Category Archives: Tort

Cooter and Porat, ‘Torts and Restitution: Legal Divergence and Economic Convergence’

ABSTRACT This Article explores the divergence in law and convergence in economics in dealing with harms and benefits. While tort law usually makes the injurer internalize wrongful harms through damages, restitution law does not enable the benefactor to internalize the benefits she confers on others without their request. In both harm and benefit cases, however, […]

Jeff Berryman, ‘Non-Pecuniary Damages in Common Law Canadian Tort Law’

ABSTRACT It is now an uncontroversial proposition that the choice of remedy following a determination of infringement of a substantive right engages distinct principles associated with the law of remedies and it is for the court to match remedial function to underlying substantive right. The law of remedies can be divided into a number of […]

Apostolos Chronopoulos, ‘Strict Liability and Negligence in Copyright Law: Fair Use as Regulation of Activity Levels’

INTRODUCTION … In this Article, I argue that the tort of copyright infringement constitutes a mixed system of liability, which resorts to both strict liability and negligence to achieve the utilitarian aim of promoting the progress of science and the useful arts, as instructed by the Intellectual Property Clause of the Constitution. Indeed, copyright infringement […]

‘Damages for wrongful life refused’

ARB v IVF Hammersmith and Another [2018] Civ 2803 (17 December 2018). Legal policy in the UK has traditionally prohibited the granting of damages for the wrongful conception or birth of a child in cases of negligence. In this case the Court of Appeal has confirmed that this bar is equally applicable to a wrongful […]

‘Civil Liability Act 2018 receives Royal Assent’

“The news that the Civil Liability Act 2018 received Royal Assent on 20th December 2018 may have passed many by due to the Christmas Holiday period. Now that it is an Act of Parliament it is perhaps sensible to look more carefully at the terms of the Act to assess what areas may give rise […]

Moghtaderi, Farmer and Black, ‘Damage Caps and Defensive Medicine: Reexamination with Patient‐Level Data’

ABSTRACT Physicians often claim that they practice ‘defensive medicine’, including ordering extra imaging and laboratory tests, due to fear of malpractice liability. Caps on noneconomic damages are the principal proposed remedy. Do these caps in fact reduce testing, overall health‐care spending, or both? We study the effects of ‘third‐wave’ damage caps, adopted in the 2000s, […]

‘Rumbling In Robes Round 2 – Civil Court Orders Dutch State To Accelerate Climate Change Mitigation’

“On 9 October 2018, the Civil Division of the The Hague Court of Appeal in the Netherlands has delivered its judgment on the appeal of the ‘Urgenda case’. The Court imposed an order to act on the Dutch government to adjust its policy from 20% to achieve a 25% emission reduction by 2020, compared to […]

‘Comparative Pharmaceutical Products Liability’

“The latest issue of the journal Pharmaceuticals Policy and Law is devoted to comparative pharmaceutical products liability. Mike Green and I contributed a descriptive piece on US law, and Marshall Shapo did as well …” (more) [Christopher Robinette, TortsProf Blog, 8 January]

Matthew Russo, ‘Productive Public Nuisance’

ABSTRACT From removing foul smelling pigsties from urban areas to preventing the dumping of toxic waste into local water supplies, the law has long been used to address environmental issues of all kinds. Threats to public health and the environment remain some of the most urgent challenges facing society today and far outweigh the resources […]

Aaron Taylor, ‘Concurrent Duties’

ABSTRACT This paper offers an account of concurrent liability, and in particular the existence of, and interaction between, concurrent contractual and non‐contractual duties. It argues for five essential propositions: (1) a defendant can owe simultaneous private law duties towards a claimant, the content of which overlaps in whole or in part; (2) cases of concurrent […]