Digressions 6 Flashcards
What is class action?
An element of the U.S. legal system that allows a group to sue another party.
It is a way to overcome the collective-action problem that exists, if many people are harmed by the actions of one party.
What problems arise in class actions?
The problem in cases like these is often that the small recoveries that can be expected by any individual do not provide an incentive to sue individually, despite the fact that the aggregate recoveries may be very high.
Such a situatio creates an incentive for parties to take disproportionately high risks, because the likelihood that they will be brought to court in case of harm is inefficiently small without class action.
==> This problem leads to externalities.
What is the goal of class action?
Class action is a means to internalize these externalities.
This argument has been explicitly used by the United States Court of Appeals.
“the policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor”.
“Class-action lawsuits are an important and valuable part of the legal system when they permit the fair and efficient resolution of legitimate clames of numerous parties by allowing the claims to be aggregated into a single action against a defendant that has allegedly caused harm”
How is class action handled in swiss law?
Swiss law on the contrary does not allow for class action.
Replacing the cantonal codes of civil procedure, it rejected the introduction of class actions. It has been argued that “it is alien to European legal though to allow somebody to exercise rights on the behalf of a large number of people if these do not participate as parties in the action”
What is the polluter-pays principle?
Makes the party responsible for paying for the damage.
The externalities must be treated as a reciprocal problem
==> the polluter-pays principle ignores the fact that externalities are jointly caused by all involved parties: to avoid harm to a pollute necessarily infllicts harm on the polluter.
The polluter-pays principle is one way to assign rights, because it implies that one party and not the other one has to pay and with adequately set payments the externality gets internalized.
What is the pollutee-pays principle?
Another type of solution: one has the right to pollute and the other pays for reduction in pollution.
How do we evaluate the pollutee-pays principle?
Evalutation of this princple:
From an efficiency point of view, one has no reason to assume that it is better or worse than the polluter-pays principle.
==> If one sticks with efficiency as a normative principle, it makes sense to replace the principle with a “cheapest cost avoider principle”.
The idea behind this principle is that it cannot be assumed in general that both assignments or rights are equally efficient.
With difference in transaction costs however it makes sense to assign the rights in a transaction-costs minimizing way.
For which etchic are the polluter/pollutee principles an example for?
two principles are examples for an anthropocentric ethic
(exclusively concerned with the normative criterion of efficiency)
What is principle of minimal harm also called?
Ahimsa
What is the principle of minimal harm?
Environmental ethics like “deep ecology” make the point that such an ethic as mentioned above is too narrow, because the lake in the example as an ecosystem still gets harmed and the only way to solve this problem is to reduce pollution.
If one includes considerations like this, the polluter pays principle requires a different interpretation, because it is the only one that respects the integrity of nature.
==> From this perspective, it can be seen as a special case of the more general principle of minimal harm or ahimsa that is a fundamental position of Jainism, Hinduism and Buddhism.
What is a “ecosystem function” and what is an example for this?
Pollination services are an example of what is called an “ecosystem function”
Definition: “the capacity of the ecosystem to provide goods and services that satisfy human needs, directly or indirectly”
What is the problem of intergenerational justice?
There is an aspect of the problem of intergenerational justice that makes it different from standard allocation problems between contemporaries.
There is a debate in practical philosophy about the normative status of unborn people that focuses on the question of whether unborn people have the same rights as contemporaries and whether and in what sense contemporaries can harm unborn human beings.
What is the non identity problem?
One obstacle is the so-called non-identity problem:
Argues that apparently trivial changes in one’s plans are likely to change the identity of the future people (for example, because the egg is fertilized by a different sperm)
Thus, changes in political environment are likely to have some influence on the identity of future generations but if this is the case it cannot be argued that anybody is worse off in the future because one is comparing different people.
A pragmatic view would accept this problem as it is and declare the specific identity of a future human being to be morally irrelevant.
==> The only fact that counts one could argue is that future generations will come into existence and that they can profit or can be harmed by present generation’s choices.
This approach implies a major deviation from standard welfarism which builds on the idea that the welfare of actual people is normatively relevant.
Why is it politically questionable to charge high prices for the access to public space?
A public space is a site where democracy becomes possible.
“(Social) space is a (social) product the space thus produced also serves as a tool of though and of action in addition to being a means of production it is also a means of control, and hence of domination, of power”
==> Charging high prices for the access to public space which makes it more difficult for specific groups to access them is therefore politically questionable.
A narrow economic view which focuses on efficiency gains easily loses sight of the bigger context in which the instruments are embedded.
What is a good example for the relationship between democracy and public space?
A good example for the relationship between democracy and public space is the Landesgemeinde (cantonal assembly).
Definition: a Swiss institution where eligible citizens of the canton meet on a certain day in a public space and debate and decide on laws and public expenditures.
