Tort Law - Tort Theory Flashcards
Who gives four possible bases of an action in tort?
Williams
Williams’ four possible bases for action in tort?
Appeasement, justice, deterrence and compensation
What judgment shows the difference between an analytical theory of tort law and a normative theory of tort law?
Lawrence v Fen Tigers
Lord Carnwath view of tort law in Lawrence v Fen
Normative - looking to public welfare
Lord Neuberger view of tort law in Lawrence v Fen
Analytical - tort exists to protect certain rights, so broader policy concerns have nothing to do with it
What is an instrumental theory of tort law?
Tort trying to remedy social problem
What is a non-instrumental theory of tort law?
Tort gives expression to moral principles
What is an analytical theory of tort law?
Interpreting and explaining tort law
What is a normative theory of tort law?
Justifying/reforming tort law
What is the social goal of injury compensation usually combined with?
Deterrence
What is the social goal of injury deterrence best seen as?
Reformist, normative theory of ‘optimal deterrence’
Where is the ‘economic efficiency’ idea most popular for tort?
USA
What judge in particular is a big advocate of economic efficiency?
Judge Richard Posner
Who accused Posner of ‘moral monstrousness’ and why?
Dworkin, because suggested wealth if a value of intrinsic/instrumental worth
What is the underlying principle of economic effiiency
Pareto-efficiency - moving resources to where they are most wanted by looking at society as an aggregate
What academic supports tort theory as being based on a structure of legal rights?
Stevens
Who argued unitary theories to explain tort are ‘wrong-headed’?
Stevens
How did Williams refer to Kantian corrective justice?
‘Ethical compensation’
What academic in particular made corrective justice famous?
Weinrib
Outline of corrective justice theory
First order duty to prohibit invasion of liberty, and second order to repair any invasion by taking from D and giving C
Who compared CJT with distributive justice theory?
Aristotle
Who argued CJT is about making good a wrong with regard to individuals needs?
Aristotle
Who argued DJT is about making good a wrong with regard to EVERY individual’s needs?
Aristotle
What academics support principle of civil recourse
Goldberg and Zipursky
Principle of civil recourse
No right to a remedy, but legal power to demand one - first order duty, but no second order automatically - first need a trial
