Tort Law - Tort Theory

Question 1

Who gives four possible bases of an action in tort?

Answer 1

Williams

Question 2

Williams’ four possible bases for action in tort?

Answer 2

Appeasement, justice, deterrence and compensation

Question 3

What judgment shows the difference between an analytical theory of tort law and a normative theory of tort law?

Answer 3

Lawrence v Fen Tigers

Question 4

Lord Carnwath view of tort law in Lawrence v Fen

Answer 4

Normative - looking to public welfare

Question 5

Lord Neuberger view of tort law in Lawrence v Fen

Answer 5

Analytical - tort exists to protect certain rights, so broader policy concerns have nothing to do with it

Question 6

What is an instrumental theory of tort law?

Answer 6

Tort trying to remedy social problem

Question 7

What is a non-instrumental theory of tort law?

Answer 7

Tort gives expression to moral principles

Question 8

What is an analytical theory of tort law?

Answer 8

Interpreting and explaining tort law

Question 9

What is a normative theory of tort law?

Answer 9

Justifying/reforming tort law

Question 10

What is the social goal of injury compensation usually combined with?

Answer 10

Deterrence

Question 11

What is the social goal of injury deterrence best seen as?

Answer 11

Reformist, normative theory of ‘optimal deterrence’

Question 12

Where is the ‘economic efficiency’ idea most popular for tort?

Answer 12

USA

Question 13

What judge in particular is a big advocate of economic efficiency?

Answer 13

Judge Richard Posner

Question 14

Who accused Posner of ‘moral monstrousness’ and why?

Answer 14

Dworkin, because suggested wealth if a value of intrinsic/instrumental worth

Question 15

What is the underlying principle of economic effiiency

Answer 15

Pareto-efficiency - moving resources to where they are most wanted by looking at society as an aggregate

Question 16

What academic supports tort theory as being based on a structure of legal rights?

Answer 16

Stevens

Question 17

Who argued unitary theories to explain tort are ‘wrong-headed’?

Answer 17

Stevens

Question 18

How did Williams refer to Kantian corrective justice?

Answer 18

‘Ethical compensation’

Question 19

What academic in particular made corrective justice famous?

Answer 19

Weinrib

Question 20

Outline of corrective justice theory

Answer 20

First order duty to prohibit invasion of liberty, and second order to repair any invasion by taking from D and giving C

Question 21

Who compared CJT with distributive justice theory?

Answer 21

Aristotle

Question 22

Who argued CJT is about making good a wrong with regard to individuals needs?

Answer 22

Aristotle

Question 23

Who argued DJT is about making good a wrong with regard to EVERY individual’s needs?

Answer 23

Aristotle

Question 24

What academics support principle of civil recourse

Answer 24

Goldberg and Zipursky

Question 25

Principle of civil recourse

Answer 25

No right to a remedy, but legal power to demand one - first order duty, but no second order automatically - first need a trial