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Articles 1 - 4 of 4
Full-Text Articles in Law
Abuse Of Rights: The Continental Drug And The Common Law, Anna Di Robilant
Abuse Of Rights: The Continental Drug And The Common Law, Anna Di Robilant
Faculty Scholarship
This article explores a crucial, though often neglected, episode in the history of modern private law: the nineteenth and early twentieth century debate over the concept of “abuse of rights”. In broad terms, the formula evokes the idea of an abusive, because malicious or unreasonable, exercise of an otherwise lawful right. The doctrine was applied in a variety of subfields of private law: property, contract, and labour law. It was conceived as a response to the urgent legal questions posed by the rise of modern industrial society: the limits of workers’ right to strike, the limits of industrial enterprises’ property …
Information And Causation In Tort Law: Generalizing The Learned Hand Test For Causation Cases, Keith N. Hylton
Information And Causation In Tort Law: Generalizing The Learned Hand Test For Causation Cases, Keith N. Hylton
Faculty Scholarship
This paper discusses the economics of causation in tort law, describing precise implications for precautionary incentives when courts are and are not perfectly informed. With precautionary incentives identified, we can ask whether the causation inquiry enhances welfare, and if so under what conditions. Perhaps the most important innovation applies to the Hand Formula. When causation is an issue, the probability of causal intervention should be part of the Hand test, and the generalized Hand test offers a method of distinguishing significant classes of causation cases. I close with implications for the moral significance of causation and for economic analysis of …
The Market In Unmatured Tort Claims: Twenty-Five Years Later, Stephen G. Marks
The Market In Unmatured Tort Claims: Twenty-Five Years Later, Stephen G. Marks
Faculty Scholarship
In an article in 1989 in the Virginia Law Review, Professor Robert Cooter argued for changes in the law that would facilitate the development of a market in unmatured tort claims. An unmatured tort claim is a potential claim that a potential victim has before any injury has occurred. Cooter proposed that potential victims have the right to sell their unmatured tort claims. That is, Cooter proposed that potential victims be allowed to sell their right to sue even before an accident or injury ever occurs. Even twenty-five years later, the proposal remains both bold and imaginative, and yet it …
Exploring The Relationship Between Consent, Assumption Of Risk, And Victim Negligence, Kenneth Simons
Exploring The Relationship Between Consent, Assumption Of Risk, And Victim Negligence, Kenneth Simons
Faculty Scholarship
This chapter analyzes the nature of consensual rationales for precluding tort liability, and explores the relationship between consent to an intentional tort, assumption of risk, and victim negligence. Is consent conceptually and normatively distinguishable from assumption of risk? Yes and no: they differ in some respects, but share a common core. Are they equally valid bases for precluding, and not merely reducing, recovery? Yes: court justifiably invoke consent more often than assumption of risk, not because the doctrines differ in principle, but because of factual differences between the most common scenarios in which each arises. In paradigm consent scenarios, the …