November 22, 2012
Employers' Liability and Workers' Compensation
Ken Oliphant & Gerhard Wagner have published Employers' Liability and Workers' Compensation. The abstract provides:
The European Centre of Tort and Insurance Law (ECTIL) with support by the Institute for European Tort Law embarked already in 2009 on a Comparative Project on Employers' Liability and Workers' Compensation. The study - conducted in English and led by Ken Oliphant (Institute for European Tort Law, Vienna) and Gerhard Wagner (University of Bonn) - will consist of reports from Austria, Australia, Denmark, France, Germany, Italy, Japan, the Netherlands, Poland, Rumania, the United States of America and the United Kingdom. With regard to content the study will focus on the compensation of occupational diseases and accidents. Issues like discrimination, moral or sexual harassment and other damages claims of employees against their employer will be dealt with in the reports for countries where these issues are seen as a part of Employers' Liability (e.g. UK, USA), but not in detail. Major aspects of the reports will be a description of different existing compensation schemes, interactions between Employers' Liability and Workers' Compensation, a comparison of both systems and their respective efficiency.
November 20, 2012
Keating on Tort Theory
Greg Keating (USC) has posted to SSRN Is the Role of Tort to Repair Wrongful Losses?. The abstract provides:
For more than a generation, corrective justice theories of tort have been the principal alternative to economic theories. Corrective justice conceptions claim (as Jules Coleman, a leading corrective justice theorist puts it) that “tort law is best explained by corrective justice” because “at its core tort law seeks to repair wrongful losses.” This thesis encapsulates a powerful critique of the economic theory of tort. That theory is committed to a relentlessly forward-looking conception of the institution. On the economic account, tort is a mechanism for inducing actors whose activities put others at risk of injury to minimize the combined costs of accidents and their prevention. It does so by placing responsibility for repairing past losses on those actors who are the “cheapest cost-avoiders.” The “cheapest cost-avoiders” are those who are in the best position to minimize the combined costs of accidents and their prevention. Because past costs can no longer be affected, this criterion looks forward and only forward. It therefore misconceives the point of tort adjudication. Tort adjudication looks backwards and assigns responsibility for repairing harm wrongly done. Tort adjudication holds tortfeasors liable to those they have wronged for the losses that they have wrongly inflicted because they are responsible for having wrongly inflicted those losses on those victims.
Corrective justice theory thus articulates a powerful critique of the economic theory of tort. That critique, however, spawns its own misconception of tort law. Corrective justice theory puts the cart before the horse and misconceives tort as an essentially remedial institution. Tort is a law of wrongs, not just a law of redress for wrongs. Logically and normatively, obligations of repair are dependent on primary obligations not to wrong others in the first instance. Logically, remedial responsibilities are conditioned on and arise out of failures to discharge primary responsibilities. Normatively, primary responsibilities provide the reason for honoring remedial responsibilities and largely determine the shape of remedial responsibilities. Repairing harm wrongly done is the next best way of complying with an obligation not to do harm wrongly in the first place. Primary and remedial responsibilities form a unity in which primary responsibilities have priority. Corrective justice is thus an essential, but subordinate, aspect of tort. The heart of tort law is constituted by primary obligations to avoid committing various wrongs.
November 19, 2012
Culhane et al. on Informed Consent
John Culhane (Widener), King-Jean Wu (National Taiwan University), Oluyomi Faparusi (Widener), and Eric Juray (Widener) have posted to SSRN Toward a Mature Doctrine of Informed Consent: Lessons from a Comparative Law Analysis. The abstract provides:
Under the doctrine of informed consent, physicians owe patients a duty to disclose to them all material risks of a contemplated treatment or procedure. While the doctrine is generally well accepted in the United States and several other common law countries, it has had a rockier reception in other places. This inconsistency is on its face surprising, given that the doctrine stems from the principle of patient autonomy – a principle to which most countries supposedly subscribe. Unless the patient is in possession of sufficient information, that autonomy may be compromised. But the inconsistency is less puzzling when one considers the difficulty of applying the doctrine to the actual physician-patient relationship.
This article examines the doctrine in four countries that have had different responses to informed consent: the United States; Great Britain; Canada; and Taiwan. This comparison highlights the compromises that each of these jurisdictions has made to the foundational principles of informed consent, and then proposes a way forward by borrowing heavily from the Canadian model.