Torts

Edited by Ori Herstein (King's College London, Hebrew University of Jerusalem)
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  1. added 2019-02-08
    Nobody’s Perfect: Moral Responsibility in Negligence.Ori Herstein - 2019 - Canadian Journal of Law and Jurisprudence 31 (1):109-125.
    Given the unwittingness of negligence, personal responsibility for negligent conduct is puzzling. After all, how is it that one is responsible for what one did not intend to do or was unaware that one was doing? How, therefore, is one’s agency involved with one’s negligence so as to ground one’s responsibility for it? Negligence is an unwitting failure in agency to meet a standard requiring conduct that falls within one’s competency. Accordingly, negligent conduct involves agency in that negligence is a (...)
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  2. added 2018-11-25
    Deviant Causation and the Law.Sara Bernstein - manuscript
    A gunman intends to shoot and kill Victim. He shoots and misses his target, but the gunshot startles a group of water buffalo, causing them to trample the victim to death. The gunman brings about the intended effect, Victim’s death, but in a “deviant” way rather than the one planned. This paper argues that such causal structures, deviant causal chains, pose serious problems for several key legal concepts. -/- I show that deviant causal chains pose problems for the legal distinction (...)
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  3. added 2018-02-02
    Legal Luck.Ori Herstein - forthcoming - In Rutledge Companion to the Philosophy of Luck. Rutledge.
    Explaining the notion of legal luck and exploring its justification. Focusing on how legal luck relates to moral luck, legal causation and negligence, and to civil and criminal liability.
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  4. added 2017-01-16
    The Ethics of Tort Reform.Gary James Jason - 2008 - Liberty (June):23-28, 62.
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  5. added 2016-12-12
    Punishment, Compensation, and Law: A Theory of Enforceability.Mark R. Reiff - 2005 - Cambridge University Press.
    This book is the first comprehensive study of the meaning and measure of enforceability. While we have long debated what restraints should govern the conduct of our social life, we have paid relatively little attention to the question of what it means to make a restraint enforceable. Focusing on the enforceability of legal rights but also addressing the enforceability of moral rights and social conventions, Mark Reiff explains how we use punishment and compensation to make restraints operative in the world. (...)
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  6. added 2015-10-05
    Risk, Everyday Intuitions, and the Institutional Value of Tort Law.Govind C. Persad - 2009 - Stan. L. Rev 62:1445.
    This Note offers a normative critique of cost-benefit analysis, one informed by deontological moral theory, in the context of the debate over whether tort litigation or a non-tort approach is the appropriate response to mass harm. The first Part argues that the difference between lay and expert intuitions about risk and harm often reflects a difference in normative judgments about the existing facts, rather than a difference in belief about what facts exist, which makes the lay intuitions more defensible. The (...)
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  7. added 2015-07-04
    Standard Threats: How to Violate Basic Human Rights.Anthony R. Reeves - 2015 - Social Theory and Practice 41 (3):403-434.
    The paper addresses the nature of duties grounded in human rights. Rather than being protections against harm, per se, I contend that human rights largely shield against risk impositions to protected interests. “Risk imposition” is a normative idea requiring explication, but understanding dutiful action in its terms enables human rights to provide prospective policy guidance, hold institutions accountable, operate in non-ideal circumstances, embody impartiality among persons, and define the moral status of agencies in international relations. Slightly differently, I indicate a (...)
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  8. added 2014-03-23
    Nozick, Prohibition, and No-Fault Motor Insurance.Toby Handfield - 2003 - Journal of Applied Philosophy 20 (2):201–208.
    Is a Nozickian theory of rights compatible with a no-fault motor insurance scheme? I say, Yes. The argument turns on an explication of the basis on which a Nozickian justifies the prohibition of merely risky activities.
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  9. added 2014-03-20
    Is the Risk–Liability Theory Compatible with Negligence Law?Toby Handfield & Trevor Pisciotta - 2005 - Legal Theory 11 (4):387-404.
    David McCarthy has recently suggested that our compensation and liability practices may be interpreted as reflecting a fundamental norm to hold people liable for imposing risk of harm on others. Independently, closely related ideas have been criticised by Stephen R. Perry and Arthur Ripstein as incompatible with central features of negligence law. We aim to show that these objections are unsuccessful against McCarthy’s Risk–liability theory, and that such an approach is a promising means both for understanding the moral basis of (...)
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  10. added 2010-12-29
    Balancing Acts: Intending Good and Foreseeing Harm -- The Principle of Double Effect in the Law of Negligence.Edward C. Lyons - 2005 - Georgetown Journal of Law and Public Policy 3 (2):453-500.
    In this article, responding to assertions that the principle of double effect has no place in legal analysis, I explore the overlap between double effect and negligence analysis. In both, questions of culpability arise in situations where a person acts with no intent to cause harm but where reasonable foreseeability of unintended harm exists. Under both analyses, the determination of whether such conduct is permissible involves a reasonability test that balances that foreseeable harm against the good intended by the actor's (...)
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  11. added 2010-09-05
    Responsibility in Negligence: Why the Duty of Care is Not a Duty “To Try”.Ori J. Herstein - 2010 - Canadian Journal of Law and Jurisprudence 23 (2):403-428.
    Even though it offers a compelling account of the responsibility-component in the negligence standard—arguably the Holy Grail of negligence theory—Professor John Gardner is mistaken in conceptualizing the duty of care in negligence as a duty to try to avert harm. My goal here is to explain why and to point to an alternative account of the responsibility component in negligence. The flaws in conceiving of the duty of care as a duty to try are: failing to comport with the legal (...)
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  12. added 2010-02-08
    The Role of Causation in Decision of Tort Law.Robert C. Robinson - 2010 - Journal of Law, Development and Politics 1 (2).
    Tort law depends on three key concepts: causation, responsibility, and fault. However, I argue that the three key concepts are neither necessary, nor sufficient, for tort.
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  13. added 2009-12-21
    Book Review of "Torts, Egalitarianism and Distributive Justice" by Tsachi Keren-Paz. [REVIEW]Nicole A. Vincent - 2008 - Australian Journal of Legal Philosophy 33:199-204.
    In "Torts, Egalitarianism and Distributive Justice" , Tsachi Keren-Paz presents impressingly detailed analysis that bolsters the case in favour of incremental tort law reform. However, although this book's greatest strength is the depth of analysis offered, at the same time supporters of radical law reform proposals may interpret the complexity of the solution that is offered as conclusive proof that tort law can only take adequate account of egalitarian aims at an unacceptably high cost.
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  14. added 2009-12-21
    Responsibility, Compensation and Accident Law Reform.Nicole A. Vincent - 2007 - Dissertation, University of Adelaide
    This thesis considers two allegations which conservatives often level at no-fault systems — namely, that responsibility is abnegated under no-fault systems, and that no-fault systems under- and over-compensate. I argue that although each of these allegations can be satisfactorily met – the responsibility allegation rests on the mistaken assumption that to properly take responsibility for our actions we must accept liability for those losses for which we are causally responsible; and the compensation allegation rests on the mistaken assumption that tort (...)
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  15. added 2009-12-21
    Compensation for Mere Exposure to Risk.Nicole A. Vincent - 2005 - Australian Journal of Legal Philosophy 29:89-101.
    It could be argued that tort law is failing, and arguably an example of this failure is the recent public liability and insurance (‘PL&I’) crisis. A number of solutions have been proposed, but ultimately the chosen solution should address whatever we take to be the cause of this failure. On one account, the PL&I crisis is a result of an unwarranted expansion of the scope of tort law. Proponents of this position sometimes argue that the duty of care owed by (...)
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  16. added 2009-12-21
    What is at Stake in Taking Responsibility? Lessons From Third-Party Property Insurance.Nicole A. Vincent - 2001 - [Journal (Paginated)] (in Press) 20 (1):75-94.
    Third-party property insurance (TPPI) protects insured drivers who accidentally damage an expensive car from the threat of financial ruin. Perhaps more importantly though, TPPI also protects the victims whose losses might otherwise go uncompensated. Ought responsible drivers therefore take out TPPI? This paper begins by enumerating some reasons for why a rational person might believe that they have a moral obligation to take out TPPI. It will be argued that if what is at stake in taking responsibility is the ability (...)
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