The risk of tort liability for health maintenance organizations and other managed care plans has dramatically increased in recent years. This is due in part to the growing percentage of health care rendered through managed care plans. The cost-containment mechanisms commonly used by managed care plans, such as limiting access to services and/or choice of providers, creates a climate ripe for disputes that may end up in court. As dissatisfied patients and providers seek recourse in the courts, (...) class='Hi'>tort doctrines are extended and new legal theories emerge as needed. For example, the concepts of direct and vicarious tort liability developed in the hospital context have been extended by courts to encompass HMOs. vicarious liability claims, based on ostensible agency or respondeat superior doctrines, have been brought against HMOs and managed care plans for negligent treatment by physicians selected to provide care to members. (shrink)

The book provides a comprehensive and principled account of the uncertainty problem that arises in tort litigation. It presents and critically examines the existing doctrinal solutions of the problem, as evolved in England, the United States, Canada, and Israel, and also offers a number of original solutions, such as imposition of collective liability and liability for evidential damage. Among the issues dealt with by the book are rapidly developing areas of tort law, such as mass torts, (...) liability for imposing risk and the like. The book combines the traditional doctrinal depiction of the law with general theoretical insights that include economic analysis. (shrink)

Class action lawsuits and the justice that they are supposed to enforce have become of great concem to legislators in recent years. The traditional ruIes of tort liability cannot completely support the court decisions that have been reached. The rulings, however, are clearly in the interest of giving victims the justice that they are due. Legal scholars, such as Jules Coleman, claim that the conflicts between tort liability and class action justice cannot be reconciled in our (...) legal system. I propose an avenue of analysis whereby the principles of justice that support tort law are preserved as needed for modem issues, yet at the same time address the genuine public policy concems in these class actions. (shrink)

This essay applies Hegel's theory of remedies to the question of whether and when breach of a penal statute should attract civil liability in tort. For Hegel, the purpose of a remedy is to vindicate the human right to self-determination by refuting the claim to validity implied in intentional or negligent acts that infringe this right. Accordingly, in determining the civil effect of legislation, a distinction must be made between statutes that effectuate pre-existing rights and those which create (...) new rights in the attempt to maximize aggregate welfare. The former should confer a civil right of action, the latter should not. Statutes that impose a duty of affirmative action should be enforced civilly if their purpose is to protect individual autonomy in circumstances where one person has gained control over the welfare of another. And statutes that protect persons from exposure to unreasonable risk should confer a civil right of action provided that the conditions of ordinary negligence liability are met. These conditions ought to supplant those connected with the legislative intent theory of statutory torts. (shrink)

In NX v. Cabrini Medical Center, New York's highest court overruled a divided Appellate Division and held that, as a matter of law, a jury could find a hospital negligent for its failure to protect a patient from sexual assault. The court refused, however, to adopt a higher standard of tort liability for health-care providers who treat incapacitated patients.

L’accident nucléaire de Fukushima a engendré une série de problèmes nouveaux. Comme il s’agissait d’une responsabilité stricte, les victimes n’ont pas eu à prouver la négligence mais ils ont entamé une action pour obtenir davantage de dédommagements pour atteinte morale. Ceci conduit à poser la question de la culpabilité pour négligence et stricte responsabilité. Je propose de ne pas entendre culpabilité au sens moral mais d’y voir une déviation par rapport à la norme. Plus grande sera la déviation, plus grande (...) la culpabilité, sans se soucier de ce qui a entraîné la responsabilité. Quant aux dommages, lesquels peuvent être compensés et lesquels ne le peuvent pas, voilà la question. Il était important de trouver des critères pour étayer cette décision et de les justifier. Pour cela, il faut étudier la structure de la responsabilité pour faute (négligence aussi bien que stricte responsabilité) et voir comment les principes fondamentaux de la justice distributive et de la justice commutative s’appliquent à cette structure. (shrink)

Bernard Williams drew our attention to what might be wrong with denying the role of luck in our understanding of agency and responsibility. Susan Wolf and David Enoch, in separate works, have asked us to focus instead on what might be virtuous and valuable in embracing that role, and on how our institutions might assist us in that regard. They claim that the agent who ‘takes’ a responsibility that law or morality do not already assign to them may be displaying (...) a special moral virtue or exercising a distinctive moral power. I raise some objections to Wolf’s and Enoch’s case for that claim, and query some of its purported institutional implications for tort law systems. (shrink)

The American Journal of Bioethics, Volume 12, Issue 4, Page 15-17, April 2012.

Volume 10, Issue 3, September 2019, Page 396-407.

Is the negligence standard in accident law acceptable to the egalitarian? The egalitarian - the egalitarian who would compensate only losses for which the actor was not responsible - cannot accept either a system of strict liability for all accidents or a system of social insurance for all accidents. A system of tort law acceptable to the responsibility - egalitarian must be a system based on negligence. But what will negligence mean? A negligence system in which the notion (...) of reasonableness is based on efficiency, I argue, is a system that redistributes wealth from the less well off to those better off. I consider alternative notions of reasonableness, ending up with a principle of proportional responsibility and distinguishing between commercial and non-commercial cases. (shrink)

Courses on bioethics and the law traditionally have focused their coverage on ethical issues arising from individual patients’ encounters with the medical care system, but the course also provides an excellent opportunity to expose students to ethical issues arising at the intersection of medical care and public health. The following materials were assembled for use near the end of a semester-long law school course in Bioethics & Law. I taught the course relying heavily on problems contained in Barry R. Furrow (...) et al., Bioethics: Health Care Law and Ethics, 7th ed., which was the primary text for the course. (shrink)

Tort law and liability insurance have a complex interaction in which each shapes the evolution and effects of the other. This interaction and its many forms and facets in different international contexts must be comprehended to understand fully the ethical responsibilities of liability insurers. This essay builds on previous scholarship on the tort law–liability insurance interaction through a series of observations from the perspective of a global reinsurer. It seeks in part to extend previous analyses (...) of this interaction by also considering issues in the developing world. It seeks to make some normative questions and stances explicit concerning this interaction, as well as to identify some empirical questions that still need to be answered. The responsibility of liability insurers includes ethically shaping the responsibility of others in interaction with tort law in countless diverse situations. (shrink)

This paper offers an economic analysis of one aspect of the possible liability for incorrect information traded on information markets: expert liability for incorrect asset valuation. The article does not address the questions of whether and under what circumstances an expert should bear contractual liability for an incorrect valuation. Rather, it assumes such contractual liability towards the person who has solicited the opinion and focuses instead on analyzing the circumstances under which the expert’s liability should (...) be extended to third parties as well. (shrink)

The current rise in malpractice litigation has led to concern in the research community as to the prospect of litigation against researchers. Clearly as the responsibility for the day-to-day conduct of the research falls upon the researchers they will be potentially liable should there be negligence in the conduct of the research project itself. But to what extent can the research ethics committee and its members be held liable should harm result to the research subject? How far does the prospect (...) of the threat of litigation equate with the reality of the prospect of liability? Although the NHS research governance framework suggests that primary responsibility for the conduct of the trial is with the researcher this does not mean that REC members will be immune from actions in tort where research subjects suffer harm in the conduct of a research project approved by their NHS REC. This paper focuses upon the prospect for liability in the law of tort of NHS RECs and their members. While in practice the vast majority of such claims are unlikely to be successful members of RECs may incur resultant legal costs as a consequence of involvement in proposed litigation. It is submitted that the scope of indemnity provision provided to RECs and their members should be precisely determined, otherwise there is a real prospect that the risk of malpractice litigation may deter individuals from serving on such committees. (shrink)

Errata slip inserted. Bibliography: p. 137-140.

Many recent decisions in tort law attempt to combine two conceptually incommensurable features: a traditional 'but for' test of factual causation, and the scientific or medical evidence that is required to explain how some injury occurred. Even when applied to macroscopic objects, the 'but for' test fails to identify causes, because it merely rephrases in the language of possible worlds what may be inferred from what is inductively known about the actual world. Since scientific theories explain the occurrence of (...) events without reference to causes, this test of causation is not only ineffectual but also inapplicable to scientific or medical evidence. Tort law, therefore, should abandon the 'but for' test; when scientific or medical evidence is required in a tort case, the courts should rely on the explanatory strategies that function within the theories from which they borrow such evidence. (shrink)

Standard theories of liability say that X is liable to Y only if Y was harmed, only if X caused Y harm, and (usually) only if X was at fault. This article offers a series of criticisms of each of these claims, and use them to construct an alternative theory of liability in which the nature of X's having imposed a risk of harm on Y is central to the question of when X is liable to Y, and (...) for how much. The article ends with some conjectures on ignorance as an excusing condition. (shrink)

Should there be civil liability when a person who could easily and without risk rescue another fails to do so? It is argued that the failure to act does not cause the harm that follows, and that the misfeasance/nonfeasance distinction provides no basis for liability. In spite of this, it is maintained that there can sometimes be a duty to rescue, and even a right to be rescued, even in the absence of a voluntary undertaking or an explicit (...) assumption of responsibility.There are convincing arguments for some sort of legal recognition of a duty to rescue, but these arguments do not support tort liability. Nor is a case for tort liability made with the argument that a growth of tort law in this direction would be compatible with the values most centrally involved in the division between torts and contracts. Furthermore, there is a case against tort liability — namely, that the purpose of tort liability is to compensate, that there are certain sorts of situations in which compensation is apposite, and that failure to rescue does not fit into these categories. Criminal liability is the appropriate way for the law to recognize a duty to rescue. (shrink)

This book collects John Gardner's celebrated essays on the theory of private law, alongside two new essays. Together they range across the central puzzles in understanding the significance of outcomes, the role of justice in private law, strict liability, the reasonable person standard, and the role of public policy in tort law.

In tort law, including Lithuanian tort law, damage usually is divided into two types: pecuniary and non-pecuniary damage. The concept of non-pecuniary damage has recently become a focus of attention of Lithuanian legal researchers. However, it has to be noted that the issues related to the concept of pecuniary damage remain scarcely analysed. As a result, the unique type of pecuniary damage, i.e. the damage of purely economic character, has received no attention whatsoever in Lithuanian tort law. (...) It is usually believed that the defence of the values of purely material character fall into the sphere of contractual law, while tort law is not concerned with the protection of these values. However, in the course of the development of social relations it has become apparent that in the present-day society personal financial losses have become equally important to the cases of actual damage to a person or a property. On the other hand, the fear to overextend the limits of tort law and, thus, limit the persons’ freedom to act, coupled with the different nature of the values protected by tort law provide grounds for the position that relatively abstract financial interests and absolute values or relative personal values should be protected in different ways. Referring to the doctrine and practice of foreign countries as well as the results of the analysis of Lithuanian positive law and court practices, in this article we aim at giving an answer to the question of where and how the ambit of protection under the tort law in the cases of damage of purely economic character should be defined. (shrink)

This chapter contains sections titled: Economic Theories: Internalization Economic Theories: Deterrence Economic Theories: Loss Spreading Rights‐Based Theories and Distributive Justice Rights‐Based Theories and Corrective Justice References.

At the core of the tort preemption cases before the U.S. Supreme Court is the extent to which state law can impose more stringent liability standards than federal law. The express preemption cases focus on whether the state law requirements are “different from, or in addition to” the federally imposed requirements. And the implied conflict preemption cases examine whether the state law standards are incompatible or at least at odds with the federal regulatory scheme. But the preemption cases (...) in the appellate pipeline - what I shall term the “second wave” of preemption cases - address a separate analytic question. Their focus is less on the substantive aspects of regulatory standards, and more on their enforcement. When can state tort law impose substantive duties or obligations that are “parallel” to federal requirements without thereby encroaching upon a federal agency’s discretionary enforcement prerogative? This is the new frontier in products liability preemption. My proposed model suggests that courts facing these new issues should solicit input from federal agencies before resolving them. The model thereby offers a hybrid private-public model for the regulation of health and safety. It advocates an extension of my “agency reference model” to the “enforcement preemption” context: courts should place more emphasis on FDA input when deciding whether tort requirements are “parallel” to federal dictates, and whether, even if they are, they nonetheless infringe on the federal agency’s discretionary enforcement prerogatives. Courts would thus seek guidance from federal agencies to determine whether a private right of action exists for the enforcement, via state law claims, of federal regulations. (shrink)

Tort law does many things—it determines substantive rights, decides what counts as violating these rights, recognizes rights of repair, and grants rights of redress. Two non-instrumentalist conceptions of tort law appear to dominate how we are supposed to understand and discharge these tasks. One conception takes tort law to be the law of wrongs, whereas the other conception identifies tort law with the law of victim recourse. I argue that both conceptions (including a combination of both) (...) mischaracterize what tort law does and what it should be doing. By contrast, the conception I shall defend—viz., the conflict theory of tort law—takes the basic task of tort law to be identifying the value of the conflict to which it responds (or which it shapes). In fact, there are three types of conflicts: inherently valuable, tolerably valuable, and valueless. Each type of conflict calls for a qualitatively different response by the law of torts. The conflict theory, I argue, changes the way we understand and determine the rights, duties, liabilities, and remedies that arise in and around tort law. I demonstrate this claim in connection with the tort of battery and then extend the analysis to capture the tort law of workplace and, in particular, trespass law as it applies to nonconsensual access to the workplace by organizers and by workers. (shrink)

The courts have experienced difficulty in justifying the imposition of liability to third parties for negligent misstatements. The justifications ordinarily invoked relate to notions of assumption of responsibility and detrimental reliance. These can be seen, in turn, to rest upon a normative framework of give and take (or «mutuality») between statement makers and third party recipients. This article challenges the cogency of that normative framework and offers an alternative based upon the remedial nature of tort, which has traditionally (...) focused upon the particular interactions by which wrongdoers have caused harm to others. The most important indicators of liability to third parties relate, in turn, to normatively significant features of the causal sequence between acting and the infliction of harm. These indicators, it is submitted, are (i) actual knowledge of the likelihood of harm if care is not taken and (ii) the tightness of the causal connection. (shrink)

:Strict liability in tort law is thought by some to have a moral counterpart. In this essay I attempt to determine whether there is, in fact, strict liability in the moral domain. I argue that there is, and I critically evaluate several accounts of its normative foundations before suggesting one of my own.

Among the most complicated issues in the law of delict, in the case of multiple debtors, is to determine the scope of each co-debtor’s liability. The rule of proportional liability clearly favours debtors more than the aggrieved party. And, on the contrary, the solidary liability best suits the interests of the aggrieved party as the risk of co-debtor’s insolvency is transferred to the debtors. Furthermore, in the latter case, the debtors who attempt to allocate the scope of (...) their liability among themselves and fail to reach an agreement have to undergo two legal procedures: the first concerning the compensation to the creditor, and the second concerning the determination of the scope of their liability among themselves. Adequate balancing of the interests of the two parties (the debtor and the creditor) lies among the major tasks of tort law. Therefore, he law should seek specific rules instrumental in determining the scope of the co-debtor’s liability in the case of multiple debtors. The application of the rule of solidary liability is based on the assumption that individuals whose joint actions inflicted damage must compensate it together. (shrink)

This paper shows that the law, in subtle ways, may set hitherto unrecognized incentives for the adoption of explainable machine learning applications. In doing so, we make two novel contributions. First, on the legal side, we show that to avoid liability, professional actors, such as doctors and managers, may soon be legally compelled to use explainable ML models. We argue that the importance of explainability reaches far beyond data protection law, and crucially influences questions of contractual and tort (...) liability for the use of ML models. To this effect, we conduct two legal case studies, in medical and corporate merger applications of ML. As a second contribution, we discuss the trade-off between accuracy and explainability and demonstrate the effect in a technical case study in the context of spam classification. (shrink)

In this short paper, I shall answer the title’s question first in the context of criminal law and then in the context of tort law. In that latter section, I shall also mention in passing contractual and other forms of civil liability that are strict, although they will not be my principal focus. My conclusions will be that strict liability is never proper as the basis for retributive punishment; that it is a very crude device for achieving (...) deterrence through nonretributive penalties; and that with respect to tort liability, it is best justified as a means of defining insurance categories. (shrink)

In most cases, liability in tort law is all-or-nothing—a defendant is either fully liable or not at all liable for a claimant's loss. By contrast, this paper defends a causal theory of partial liability. I argue that a defendant should be held liable for a claimant's loss only to the degree to which the defendant's wrongdoing contributed to the causing of the loss. I ground this principle in a conception of tort law as a system of (...) corrective justice and use it to critically evaluate different mechanisms for “limiting” liability for consequences of wrongdoing and for “apportioning” liability between multiple wrongdoers. (shrink)

This paper examines moral problems that arise when assigning liability in causally problematic mass exposure tort cases. It examines the relevance of different conceptions of corrective justice for such assignments of liability. It explores an analogy between the expressive role of punishment and the expressive role of tort, and argues that the imposition of liability in causally problematic mass exposure cases can be justified by appeal to expressive considerations.

The American tort system regularly conducts a sort of lottery in which plaintiffs try to name as many defendants in a tort action as they can in order to collect a large judgment from at least one of them. This procedure is encouraged under strict joint and several liability, which permits plaintiffs to recover greater damages from defendants - usually businesses - with less moral culpability for the tort than poorer defendants, who bear greater culpability. In (...) a case involving the Disney Corporation and a negligent amusement park rider, for instance, Disney was forced to pay 86% of the court award to the plaintiff, even though the jury found the company to be only 1% liable for the injury. The legal principle of joint and several liability violates morality in several different ways. Even though the principle appears to be better in the short run for plaintiffs, I will show that it fails not only to satisfy utilitarianism, but compensatory justice as well. Hence, the legal principle of joint and several liability should be eliminated in favor of a better, fairer law, which I will briefly sketch at the end. (shrink)

In ethical terms, intention is widely felt to be the strongest basis for the attribution of personal responsibility for conduct and outcomes. By contrast, in tort law intention is a much less important ground of liability than negligence. This article analyses the meaning of intention in tort law and its relationship to other concepts such as voluntariness, recklessness, motive, and belief. It also discusses difficulties associated with proving intention and other mental states, and the idea of a (...) general principle of tort liability for intention. The key to explaining the relatively minor role of mens rea in tort law is found to lie in the emphasis tort law gives to the interests of victims, and to social values, in constructing its concept of responsibility. This approach also helps to explain the greater importance of mens rea in criminal law. (shrink)

Complex technologies such as Artificial Intelligence (AI) can cause harm, raising the question of who is liable for the harm caused. Research has identified multiple liability gaps (i.e., unsatisfactory outcomes when applying existing liability rules) in legal frameworks. In this paper, the concepts of shared responsibilities and fiduciary duties are explored as avenues to address liability gaps. The development, deployment and use of complex technologies are not clearly distinguishable stages, as often suggested, but are processes of cooperation (...) and co-creation. At the intersections of these stages, shared responsibilities and fiduciary duties of multiple actors can be observed. Although none of the actors have complete control or a complete overview, many actors have some control or influence, and, therefore, responsibilities based on fault, prevention or benefit. Shared responsibilities and fiduciary duties can turn liability gaps into liability overlaps. These concepts could be implemented in tort and contract law by amending existing law (e.g., by assuming that all stakeholders are liable unless they can prove they did not owe a duty of care) and by creating more room for partial liability reflecting partial responsibilities (e.g., a responsibility to signal or identify an issue without a corresponding responsibility to solve that issue). This approach better aligns legal liabilities with responsibilities, increases legal certainty, and increases cooperation and understanding between actors, improving the quality and safety of technologies. However, it may not solve all liability gaps, may have chilling effects on innovation, and may require further detailing through case law. (shrink)

The essence of the moral luck question is whether the responsibility of persons is determined only in light of actions that are within their control or also in light of factors, such as the consequences of their actions, which are beyond their control. Most people seem to have contrasting intuitions regarding this question. On the one hand, there is a common intuition that the responsibility of persons should be judged only in light of what is within their control. On the (...) other hand, there is a strong intuition that the consequences of actions sometimes affect the responsibility of agents even when these consequences depend on factors that are beyond their control. A parallel dilemma is present in the law. Legal rules, particularly criminal law rules and tort rules, often differentiate between agents in light of factors that are beyond their control, and in this sense involve legal luck. Of course, factors beyond the control of persons, including the consequences of their actions, can be significant, with respect to the evaluation of the responsibility of persons for instrumental or epistemic reasons. The question is thus only with respect to the independent significance of factors beyond the control of agents, and particularly the consequences of actions, to the evaluation of the (extent of the) responsibility of agents. Benjamin Zipursky offers an interesting argument in order to support the intuition in favor of moral and legal luck, particularly with regard to consequences, especially the rule according to which the punishment of completed offences is more severe than the punishment of attempts and the rule that tort liability applies only to actions that have caused harm. The aim of this Comment is to evaluate this argument. I will try to consider to what extent Zipursky's explanation merely reiterates the familiar intuition that the normative evaluation of the conduct of persons should be influenced by consequential luck, and to what extent it provides new insights that might appeal also to those who are more forcefully drawn to the contrasting intuition that we should judge people only in light of factors that are within their control. I argue that while Zipursky's suggestions might appeal to those who already share the intuition in favor of (consequential) moral and legal luck, they would not convince those who have doubts regarding moral and legal luck. (shrink)

In this paper I argue that economic theories have never been able to provide a coherent explanation of the causation requirement in tort law. The economic characterization of this requirement faces insurmountable difficulties, because discourse on tort liability cannot be reduced to a cost-benefit analysis without a loss of meaning. More seriously, I try to show that by describing causation in economic terms, economic theories offer an image of the practice in which the participants incur in logical (...) contradictions and develop patterns of inference that are far from intuitive. For this reason, efficiency cannot be the fundamental principle underlying tort law. Finally, I suggest that economic analysis of law can provide a genuine explanation of certain aspects of legal practice if it relinquishes its reductionist claims. (shrink)

This paper postulates that the proper function of tort law is to provide protection from, and redress of, non-consensual invasions of individual rights of person and property. It then proceeds to analyze and criticize, in that context, several theories of the law of unintentional torts including traditional English negligence law and the models of Posner, Fletcher and Epstein. That analysis proceeds in terms of the answers of each theory to a uniform set of questions which must be answered by (...) any theory of the law of unintentional harms. The paper concludes that none of the theories examined is rights-based or, indeed, consistent with the existence of individual rights of person and property.The paper goes on to elucidate a theory of liability which is rights-based. That theory turns out to be variant of traditional English negligence law in which reasonable foreseeability of harm to legally recognized rights or interests is the sole criterion of liability, the burden of precautions on the agent of the harm being explicitly excluded from consideration. (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)

According to the established orthodoxy, the law of private wrongs—especially common law torts—fails to map onto our moral universe. Four objections in particular have caught the imagination of skeptics about the moral foundations of tort law: They purport to cast doubt over the moral appeal of the duty of care element; they target the seemingly inegalitarian objective standard of care; they object to the morally arbitrary elements of factual causation and harm; and they complain about the unnecessary extension of (...) liability under the guise of the proximate cause element. Analyzing these four prevailing arguments concerning the a-moral (and, with regard to some interpretations, anti-moral) character of tort law, I shall seek to show that the normative structure of tort law can, nonetheless, be reconstructed so as to reflect, to an important extent, our considered judgments about basic moral principles. (shrink)

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 collection of contemporary essays by a group of well-known philosophers and legal theorists covers various topics in the philosophy of law, focusing on issues concerning liability in contract, tort and criminal law. The book is divided into four sections. The first provides a conceptual overview of the issues at stake in a philosophical discussion of liability and responsibility. The second, third and fourth sections present, in turn, more detailed explorations of the roles of notions of (...) class='Hi'>liability and responsibility in contracts, torts and punishment. The collection not only presents some of the most challenging work in legal philosophy, but it also demonstrates the interdisciplinary character of the field of philosophy of law, with contributors taking into account recent developments in economics, political science and rational choice theory. This thought-provoking volume will help to shed light on the underexplored ground that lies between law and morals. (shrink)

This article examines problems that may arise when addressing liability resulting from the genetic modification of microbes, animals, and plants. More specifically, it evaluates how uncertainties relating to the outcomes of these biotechnological innovations affect—or may affect—the courts' application of the reasonable foreseeability requirement and, hence, liability under the tort of negligence. The article also examines how concern expressed by society about injuries feared to result from these genetically modified products could have an impact on the way (...) the courts assess reasonable foreseeability in this area. (shrink)

There may be circumstances in which it is morally justifiable intentionally to kill a person who is morally innocent, threatens no one, rationally wishes not to die, and does not consent to be killed. Although the killing would wrong the victim, it might be justified by the necessity of averting some disaster that would otherwise occur. In other instances of permissible killing, however, the justification appeals to more than consequences. It may appeal to the claim that the person to be (...) killed has acted in such a way that to kill him would neither wrong him nor violate his rights, even if he has not consented to be killed or to be subjected to the risk of being killed. In these cases, I will say that the person is liable to be killed. Although I borrow the notion of liability from legal theory, and although much of what I say will be informed by the literature on liability in both tort law and criminal law, my concern in this article is with moral rather than legal liability. (shrink)

This article examines the possible basis for legal liability of researchers who use the Internet in the collection of research data. In particular, it examines the potential legal issues associated with the protocols of ethnographers who use listserv, discussion board, blog, chat room and other sorts of web or Internet-based postings as the source of their data. The author assumes that the forum for participation is legitimate, in that the list, board, blog, chat, etc. is not created or otherwise (...) concocted by the researcher, but involves situations akin to off-line practices where a researcher would be listening to the conversation or watching the behavior of subjects in a public place. Since these practices do not involve direct interview or interaction with or treatment of "human subjects", much of the precedent involving negligence, informed consent, and related issues is not relevant; however, it is reviewed initially for guidance in suggesting the applicable, legal standards of conduct. This article does not discuss the use of the Internet as a collection device, e.g., in online surveys. Issues of legal harm arising from claims in negligence, privacy, and defamation for subsequent disseimination of such postings are evaluated. Although it is concluded that the likelihood for a success of such claims is small, analysis will include steps that researchers can take to ensure that such risk remains negligible. (shrink)

ABSTRACT Persons injured as a result of exposure to toxic or carcinogenic substances are seldom able to recover damages from those who are responsible for the exposure. Tort law requires proof of causation, and causation is often unprovable because of long latency periods, because of the relative infrequency of the injuries and because many of the injuries among the exposed population are the result of other factors. A number of proposals for modifying the legal causation requirement to allow those (...) who create hazardous risks to be held liable for the injuries that materialise are considered and found inadequate. A proposal to treat risk exposure itself as an injury for which compensation under private law is possible is also considered and ultimately found incoherent. The paper concludes by arguing for a public law solution, modelled on criminal law, but providing compensation for victims. (shrink)