Responsibility and the Value of Choice Flashcards
So what does the value of choice account say the aim of tort law is?
‘Tort law is there to make sure that our responsibilities to others depend on the opportunities that we have to affect how things will go for us.’
Recap - why are the first two ideas on responsibility unsuccessful?
Luck - luck always intervenes. We will never say that nobody is to pay for the accident, somebody will always have to live with it substantively.
Agency - Not all people are in the same position. There is great asymmetry between the large harms we could cause and the small gains we could make. Acts can figure in the story of your life without you being attributively or substantively responsible.
What does Perry say about avoidability?
Agency is engaged when the act is avoidable.
But if you could have avoided an outcome you will not necessarily be responsible.
What is Scanlon’s idea on responsibility?
Our substantive responsibilities should depend on the opportunities we have to choose how things will go for us.
The more opportunities you have, the greater responsibility you have.
What would Scanlon say about a defendant who carelessly ran over a claimant?
D will be substantively responsible because he had a choice about how to drive.
(Not because he chose to drive badly - which would be the ‘quality of the will account’).
D had reason to value the opportunity to drive, if not he would not be driving.
Why is the ‘quality of the will’ account faulty?
If an accident occurs because D forgets, we cannot strictly say that they made a choice.
You will still be responsible for missing an interview because you forgot, even though you did not choose to.
Choice can also be coerced by misrepresentation or intimidation.
What are the two aspects of the value of choice account?
- Whether D had the opportunity to affect what would happen by choosing.
- D had reason to value the opportunity to choose in such conditions.
When will an opportunity not be valuable?
i.e. when a gunman threatens you to sell your home.
How does the value of choice account embrace Perry’s idea of avoidability?
Under the value of choice account, if you are well placed to make a choice to avoid something, you can be responsible.
So if you have been threatened to shut up, you do not have reason to value the choice you are being given.
How does the value of choice account explain the result in Mansfield v Weetabix?
Tarlington had no opportunity to find out that he had lost capacity because he had lost capacity.
Mansfield had the opportunity to protect by purchasing insurance and this was an opportunity he had reason to value.
How does the value of choice account show that the model of wrongs is mistaken?
The model of wrongs states that responsibility is based on the choices you make.
Responsibilities are in place in the background before anything bad happens.
How does the value of choice account show us that the model of costs is flawed?
The model of costs makes the cheapest cost-avoider pay.
The value of choice account turns on the choices that individuals have, rather than on the aggregate impact on society.
