Professor Fletcher challenges the traditional account of the development of tort doctrine as a shift from an unmoral standard of strict liability for directly causing harm to a moral standard based on fault. He then sets out two paradigms of liability to serve as constructs for understanding competing ideological viewpoints about the proper role of tort sanctions. He asserts that the paradigm of reciprocity, which looks only to the degree of risk imposed by the parties to a lawsuit (...) on each other, and to the existence of possible excusing conditions, provides greater protection of individual interests than the paradigm of reasonableness, which assigns liability instrumentally on the basis of a utilitarian calculus. Finally, Professor Fletcher examines stylistic differences between the two paradigms which may explain the modern preference for the paradigm of reasonableness. (shrink)

This essay provides an overview of the crime/tort distinction. It first investigates some of the fundamental differences between criminal law and tort law in doctrine and legal structure. It then explores some important similarities and differences in normative perspectives between the two doctrinal fields. This typology should prove analytically useful for examining some of the specific issues at the borderline of crime and torts—such as the proper scope of punitive damage liability and the question whether criminal law as (...) well as tort law should vary legal sanctions simply because of the fortuitous occurrence of harm. (shrink)

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.

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 second Part considers how tort has dealt with this divergence between lay and expert perspectives. It also evaluates how tort's approach has differed from that of public law approaches to accident law, such as legislative compensation and risk regulation by administrative agencies. Ultimately, tort's ability to recognize the value of lay intuitions supports retaining the tort perspective as part of our societal arsenal of responses to risk and harm. This ability can also support a pro-tort perspective in two practical debates in the arena of tort law: that over preemption of tort law by administrative agency judgments, and that over access to tort recovery as part of a no-fault system. (shrink)

One of the challenges in secondary schools today is infringements on students’ rights, in a tortious way that may also constitute breach of the Child’s Right Act of 2003 in Nigeria. These breach on rights usually come through the administration of corporal punishments on students, and mainly because the school heads see themselves as loco parentis of the students who can, therefore, enforce any form of punishment on them in the school. This study investigated knowledge, attitude, and infringement of (...) class='Hi'>tort law among public secondary school heads on students in Osun State. All the students in Osun State public secondary schools and 723 heads constituted the population. A sample of 54 school heads and 180 students were selected using multi-stage sampling procedure. Two instruments were designed to elicit responses from the respondents. Descriptive and inferential statistics were used to answer the research questions raised for the study. The results showed that school heads do not have adequate knowledge of tort law and that both the school heads and students have poor attitude toward it tort law. The study recommends that short term training on student’s right, how they can be legally protected and tort law be organised for school heads. (shrink)

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.

In ‘What Has Philosophy to Learn from Tort Law?’, Bernard Williams reaffirms J. L. Austin’s suggestion that philosophy might learn from tort law ‘the difference between practical reality and philosophical frivolity’. Yet while Austin regarded tort law as just another repository of time-tested concepts, on a par with common sense as represented by a dictionary, Williams argues that ‘the use of certain ideas in the law does more to show that those ideas have strength than is done (...) by the mere fact that they are part of the currency of common sense’. But what does it mean to show that ideas or concepts ‘have strength’? How does conceptual strength relate to the distinction between practical reality and philosophical frivolity? And what special features of the law are supposed to make it a better test of conceptual strength than common sense? In this chapter, I reconstruct and develop Williams’s answers to these questions. I show why Williams believes that we need to test the concepts forming the currency of common sense against practical reality as embodied by legal practice; I identify seven features of tort law that make it particularly suitable to act as such a test; I distinguish three respects in which concepts can show strength, and unpack Williams’s metaphor of microwave-resistant concepts: concepts capable of holding and presenting material for intense critical scrutiny without succumbing to it themselves; lastly, I show how philosophy can learn to identify systematically weak concepts, and the limits of otherwise valuable concepts, by considering which concepts fail the test. (shrink)

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 defendants to plaintiffs has expanded beyond reasonable levels, such that parties who were not really responsible for another’s misfortune are successfully sued, while those who really were to blame get away without taking any responsibility. However people should take responsibility for their actions, and the only likely consequence of allowing them to shirk it is that they and others will be less likely to exercise due care in the future, since the deterrents of liability and of no compensation for accidentally self-imposed losses will not be there. Others also argue that this expansion is not warranted because it is inappropriately fueled by ‘deep pocket’ considerations rather than by considerations of fault. They argue that the presence of liability insurance sways the judiciary to award damages against defendants since they know that insurers, and not the defendant personally, will pay for it in the end anyway. But although it may seem that no real person has to bear these burdens when they are imposed onto insurers, in reality all of society bears them collectively when insurers are forced to hike their premiums to cover these increasing damages payments. In any case, it seems unfair to force insurers to cover these costs simply because they can afford to do so. If such an expansion is indeed the cause of the PL&I crisis, then a contraction of the scope of tort liability, and a pious return to the fault principle, might remedy the situation. However it could also be argued that inadequate deterrence is the cause of this crisis. On this account the problem would lie not with the tort system’s continued unwarranted expansion, but in the fact that defendants really have been too careless. If prospective injurers were appropriately deterred from engaging in unnecessarily risky activities, then fewer accidents would ever occur in the first place, and this would reduce the need for litigation at its very source. If we take this to be the cause of tort law’s failure then our solution should aim to improve deterrence. Glen Robinson has argued that improved deterrence could be achieved if plaintiffs were allowed to sue defendants for wrongful exposure to ongoing risks of future harm, even in the absence of currently materialized losses. He argues that at least in toxic injury type cases the tortious creation of risk [should be seen as] an appropriate basis of liability, with damages being assessed according to the value of the risk, as an alternative to forcing risk victims to abide the outcome of the event and seek damages only if and when harm materializes. In a sense, Robinson wishes to treat newly-acquired wrongful risks as de-facto wrongful losses, and these are what would be compensated in liability for risk creation (‘LFRC’) cases. Robinson argues that if the extent of damages were fixed to the extent of risk exposure, all detected unreasonable risk creators would be forced to bear the costs of their activities, rather than only those who could be found responsible for another’s injuries ‘on the balance of probabilities’. The incidence of accidents should decrease as a result of improved deterrence, reduce the ‘suing fest’, and so resolve the PL&I crisis. So whilst the first solution involves contracting the scope of tort liability, Robinson’s solution involves an expansion of its scope. However Robinson acknowledges that LFRC seems prima facie incompatible with current tort principles which in the least require the presence of plaintiff losses, defendant fault, and causation to be established before making defendants liable for plaintiffs’ compensation. Since losses would be absent in LFRC cases by definition, the first evidentiary requirement would always be frustrated, and in its absence proof of defendant fault and causation would also seem scant. If such an expansion of tort liability were not supported by current tort principles then it would be no better than proposals to switch accident law across to no-fault, since both solutions would require comprehensive legal reform. However Robinson argues that the above three evidentiary requirements could be met in LFRC cases to the same extent that they are met in other currently accepted cases, and hence that his solution would therefore be preferable to no-fault solutions as it would only require incremental but not comprehensive legal reform. Although I believe that actual losses should be present before allowing plaintiffs to seek compensation, I will not present a positive argument for this conclusion. My aim in this paper is not to debate the relative merits of Robinson’s solution as compared to no-fault solutions, nor to determine which account of the cause of the PL&I crisis is closer to the truth, but rather to find out whether Robinson’s solution would indeed require less radical legal reform than, for example, proposed no-fault solutions. I will argue that Robinson fails to show that current tort principles would support his proposed solution, and hence that his solution is at best on an even footing with no-fault solutions since both would require comprehensive legal reform. (shrink)

I explicate the conditions required for criminal responsibility, provide an overview of criminal defenses, distinguish criminal responsibility from both tort liability and moral responsibility, and explicate the current state of the insanity defense.

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 (...) class='Hi'>tort law’s compensatory decisions provide a legitimate norm against which no-fault’s decisions can be compared and criticized – doing so leads in a direction which is at odds with accident law reform advocates’ typical recommendations. On my account, accident law should not just be reformed in line with no-fault’s principles, but rather it should be completely abandoned since the principles that protect no- fault systems from the conservatives’ two allegations are incompatible with retaining the category of accident law, they entail that no-fault systems are a form of social welfare and not accident law systems, and that under these systems serious deprivation – and to a lesser extent causal responsibility – should be conditions of eligibility to claim benefits. (shrink)

A number of writers have drawn on Hayek’s epistemic defence of market institutions to argue that free-markets and tort law are best placed to overcome the knowledge problems associated with the environmental sphere. This paper argues to the contrary, that this Austrian School approach itself suffers from significant knowledge problems. The first of these relates to the ability of Austrian economics to assign victim compensation and the second to the difficulty of establishing causation in complex environmental problems. The paper (...) will also show how alternative approaches may not suffer from these epistemic challenges and are better placed to overcome them. (shrink)

Twice in the 2020 term, in Bostock and Comcast, the Supreme Court doubled down on the reasoning of “but-for causation” to interpret antidiscrimination statutes. According to this reasoning, an outcome is discriminatory because of some status—say, sex or race—just in case the outcome would not have occurred “but-for” the plaintiff’s status. We think this reasoning embeds profound conceptual errors that render the decisions deeply confused. Furthermore, those conceptual errors tend to limit the reach of antidiscrimination law. In this essay, we (...) first unpack the ambiguity of this but-for causal reasoning. We then show that this reasoning arises from a misapplication of tort law principles within antidiscrimination law, and that, as a result, it is both conceptually and normatively indeterminate. (shrink)

The reasonable person standard is key to both Criminal Law and Torts. What does and does not count as reasonable behavior and decision-making is frequently deter- mined by lay jurors. Hence, laypeople’s understanding of the term must be considered, especially whether they use it predominately in an evaluative fashion. In this corpus study based on supervised machine learning models, we investigate whether laypeople use the expression ‘reasonable’ mainly as a descriptive, an evaluative, or merely a value-associated term. We find that (...) ‘reasonable’ is predicted to be an evaluative term in the majority of cases. This supports prescriptive accounts, and challenges descriptive and hybrid accounts of the term—at least given the way we operationalize the latter. Interestingly, other expressions often used interchangeably in jury instructions (e.g. ‘careful,’ ‘ordinary,’ ‘prudent,’ etc), however, are predicted to be descriptive. This indicates a discrepancy between the intended use of the term ‘reasonable’ and the understanding lay jurors might bring into the court room. (shrink)

GREGORY McELWAIN | : This paper explores the intersection of animal and environmental ethics through the thought of Mary Midgley. Midgley’s work offers a shift away from liberal individualist animal ethics toward a relational value system involving interdependence, care, sympathy, and other components of morality that were often overlooked or marginalized in hyperrationalist ethics, though which are now more widely recognized. This is most exemplified in her concept of “the mixed community,” which gained special attention in J. Baird Callicott’s effort (...) to create a “unified environmental ethics.” In this, Callicott saw the potential in Midgley’s thought for bringing animal and environmental ethics “back together again.” However, this paper argues that he oversimplified and misapplied her complex concept. This is primarily due to his attempt to harmonize her approach with a rigid dichotomy between domestic and wild animals—as well as one between individuals and collectives—in his conception of the land ethic in the tradition of Aldo Leopold. Throughout, this paper also highlights Midgley’s value as an early contributor to the convergence of animal and environmental ethics. | : Cet article explore l’intersection entre l’éthique animale et l’éthique environnementale par le biais de la pensée de Mary Midgley. Le travail de Midgley prend ses distances d’une éthique animale libérale individualiste pour se rapprocher d’un système de valeurs relationnel qui implique l’interdépendance, le soin, la sympathie, et d’autres éléments de la morale qui ont souvent été négligés ou marginalisés dans le contexte de l’éthique hyperrationnaliste, bien qu’actuellement plus largement reconnus. Le meilleur exemple de cela se retrouve dans son concept de « la communauté mixte », lequel a bénéficié d’une attention particulière chez J. Baird Callicot et son effort pour créer une « éthique environnementale unifiée ». En cela, Callicot a vu le potentiel de la pensée de Midgley’s pour une « réunification » de l’éthique animale et l’éthique environnementale. Or, cet article soutient qu’il a simplifié et appliqué à tort le concept complexe de Midgley, en raison de sa tentative de concilier l’approche de cette dernière avec une stricte dichotomie entre animaux sauvages et domestiques – en plus d’une autre entre individus et collectivités – suivant sa conception de l’éthique de la terre dans la tradition d’Aldo Leopold. Tout au long du texte, cet article met en relief l’importance de Midgley comme l’une des premiers théoriciens à avoir contribué à la convergence de l’éthique animale et de l’éthique environnementale. (shrink)

I explore how agent-regret and its object—faultlessly harming someone—can call for various responses. I look at two sorts of responses. Firstly, I explore responses that respect the agent’s role as an agent. This revolves around a feature of “it was just an accident”—a common response to agent-regret—that has largely gone ignored in the literature: that it can downplay one’s role as an agent. I argue that we need to take seriously the fact that those who have caused harms are genuine (...) agents, to ignore this fails to allow these agents to move on. Secondly, following Sussman and MacKenzie, I explore responses that benefit the victim. I argue that we should strive to understand how to configure these responses in a way that does not blame the agent. To do this I look at the role of actions in our self-understanding, as people who have done particular things. I end by briefly considering the ways in which tort law and restorative justice might help us to understand how to appropriately respond to accidentally harming someone. I urge that we need to take this as a starting point to find a better way to respond to the agents of faultless harms. (shrink)

What is it for a duty or obligation to be directed? Thinking about paradigmatic cases such as the obligations generated by promises will take us only so far in answering this question. This paper starts by surveying several approaches for understanding directed duties, as well as the challenges they face. It turns out that shared agency features something similar to the directedness of duties. This suggests an account of directedness in terms of shared agency – specifically, in terms of the (...) so-called practical intimacy that holds between individuals when they act together. The final section addresses a challenge to the shared agency approach posed by legal wronging in tort law. (shrink)

Wrong beliefs, known by some as ‘alternative facts’, have proliferated lately in important areas of human life, including social, political, and public health domains. This can be and has been damaging. This brief article proposes an epistemological category classification of these wrong beliefs, with the following mappings: a) ‘No-Information’ marked by willful blindness produces ‘Empty Beliefs’; b) ‘Mis-Information’ yields ‘Mis(taken) Beliefs’; and c) ‘Dis-Information’ predicated on blatant distortions produces ‘Dis(torted) Beliefs’. This simple classification system, is perhaps epistemologically satisfying, and moreover (...) could have positive policy implications. (shrink)

Respondeat superior is a legal doctrine conferring liability from one party onto another because the latter stands in some relationship of authority over the former. Though originally a doctrine of tort law, for the past century it has been used within the criminal law, especially to the end of securing criminal liability for corporations. Here, I argue that on at least one prominent conception of criminal responsibility, we are not justified in using this doctrine in this way. Firms are (...) not answerable for the crimes committed by their employees, because firms cannot answer as to why the crime was committed; they lack the authority to offer the employee’s reasons for action. Though this rules out respondeat superior as a general principle, I show contexts in which vicarious liability is still appropriate in the criminal law, and I respond to a number of other concerns raised by this picture. (shrink)

This article discusses an anomaly in the English law of reproductive liability: that is, an inconsistency between the law’s approach to wrongful life claims and its approach to cases of negligent selection of gametes or embryos in infertility treatments (the selection cases). The article begins with an account of the legal position, which brings into view the relevant inconsistency: while the law treats wrongful life claims as non- actionable, it recognises a cause of action in the selection cases, although the (...) selection cases bear a relevant resemblance to wrongful life claims. The article then considers arguments that may be invoked in an attempt to reconcile the above two strands of the law. Three of these counterarguments consist in attempts to distinguish the selection cases from wrongful life claims. It is argued that these attempts fail to reveal a valid basis for treating these situations differently. A fourth possible counterargument levels against the present analysis a charge of reductio ad absurdum. It is shown that this argument suffers from a fundamental flaw caused by confusion between different senses of the term “identity”. Finally, the article discusses possible changes to the legal position that could rectify the problem. It argues that one of these changes, which focuses on legal redress for violation of personal autonomy, is particularly apt to resolve the problem at hand, but also highlights the need for further inquiry into the broader implications of introducing this form of redress into the law of torts. (shrink)

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 (...) conduct. In both, absent a finding that the foreseeable harm is unreasonable in light of that intended good, no liability will be imposed upon the actor. Even conceding, however, such general similarity between double effect and negligence analysis - disagreement over the proper interpretation of the reasonability criterion at play in negligence poses an additional challenge for the attempt to correlate negligence with double effect. Economic efficiency interpretations of negligence, for example, purportedly based on the Learned Hand Formula and the RESTATEMENT (SECOND) OF THE LAW OF TORTS, propose that culpability depends upon a utilitarian balancing of good effects of conduct (utility) versus its harmful foreseeable consequences (magnitude of risk of injury). Based on such an interpretation of negligence, however, contrasts between actors' states of mind, and normative differences between kinds of goods and harms, ultimately fade into the background and become irrelevant as essential conditions for properly assessing liability. This article elaborates and defends the view that double effect analysis lies at the heart of negligence theory. Part I elucidates in more detail the principle of double effect and describes its prima facie operation in negligence analysis. Part II considers and rejects the economic efficiency interpretation that has been offered as a theory of negligence, overcoming the challenge that such an interpretation presents for the effort to locate double effect analysis in the law. Part III illustrates and confirms the overlap between double effect and negligence by consideration of a series of case applications. The Article proposes that the weighing of conflicting values in double effect analysis and negligence is not achieved - as proposed by law and economics theory with respect to negligence - by imposing a consequentialist-utilitarian reduction of all value to a single concept of good and eliminating the relevance of traditional state of mind distinctions between intention and foreseeability. Instead, each mode of analysis recognizes that distinct culpability determinations flow naturally and plausibly from an appreciation of the traditional legal distinctions made between various types of goods and harms, and upon whether such goods and harms come about as result of an actor's intention or mere foreseeability. Keywords: Double effect, negligence, intention, foreseeability, choice, law and economics, utilitarianism, consequentialism, weighing of values. (shrink)

Over almost a half-century, evidence law scholars and philosophers have contended with what have come to be called the “Proof Paradoxes.” In brief, the following sort of paradox arises: Factfinders in criminal and civil trials are charged with reaching a verdict if the evidence presented meets a particular standard of proof—beyond a reasonable doubt, in criminal cases, and preponderance of the evidence, in civil trials. It seems that purely statistical evidence can suffice for just such a level of certainty in (...) a variety of cases where our intuition is that it would nonetheless be wrong to convict the defendant, or find in favor of the plaintiff, on merely statistical evidence. So, we either have to convict with statistical evidence, in spite of an intuition that this is unsettling, or else explain what (dispositive) deficiency statistical evidence has. -/- Most scholars have tried to justify the resistance to relying on merely statistical evidence: by relying on epistemic deficiencies in this kind of evidence; by relying on court practice; and also by reference to the psychological literature. In fact, I argue, the epistemic deficiencies philosophers and legal scholars allege are suspect. And, I argue, while scholars often discuss unfairness to civil defendants, they ignore a long history of relying on statistical evidence in a variety of civil matters, including employment discrimination, toxic torts, and market share liability cases. Were the dominant arguments in the literature to prevail, it would extremely difficult for plaintiffs to recover in a variety of cases. -/- The various considerations I advance lead to the conclusion that when it comes to naked statistical evidence, philosophers and legal scholars who argue for its insufficiency have been caught with their pants down. (shrink)

Il est communément admis, aussi bien par les spécialistes que les non-spécialistes de la Grèce antique, qu'Aristote considère le barbaros ou l'autre Non-Grec comme radicalement distinct des Grecs (peut-être même racialement) et intrinsèquement inférieur à eux. Cette idée puise sa source dans ses remarques sur l'esclavage, sur les institutions politiques non grecques, sur les caractères naturels ou ethniques. Mais l’idée la plus répandue manque de nuance, et est souvent affirmée à tort en faisant l’économie d’un examen attentif des bases (...) textuelles. Cet article, qui est une sous-section d'un essai plus vaste sur les institutions politiques non-grecques (comme le traitement par Aristote de la politeia de Carthage dans Politique 2.11), soutient qu'Aristote ne distingue pas catégoriquement (et encore moins racialement) les Grecs et les Non-Grecs, ni n’approuve l’assertion selon laquelle les Grecs sont supérieurs aux non-Grecs. En effet, Aristote s'appuie régulièrement sur des institutions politiques non-grecques dans sa propre formulation de la meilleure constitution. (shrink)

Vous pensez peut-être que la peine de mort est injuste ? Ou que l’avortement est moralement acceptable ? Se pourrait-il alors que vous vous trompiez ? C’est en tout cas l’avis des théoriciens de l’erreur. D’après ces philosophes, tous les jugements moraux sont faux parce qu’ils présupposent à tort l’existence de faits moraux à la fois objectifs et non naturels. Organisé autour de ce défi nihiliste, le présent ouvrage aborde les principales théories métaéthiques comme autant de tentatives, plus ou (...) moins fructueuses, de sauver la morale. Les théories qu’on y rencontre combinent invariablement une thèse psychologique (sur la nature des jugements moraux) et une thèse ontologique (sur l’existence d’une réalité morale conforme auxdits présupposés). Dans le style argumentatif sobre et précis qui caractérise la philosophie analytique, ce manuel de métaéthique – le premier en langue française – entreprend d’évaluer minutieusement un ensemble de théories sur la morale. Bien que destiné en premier lieu aux enseignants de philosophie et à leurs étudiants, il se veut accessible à tous ceux qu’intéresse l’éthique. (shrink)

This paper examines whether American parents legally violate their children’s privacy rights when they share embarrassing images of their children on social media without their children’s consent. My inquiry is motivated by recent reports that French authorities have warned French parents that they could face fines and imprisonment for such conduct, if their children sue them once their children turn 18. Where French privacy law is grounded in respect for dignity, thereby explaining the French concerns for parental “over-sharing,” I show (...) that there are three major legal roadblocks for such a case to succeed in US law. First, US privacy tort law largely only protects a person’s image where the person has a commercial interest in his or her image. Secondly, privacy tort laws are subject to constitutional constraints respecting the freedom of speech and press. Third, American courts are reluctant to erode parental authority, except in cases where extraordinary threats to children’s welfare exist. I argue that while existing privacy law in the US is inadequate to offer children legal remedy if their parents share their embarrassing images of them without their consent, the dignity-based concerns of the French should not be neglected. I consider a recent proposal to protect children’s privacy by extending to them the “right to be forgotten” online, but I identify problems in this proposal, and argue it is not a panacea to the over-sharing problem. I conclude by emphasizing our shared social responsibilities to protect children by teaching them about the importance of respecting one another’s privacy and dignity in the online context, and by setting examples as responsible users of internet technologies. (shrink)

The paper focuses on the conditions under which an agent can be justifiably held responsible or liable for the harmful consequences of his or her actions. Kant has famously argued that as long as the agent fulfills his or her moral duty, he or she cannot be blamed for any potential harm that might result from his or her action, no matter how foreseeable these may (have) be(en). I call this the Duty-Absolves-Thesis or DA. I begin by stating the thesis (...) in a more precise form and then go on to assess, one by one, several possible justifications for it: that (i) it wasn’t the view Kant himself actually held or was committed to; (ii) there is nothing strange about the DA, either theoretically or intuitively; (iii) the DA is more plausible as an account of legal (either criminal or tort) liability; (iv) the DA becomes perfectly plausible when conceived as a thesis about what insulates the agent from either remedial moral responsibility or the demands of compensatory justice; (v) the rationale for the DA is to protect our moral assessment of agents and their actions from the threat of moral luck. I show, with the help of the infamous Inquiring Murderer example, all these (and some other) justificatory attempts unsuccessful. I conclude that besides being counter-intuitive, the DA-thesis also lacks firm theoretical grounding and should therefore be rejected as (part of) an account of outcome moral responsibility. (shrink)

Qu’est-ce que l’indignation ? Cette émotion est souvent conçue comme une émotion morale qu’une tierce-partie éprouve vis-à-vis des injustices qu’un agent inflige à un patient. L’indignation aurait ainsi trait aux injustices et serait éprouvée par des individus qui n’en seraient eux-mêmes pas victimes. Cette émotion motiverait la tierce-partie indignée à tenter de réguler l’injustice en l’annulant et en punissant son auteur. Cet article entreprend de montrer que cette conception de l’indignation n’est que partielle. En effet, l’indignation ne porte pas que (...) sur les injustices, mais plus généralement sur les torts injustifiés. Ce faisant, l’indignation peut être une émotion morale, mais aussi une émotion conventionnelle ou esthétique. De plus, elle peut être éprouvée par les individus victime des torts : elle n’est pas uniquement éprouvée par des tierces-parties. De la sorte, les individus indignés qui subissent les torts peuvent eux-mêmes chercher à les annuler et à punir leurs auteurs. Puisqu’elle peut être éprouvée tant par des spectateurs que par les personnes qui subissent les torts et qu’elle incline ceux qui l’éprouvent à faire appel à d’autres personnes pour réguler ces torts, l’indignation vécue individuellement est partageable : elle peut devenir une émotion collective jouant un rôle fondamental dans la régulation sociale en contribuant au renforcement de normes sociales existantes ou à l’émergence de nouvelles normes sociales associées aux idées du juste prévalant dans la société considérée. (shrink)

In this paper I discuss the nature of consent in general, and as it applies to Carlos Nino’s consensual theory of punishment. For Nino the criminal’s consent to change her legal-normative status is a form of implied consent. I distinguish three types of implied consent: 1) implied consent which is based on an operative convention (i.e. tacit consent); 2) implied consent where there is no operative convention; 3) “direct consent” to the legal-normative consequences of a proscribed act – this is (...) the consent which Nino employs. I argue that Nino’s conception of consent in crime exhibits many common features of “everyday” consent, which justify that it be classed as a form of (implied) consent. h us, Nino is right to claim that the consent in crime is similar to the consent in contracts and to the consent to assume a risk in tort law. (shrink)

This article introduces a new formulation of the interest theory of rights. The focus is on ‘Bentham’s test’, which was devised by Matthew Kramer to limit the expansiveness of the interest theory. According to the test, a party holds a right correlative to a duty only if that party stands to undergo a development that is typically detrimental if the duty is breached. The article shows how the entire interest theory can be reformulated in terms of the test. The article (...) then focuses on a further strength of the interest theory, brought to the fore by the new formulation. In any Western legal system, the tortious maltreatment of a child or a mentally disabled individual results in a compensatory duty. The interest theory can account for such duties in a simple and elegant way. The will theory, on the other hand, struggles to explain such compensatory duties unless it abandons some of its main tenets. (shrink)

In this paper, I assess critically the recent debate on corrective duties across moral and legal philosophy. Two prominent positions have emerged: the Kantian rights-based view (holding that what triggers corrections is a failure to respect others' right to freedom) and the so-called continuity view (correcting means attempting to do what one was supposed to do before). Neither position, I try to show, offers a satisfactory explanation of the ground (why correct?) and content (how to correct?) of corrective duties. In (...) the final section, I suggest that it is probably better to restrict the label “corrective duties” to duties generated by interpersonal wronging. (shrink)

Privacy involves a zone of inaccessibility in a particular context. In social discourse it pertains to activities that are not public, the latter being by definition knowable by outsiders. The public domain so called is the opposite of secrecy and somewhat less so of confidentiality. The private sphere is respected in law and morality, now in terms of a right to privacy. In law some violations of privacy are torts. Philosophers tend to associate privacy with personhood. Professional relationships are prima (...) facie private but may be investigated for cause. Privacy may entail both intimacy and caring but neither necessarily so. Finally, various technology-based means of intrusion are rendering privacy ever more difficult to sustain. (shrink)

Guardians of companion animals killed wrongfully in the U.S. historically receive compensatory judgments reflecting the animal’s economic value. As animals are property in torts law, this value typically is the animal’s fair market value—which is often zero. But this is only the animal’s value, as it were, to a stranger and, in light of the fact that many guardians value their animals at rates far in excess of fair market value, legislatures and courts have begun to recognize a second value, (...) the animal’s value to her guardian. What is this noneconomic value, and how should guardians be compensated for it? In Part 1, I propose a novel method to answer this question. My method includes a third, even more controversial, value: the animal’s value to herself. The idea that an animal could invest in herself faces many criticisms. In Part 2, I defend the claim by examining the mental capacities of dogs (Canis familiaris). I rebut the central objection—that dogs lack the psychological capacities required for self-investment—by showing that dogs are autonomous, think about their futures, and inhibit their desires in light of their goals. I close by suggesting that whereas the approach has conservative implications for the valuation of companion animals, it has radical implications for the valuation of agricultural animals. -/- Keywords: companion animals, animal law, legal theory, value theory, practical ethics, economic value, noneconomic value, intrinsic value, instrumental value, animal welfare, dogs, animal rights, capital value, self-investment value, autonomy, wrongful death, philosophy of animal law, animal minds, moral standing of animals, legal standing of animals, agency, prospection, canine neurobiology, bereavement, replaceability, non-ideal ethics . (shrink)

US Senate is considering legislation designed to immunize small businesses from lawsuits brought by customers alleging to have been infected with COVID-19 while on the premises. The legislation seeks to subsidize reopening small businesses by reducing their vulnerability to liability. I argue that the legislation produces worse public health outcomes than existing liability regimes, obliterates claims to redress supported by corrective justice, and unfairly burdens victims by forcing them to become de facto insurers of their injurers. In the US, where (...) health insurance is inextricably linked with employment, and during the pandemic with the consequent loss of employment, the legislation is cruel in addition to being ineffective, unjust, unfair and inappropriate. Since I first uploaded this manuscript to Philpapers, Senate Republicans have in fact introduced specific legislation that is marginally different than the one I discuss in the manuscript. Instead of offering blanket immunity, the current Republican proposal offers a series of substantial barriers both to filing lawsuits and to securing a successful verdict at trial. I discuss these as an addendum to the main paper. In short, though the changes impact some features of my argument, they do not alter any of the conclusions. The current proposal produces worse public health outcomes than would existing tort regime; it leaves the vast majority of those with legitimate claims to repair in corrective justice without a remedy, when providing the opportunity to secure a remedy for wrongs is in large measure, the essential nature of tort liability. Worse still, it continues to render victims the de facto insurers of those who have wronged them; it imposes the burden of spreading risks on victims who are considerably less efficient risk spreaders than are businesses and hospitals; it constitutes an inappropriate response to the challenge it seeks to address, i.e. subsidizing various sectors of the economy by reducing their overall costs; and given the fact that in the US health insurance is too closely linked to employment, it shifts the costs of the pandemic to those who are most at risk of losing their health insurance, rendering the proposal cruel in addition to inefficient, unjust, unfair and inappropriate. For those interested, I am considering a short op-ed piece assessing the particular legislative proposal. If I follow through I will let the readership know where that can be found. (shrink)

This paper explicates a conception of injury as right-violation, which allows us to distinguish between setbacks to interests that should, and should not, be the concern of theories of justice. It begins by introducing a hybrid theory of rights, grounded in (a) the mobilisation of our moral equality to (b) protect our most important interests, and shows how violations of rights are the concern of justice, while setbacks where one of the twin grounds of rights is defeated are not. It (...) then looks more closely at the substantive moral components of injury, namely harm—damage to one’s interests—and wrong—disrespect for one’s moral equality. It argues that, on the hybrid conception of rights, harm and wrong are individually necessary and jointly sufficient components of injury, and the disvalue of neither is reducible to the other—in particular, it is a mistake to construe the disrespect identified by wrong as another damaged interest. Finally, it distinguishes between the public and private dimensions of harm and wrong, and makes some preliminary suggestions as to whether the remedy for these different dimensions should lie in criminal, distributive, or corrective justice. (shrink)

This article juxtaposes a jurisprudential thesis and a practical problem in an attempt to gain critical insight into both. The jurisprudential thesis is Dworkin’s rights thesis. The practical problem revolves around judicial resort to the floodgates argument in civil adjudication (or, more specifically, a version of this argument focused on adjudicative resources, which is dubbed here the FA). The analysis yields three principal observations: (1) Judicial resort to the FA is discordant with the rights thesis. (2) The rights thesis is (...) instructive in one way but mistaken in another. While Dworkin has highlighted some valid and sound reasons against judicial policymaking, his conclusive exclusion of judicial policymaking from civil law adjudication is erroneous. Civil law adjudication, it is argued, is an arena of ineliminable tension between principle and policy. (3) The FA is a type of policy argument particularly vulnerable to objections against judicial policymaking. There should, therefore, be a (rebuttable) presumption against judicial resort to it. (shrink)

L'une des controverses les disputées sur la priorité des découvertes scientifiques est celle de la loi de la gravitation universelle, entre Isaac Newton et Robert Hooke. Hooke a accusé Newton de plagiat, de reprendre ses idées exprimées dans des travaux antérieurs. J'essaie de montrer, sur la base d'une analyse précédente, que tous les deux scientifiques avaient tort: Robert Hooke parce que sa théorie n'était fondamentalement que des idées qui ne se seraient jamais matérialisées sans l'appui mathématique d'Isaac Newton; et (...) ce dernier avait tort de ne pas reconnaître les idées de Hooke dans l'élaboration de la théorie de la gravité. En outre, après la mort de Hooke et son accession à la présidence de la Royal Society, Newton a retiré de l'institution toute trace de l'ancien président Robert Hooke. Pour cela, je détaille les accusations et les arguments de chacune des parties, et comment ce différend a été perçu par les contemporains des deux scientifiques. Je termine le papier avec les conclusions tirées du contenu. -/- TABLE: -/- Abstract Introduction La contribution de Robert Hooke à la loi de la gravitation universelle La contribution d'Isaac Newton à la loi de la gravitation universelle La revendication de priorité de Robert Hooke sur la loi de la gravitation universelle La défense de Newton La controverse dans l'opinion des scientifiques contemporains Ce que disent les supporters d'Isaac Newton Ce que disent les supporters de Robert Hooke Conclusions Bibliographie Notes -/- DOI: 10.13140/RG.2.2.20313.06245. (shrink)

L'isolement social (désocialisation) implique une absence totale ou presque totale de contact entre un individu et la société. Cela peut être un problème pour les personnes de tout âge, bien que les symptômes puissent différer selon le groupe d'âge. L'isolement social peut inclure le fait de rester à la maison pendant de longues périodes et le manque de communication face à face avec la famille, les connaissances, les amis ou les collègues. L'isolement social peut conduire à des sentiments de solitude, (...) de peur des autres ou de mauvaise estime de soi. Nous ne pouvons pas exister indépendamment de nos relations avec les autres. Notre propre humanité est réduite lorsque les autres sont traités sans dignité et sans respect. Dans le même temps, causer du tort à une autre personne peut également affecter la perception de soi-même. Il s'avère que l'humanité d'une personne dépend de l'humanité de ceux qui l'entourent. DOI: 10.13140/RG.2.2.14145.79203. (shrink)

Cet article s’intéresse aux injustices épistémiques à l’œuvre dans le milieu médical et en particulier dans la pratique du diagnostic. Il s’inscrit dans la continuité des discussions philosophiques liées aux injustices épistémiques, et résonne en particulier avec le travail de Miranda Fricker sur l’injustice herméneutique1. Le but principal est de montrer que l’accès au diagnostic est un enjeu de justice épistémique. Les critiques de la médicalisation dénoncent depuis longtemps des torts épistémiques causés par le milieu médical – par exemple la (...) pathologisation liée au diagnostic. Tout en reconnaissant ces dangers, nous montrons, à travers une analyse de témoignages et de contenus produits par des personnes diagnostiquées de différentes conditions, que des bénéfices épistémiques peuvent aussi découler d’un diagnostic. Ainsi, nous proposons de distinguer entre bienfait thérapeutique et bienfait herméneutique du diagnostic. Ensuite, nous défendons que certains déficits de diagnostics constituent des injustices herméneutiques structurelles. Nous avançons finalement l’idée qu’une approche reconnaissant et valorisant les bienfaits épistémiques du diagnostic peut avoir un impact positif sur nos pratiques médicales, et peut également jeter un éclairage nouveau, plus charitable, sur les pratiques d’autodiagnostic. (shrink)

Greatly aided by an information age in which protesting laborers in a remote offshore outpost can capture front page headlines around the globe, theSarbanes-Oxley Act of 2002 (SARBOX) has made corporate transparency the linchpin for good corporate governance. Under a SARBOX-enhancedregulatory framework, publicly traded corporations are required to rapidly disclose material changes in their financial conditions or operations—changes such as impairments to goodwill, a trademark, or some other intangible corporate asset. Especially challenging for multinational corporations (MNCs) with far-flung corporate empires (...) is the need to stay abreast of the ebb and flow of goodwill, at a time when transnational human rights groups are aggressively mobilizing world opinion against the sweatshop labor conditions that abound at the offshore production sites favored by MNCs. The author explains why the convergence of a digital age of free-flowing information and the advent of SARBOX, a legislative enactment of paraenetic design, is causing the boards of MNCs to more critically evaluate the long-term costs of their offshore operations. (shrink)

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 (...) doctrine of negligence and failing as a revisionary account for the law; overly burdening autonomy and restricting the liberty of thought; adversely affecting the prevention of negligent harm—the essence of the negligence standard—; and, raising severe probative difficulties. Moreover, the duty of care also does not give rise to what I call a de facto duty to try. The duty of care is better construed to require only certain conduct and not trying. Returning to the primary appeal and motivation for exploring the validity of equating the duty of care with a duty to try—searching for the responsibility-component in the negligence standard—I argue that the responsibility-component in negligence does not take the form of an obligation to try but rather has a conditional form, manifested in the conditions of applicability of the negligence standard. In other words, the negligence standard comprises a conduct-based as opposed to a combined action-/intent-based duty (such as a duty to try) as its duty of care, a duty that only applies to actors who possess the capacity to intentionally or knowingly comply with it, or, put differently, possess the capacity to try. (shrink)

For decades, the question of whether dialectics applies to nature has been a hotly debated topic in the Marxian literature. A number of authors have claimed that the Marxist outlook on nature and natural sciences has been for-mulated by Engels alone. According to this view, Marx, unlike Engels, was concerned not with trans-historical laws governing the universe but with some particular laws of society. This anti-Engels camp, so to speak, mainly tended to draw bold lines between Marx and Engels, and (...) charged Engels with dis-torting Marxʼs original ideas of dialectics by some kind of reductionism, sci-entism and positivism that might also end up in an obsolete idealism. Engels was „following Hegelʼs mistaken lead“ by extending „the method to apply also to nature“. However, dialectics was „limited ... to the realms of history and society“.2 Some others objected to this view, and characterized any at-tempt to sharply contrast Engels with Marx as concealed mysticism and idealism. For the pro-Engels camp, Engelsʼs conception of nature was „in full conformity“ with Marxʼs materialist philosophy.4 Dialectics of nature was „no invention of Engels“. On the contrary, „it was worked out in collaboration with Marx and had his full agreement. (shrink)

My aim in the present paper is to develop a new kind of argument in support of the ideal of liberal neutrality. This argument combines some basic moral principles with a thesis about the relationship between the correct standards of justification for a belief/action and certain contextual factors. The idea is that the level of importance of what is at stake in a specific context of action determines how demanding the correct standards to justify an action based on a specific (...) set of beliefs ought to be. In certain exceptional contexts –where the seriousness of harm in case of mistake and the level of an agent’s responsibility for the outcome of his action are specially high– a very small probability of making a mistake should be recognized as a good reason to avoid to act based on beliefs that we nonetheless affirm with a high degree of confidence and that actually justify our action in other contexts. The further steps of the argument consist in probing 1) that the fundamental state’s policies are such a case of exceptional context, 2) that perfectionist policies are the type of actions we should avoid, and 3) that policies that satisfy neutral standards of justification are not affected by the reasons which lead to reject perfectionist policies. L’objectif de cet article est de développer un nouveau type d’argument en faveur de l’idéal la neutralité libérale. Cet argument combine des principes moraux de base à une thèse concernant le rapport entre, d’une part, les standards de justification corrects d’une croyance/action et, d’autre part, certains facteurs contextuels. L’idée de fond est que l’importance de ce dont il est question dans un contexte spécifique d’actions détermine le niveau d’exigence des standards de justification pour une action basée sur un ensemble spécifique de croyances. Dans certains contextes exceptionnels – où l’importance du tort causé en cas d’erreur est grande et où le niveau de responsabilité de l’agent envers ses actions est élevé – une très petite probabilité d’erreur devrait être considérée comme une bonne raison d’éviter d’agir en suivant des croyances que, néanmoins, nous affirmons avec un haut niveau de confiance et qui justifient nos actions dans d’autres contextes. Les étapes de l’argumentation consistent à vérifier que 1) les politiques fondamentales de l’État sont un cas d’un tel type de contexte exceptionnel, 2) les politiques perfectionnistes sont le type d’actions que l’on devrait éviter, et 3) les politiques qui satisfont les standards de justification neutre ne sont pas affectées par les raisons qui nous poussent à rejeter les politiques perfectionnistes. (shrink)

Criminal offences and regulatory breaches in using social networking evidence in personal injury litigation Pages 2-7 Current Criminal Law ISSN 1758-8405 Volume 2 Issue 3 March 2010 Author SALLY RAMAGE WIPO 900614 UK TM 2401827 USA TM 3,440.910 Orchid ID 0000-0002-8854-4293 Sally Ramage, BA (Hons), MBA, LLM, MPhil, MCIJ, MCMI, DA., ASLS, BAWP. Publisher & Managing Editor, Criminal Lawyer series [1980-2022](ISSN 2049-8047); Current Criminal Law series [2008-2022] (ISSN 1758-8405) and Criminal Law News series [2008-2022] (ISSN 1758-8421). Sweet & Maxwell (Thomson (...) Reuters) (Licensed Annotator of UK Statutes) in Current Law Statutes Annotated, (2006, 2009, 2010 editions) (sole and separate S&M contracts) for 7 UK Criminal Justice Statutes: UK Safeguarding Vulnerable Persons Act 2006; UK International Development Act 2006; UK Fraud Act 2006; UK Policing and Crime Act 2009, UK Local Democracy Act 2009; UK Bribery Act 2010; and UK Crime and Security Act 2010. Trade Mark SALLY RAMAGE ® 2401827 (2005-2025) in the UK, WIPO Trade Mark SALLY RAMAGE® 900164; USA-(Trade Mark 3,440,910) (2008-2028). WARNING: The doing of an unauthorized act in relation to a copyright work may result in both a civil claim for damages and criminal prosecution. Essentially, Social Network information may not always be admissible in a court of law but may be the door to lead to other, non-contentious evidence. In fact, even illegally obtained evidence may sometimes be admissible evidence, though this is not absolute. Most of the information available on social networking sites will be ‘personal data’. The data controller is the network operator, without whose consent, collecting such information could be an offence, unless it was necessary for the purpose of preventing or detecting crime. (shrink)

According to the mental model theory, causes and enablers differ in meaning, and therefore in their logical consequences (Goldvarg & Johnson-Laird, 2001). They are consistent with different possibilities. Recent psychological studies have argued to the contrary, and suggested that linguistic cues guide this distinction (Kuhnmünch & Beller, 2005). The issue is important because neither British nor American law recognizes this distinction (e.g., Roberts & Zuckerman, 2004). Yet, in our view, it is central to human conceptions of causality. Hence, in two (...) experiments, we examined our participants’ ability to distinguish between causes and enablers in scenarios describing the actions of two agents and a subsequent outcome, e.g.: ‘Mary threw a lighted cigarette into a bush. Just as the cigarette was going out, Laura deliberately threw petrol on it. The resulting fire burnt down her neighbor’s house.’ Here Mary enabled the fire to occur, whereas Laura caused the fire to occur. (shrink)

When a plaintiff has been negligent in the sense that he should have acted otherwise, should the same criterion of negligence apply that would apply if he were creating risks only to others? Indeed, are there any persuasive reasons not to apply a radically different criterion of negligence? Moreover, should the plaintiff's recovery be diminished, outside the category of assumption of risk, even when the plaintiff has not been negligent? What are the justifiable criteria and limits of such plaintiff strict (...) responsibility? There are reasons for caution before concluding that a victim's self-regarding conduct is negligent. A victim often deserves special sympathy in the light of his special predicament, choosing between two evils, the immediate costs of which he must personally bear. Indeed, it might appear that the law is unfair or unduly onerous when it places significant demands on a victim with respect to his own self-regarding behavior. On the other hand, we should not forget that the victim's “duty” to use reasonable care is merely conditional: it applies only in case the victim seeks a remedy against the tortfeasor. (shrink)