall role Tort Law plays in societies. Tort Law does not live in legislatures, Law firms, courts, and Law books only. It also lives “in the shadow” of the official system of adjudication: in the offices of insurance companies; in people's notions about injury and risk, responsibility and justice; in the languages and images associated with Law in mass-generated popular culture; as well as in public debates about what values should be protected and promoted, at what costs, and at the expense of whom. On the assumption that Tort Law is at the same time a product and a constituent of the very cultural framework in which it is embedded, the aim of this paper is to explore its cultural dimensions in a broad comparative perspective. Combining insights from legal anthropology, socio-legal literature, legal history, and comparative Law, the article tries to understand the role that, in Western and non-Western legal traditions, Tort Law plays in responding to, and managing social conflicts. In this perspective, the paper studies the cultural frameworks that sustain the adjudication process outside and inside the courtrooms, and analyzes how notions, practices, and remedies of Tort Law “in action” vary across different social and cultural settings. It then puts forward some conclusions about the extent to which Tort Law notions, ideas, concepts, categorizations, and perceptions influence and, reciprocally, are influenced by the cultural framework of which they are an expression.
Bernhard A Koch - One of the best experts on this subject based on the ideXlab platform.
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the principles of european Tort Law
ERA Forum, 2007Co-Authors: Bernhard A KochAbstract:The author presents the major aspects of the Principles of European Tort Law (PETL). These have been drafted by the European Group on Tort Law in order to provide a basis for discussing a future harmonisation of Tort Law in Europe, which must be achieved not only by some codification on the EU level, but also by way of gradual convergence of the Laws at their own initiative. The Principles of European Tort Law are not a mere restatement of the Law as is, not least due to the fact that there are significant differences between the European jurisdictions when it comes to attributing a loss. Indeed, many concepts that are commonly accepted at present are being preserved, since there is no obvious need to abandon the experience accumulated throughout Europe so far. Nevertheless, the Principles try to merge these traditional approaches with a modern perspective on how the Law of Torts should develop in the future.
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The “Principles of European Tort Law” *
ERA Forum, 2007Co-Authors: Bernhard A KochAbstract:The author presents the major aspects of the Principles of European Tort Law (PETL). These have been drafted by the European Group on Tort Law in order to provide a basis for discussing a future harmonisation of Tort Law in Europe, which must be achieved not only by some codification on the EU level, but also by way of gradual convergence of the Laws at their own initiative. The Principles of European Tort Law are not a mere restatement of the Law as is, not least due to the fact that there are significant differences between the European jurisdictions when it comes to attributing a loss. Indeed, many concepts that are commonly accepted at present are being preserved, since there is no obvious need to abandon the experience accumulated throughout Europe so far. Nevertheless, the Principles try to merge these traditional approaches with a modern perspective on how the Law of Torts should develop in the future.
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unification of Tort Law strict liability
2002Co-Authors: Bernhard A Koch, Helmut Koziol, Francesco Donato BusnelliAbstract:Strict Liability: Questionnaire and Cases M.R. Will. Part I: General Questions. A. Legal Basis. B. General characteristics. C. Rules differing from general Tort Law. D. Cumulation of strict liability and fault liability? E. Interrelation with other compensation systems. F. Visions. G. Possible directions. Part II: Cases. A. Scope (protective purpose) of strict liability norms. B. Notion of `custodian/keeper'. C. Excuses. D. Channelling strict liability upon operator/license holder. Austria B.A. Koch, H. Koziol. Part I: General Questions. A. Legal basis. B. General characteristics. C. Rules differing from general Tort Law. D. Cumulation of strict liability and fault liability? E. Interrelation with other compensation systems. F. Visions. G. Possible directions. Part II: Cases. A. Scope (protective purpose) of strict liability norms. B. Notion of `custodian/keeper'. C. Excuses. D. Channelling strict liability upon operator/license holder. Belgium H. Cousy, D. Droshout. Part I: General Questions. A. Legal Basis. B. General characteristics. C. Rules differing from general Tort Law. D. Cumulation of strict liability and fault liability? E. Interrelation with other compensation systems. Part II: Cases. A. Scope (protective purpose) of strict liability norms. B. Notion of `custodian/keeper'. C. Excuses. D. Channelling strict liability upon operator/license holder. Czech Republic L. Tichy. Part I: General Questions. A. Legal Basis. B. General characteristics. C. Rules differing from general Tort Law. D. Cumulation of strict liability and fault liability? E. Interrelation with other compensation systems. F. Visions. G. Possible directions. Part II: Cases. A. Scope (protective purpose) of strict liability norms. B. Notion of `custodian/keeper'. C. Excuses. D. Channelling strict liability upon operator/license holder. England W.V.H. Rogers. Part I: General Questions. A. Legal Basis. B. General characteristics. C. Rules differing from general Tort Law. D. Cumulation of strict liability and fault liability? E. Interrelation with other compensation systems. F. Visions. Part II: Cases. A. Scope (protective purpose) of strict liability norms. B. Notion of `custodian/keeper'. C. Excuses. D. Channelling strict liability upon operator/license holder. France S. Galand-Carval. Part I: General Questions. A. Legal Basis. B. General characteristics. C. Rules differing from general Tort Law. D. Cumulation of strict liability and fault liability? E. Interrelation with other compensation systems. F. Visions. G. Possible directions. Part II: Cases. A. Scope (protective purpose) of strict liability norms. B. Notion of `custodian/keeper'. C. Excuses. D. Channelling strict liability upon operator/license holder. Germany J. Fedtke, U. Magnus. Part I: General Questions. A. Legal Basis. B. General characteristics. C. Rules differing from general Tort Law. D. Cumulation of strict liability and fault liability? E. Interrelation with other compensation systems. F. Visions. G. Possible directions. Part II: Cases. A. Scope (protective purpose) of strict liability norms. B. Notion of `custodian/keeper'. C. Excuses. D. Channelling strict liability upon operator/license holder. Greece K.D. Kerameus. Part I: General Questions. A. Legal Basis. B. General characteristics. C. Rules differing from general Tort Law. Part II: Cases. A. Scope (protective purpose) of strict liability norms. B. Notion of `custodian/keeper'. C. Excuses. D. Channelling strict liability upon operator/license holder. Israel I. Gilead. Part I: General Questions. A. Legal Basis. B. General characteristics. C. Rules differing from general Tort Law. D. Cumulation of strict liability and fault liability? E. Interrelation with other compensation systems. F-G. Visions and directions. Part II: Cases. A. Scope (protective purpose) of strict liability norms. B. Notion of `custodian/keeper'. C. Excuses. D. Channelling strict liability upon operator/license holder. Italy G. Comande. Part I: General Questions. A. Legal Basis. B. General characteristics. C. Rules differing from general Tort Law. D. Cumulation of strict liability and fault liability? E. Interrelation with other compensation systems. F. Visions. G. Possible directions. Part II: Cases. A. Scope (protective purpose) of strict liability norms. B. Notion of `custodian/keeper'. C. Excuses. D. Channelling strict liability upon operator/license holder. Netherlands E. du Perron, W.H. van Boom. Part I: General Questions. A. Legal Basis. B. General characteristics. C. Rules differing from general Tort Law. D. Cumulation of strict liability and fault liability? E. Interrelation with other compensation systems. F. Visions. G. Possible directions. Part II: Cases. A. Scope (protective purpose) of strict liability norms. B. Notion of `custodian/keeper'. C. Excuses. D. Channelling strict liability upon operator/license holder. Poland M. Nesterowicz, E. Baginska. Part I: General Questions. A. Legal Basis. B. General characteristics. C. Rules differing from general Tort Law. D. Cumulation of strict liability and fault liability? E. Interrelation with other compensation systems. F. Visions. G. Possible directions. Part II: Cases. A. Scope (protective purpose) of strict liability norms. B. Notion of `custodian/keeper'. C. Excuses. D. Channelling strict liability upon operator/license holder. South Africa J. Neethling. Part I: General Questions. A. Legal Basis. B. General characteristics. C. Rules differing from general Tort Law. D. Cumulation of strict liability and fault liability? E. Interrelation with other compensation systems. F. Visions. G. Possible directions. Part II: Cases. A. Scope (protective purpose) of strict liability norms. B. Notion of `custodian/keeper'. C. Excuses. D. Channelling strict liability upon operator/license holder. Spain M. Martin-Casals, et al. Part I: General Questions. A. Legal Basis. B. General characteristics. C. Rules differing from general Tort Law. D. Cumulation of strict liability and fault liability? E. Interrelation with other compensation systems. F. Visions. Part II: Cases. A. Scope (protective purpose) of strict liability norms. B. Notion of `custodian/keeper'. C. Excuses. D. Channelling strict liability upon operator/license holder. Switzerland P. Widmer. Part I: General Questions. A. Legal Basis. B. General characteristics. C. Rules differing from general Tort Law. D. Cumulation of strict liability and fault liability? E. Interrelation with other compensation systems. F. Visions. G. Possible directions. Part II: Cases. A. Scope (protective purpose) of strict liability norms. B. Notion of `custodian/keeper'. C. Excuses. D. Channelling strict liability upon operator/license holder. United States G.T. Schwartz. Part I: General Questions. A. Legal Basis. B. General characteristics. C. Rules differing from general Tort Law. D. Cumulation of strict liability and fault liability? E. Interrelation with other compensation systems. F. Visions. G. Possible directions. Part II: Cases. A. Scope (protective purpose) of strict liability norms. B. Notion of `custodian/keeper'. C. Excuses. D. Channelling strict liability upon operator/license holder. Economic Analysis M. Faure. Comparative Conclusions B.A. Koch, H. Koziol.
Benjamin C Zipursky - One of the best experts on this subject based on the ideXlab platform.
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Tort Law and responsibility
2013Co-Authors: John C P Goldberg, Benjamin C ZipurskyAbstract:It borders on banality to observe that Tort Law enables injury victims to hold Tortfeasors responsible for having wrongfully injured them. Yet modern Torts scholarship has largely obscured the centrality of responsibility to Tort Law. This is true not only of avowedly instrumental and prescriptive theories, but also of many corrective justice theories.In this chapter, we aim to provide an account of the centrality of responsibility to Tort Law, thereby restoring its proper place in Tort theory. We first review the impressive effort of Stephen Perry to harness Tony Honore’s notion of “outcome-responsibility” to supply a satisfactory understanding of Tort Law, and negligence Law in particular. We then demonstrate how notions of responsibility of the sort invoked by Perry help explain some of the most important developments in modern Tort doctrine, including the emergence of strict products liability, comparative fault, and robust-yet-limited affirmative duties. Finally, we argue that our own interpretive account — the civil recourse theory of Tort — is superior to Perry’s in that it places notions of responsibility at the center of Tort Law while also making better sense of prevailing doctrine.
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Tort Law and moral luck
Cornell Law Review, 2007Co-Authors: John C P Goldberg, Benjamin C ZipurskyAbstract:Tort liability often turns to a substantial degree on an actor's good or bad luck. For example, a driver may be lucky to be more skilled than average, or unlucky to be less. Alternatively, she may be lucky to avoid hitting a pedestrian, or unlucky to hit him, or very unlucky to hit a person with an 'eggshell skull.' Whether a person's conduct falls below the relevant standard of conduct, whether it causes injury, and how much liability results - these matters determine whether someone is a Tortfeasor and, if so, how much she will have to pay in damages. And yet each of these factors lies outside of her control. Because Tort liability is sensitive to luck in these ways, scholars such as Christopher Schroeder and Jeremy Waldron have condemned Tort Law as morally arbitrary. Others, such as Justice Holmes and Judge Posner, have seized on Tort Law's luck-sensitivity to argue that Tort - which seems on its face to be a Law of wrongs - really has nothing to do with wrongs. Assessments of conduct as right and wrong, they suppose, cannot possibly attribute so much significance to dumb luck. In this Article we are argue that the role of luck in Torts does not undermine the case for understanding Tort as a Law of wrongs, nor does it make the case for dismissing Tort Law as morally arbitrary. Drawing upon the canonical articles on "moral luck" by Bernard Williams and Thomas Nagel, we argue that is false to suppose that an actor cannot be held responsible for having committed a wrong unless all the relevant features of the situation in which she acted were in principle subject to her control. The Article proceeds by distinguishing and explaining two aspects of Tort Law's luck-sensitivity: (1) luck regarding whether one's Tortious conduct causes damage, and, if so, how much ("causal luck"); and (2) luck regarding whether one's efforts to comply with Tort Law's objective standards are successful ("compliance luck"). Causal luck, we argue, does not introduce objectionable arbitrariness into Tort Law. On the contrary, it is a natural and necessary feature of a body of Law that is concerned to permit those who have been wronged to redress the wrongs done to them. As to the problem of compliance luck, we explain why it is sensible for courts and legislatures to fashion Tort norms of conduct with external measures of compliance, and why such norms can properly count as norms that define "wrongs." We conclude by suggesting that careful attention to the particular senses in which Torts are wrongs not only entails the rejection of familiar critiques of Tort, but also sheds light on values that Tort Law can serve within in our legal system, as well as the content and operation of legal and extra-legal notions of wrongdoing and responsibility.
Gerhard Wagner - One of the best experts on this subject based on the ideXlab platform.
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Tort Law and liability insurance
Chapters, 2009Co-Authors: Gerhard WagnerAbstract:This volume provides a state-of-the-art overview of the literature on the economic analysis of Tort Law. In sixteen chapters, the specialist authors guide the reader through the often vast literature in each domain providing a balanced and comprehensive summary. Particular attention is paid to the evolution of the field, further refinements to economic models and relevant conclusions and lessons for the policymaker.
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Tort Law and Liability Insurance - Tort Law and Liability Insurance
Geneva Papers on Risk and Insurance-issues and Practice, 2006Co-Authors: Gerhard WagnerAbstract:The interaction between Tort Law and liability insurance is a complex problem that is difficult to deal with. This article provides a broad overview by distinguishing two approaches or models of the Tort/insurance interface. One is the Deterrence Model in which Tort Law takes the leading role, whereas insurance is an auxiliary, and at times problematic, device. The alternative approach is the Compensation Model in which Tort and insurance switch roles in order to provide optimal compensation to those in need. From there on, it is only a small step to no-fault schemes currently considered in some European countries as a substitute for traditional medical malpractice Law. The Geneva Papers (2006) 31, 277–292. doi:10.1057/palgrave.gpp.2510074
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Tort Law and liability insurance
Geneva Papers on Risk and Insurance-issues and Practice, 2005Co-Authors: Gerhard WagnerAbstract:The interaction between Tort Law and liability insurance is a complex problem that is difficult to deal with. This article provides a broad overview by distinguishing two approaches or models of the Tort/insurance interface. One is the Deterrence Model in which Tort Law takes the leading role, whereas insurance is an auxiliary, and at times problematic, device. The alternative approach is the Compensation Model in which Tort and insurance switch roles in order to provide optimal compensation to those in need. From there on, it is only a small step to no-fault schemes currently considered in some European countries as a substitute for traditional medical malpractice Law. The Geneva Papers (2006) 31, 277–292. doi:10.1057/palgrave.gpp.2510074
