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All-or-Nothing, or Something – Proportional Liability in Private Law
Judges and juries often make factual decisions even if the facts are disputed and there is no clear-cut evidence available. Despite this common state of uncertainty, verdicts are thought of as having clear winners and losers––either the plaintiff wins and receives a full remedy, or the defendant wins and the plaintiff gets nothing. In private disputes, factfinders base their binary factual determinations on the preponderance of the evidence. There are, however, several doctrines that allow for partial remedy, discounted by the probability that the facts support the plaintiff’s case, given the available evidence (proportional liability). This Article offers a general theory for proportional liability in private law. It identifies three types of factual uncertainty—mutual uncertainty, unilateral uncertainty, and institutional uncertainty—and shows that legal economists should support proportional liability when the state of uncertainty is shared by the parties and the court (mutual uncertainty), and they should adopt an all-or-nothing rule whenever the information is observable but unverifiable (institutional uncertainty). In cases where one party holds private information (unilateral uncertainty), proportional liability is sometimes, but not always, superior to an all-or-nothing rule.
Journal Article
Enterprise liability and the common law
\"Theories of enterprise liability have, historically, had a significant influence on the development of various aspects of the law of torts. Enterprise liability has impacted upon both statutory and common law rules. Prime examples would include laws on workmen's compensation and products liability. Of late, in a number of jurisdictions, enterprise liability has been a powerful catalyst for change in the employer's responsibilities towards third parties by prompting changes to the law on vicarious liability. The results have been seen most dramatically where the employer's responsibility for the intentional torts of employees is concerned. Recent common law reforms have not been without controversy and have raised difficult and challenging questions about the appropriate scope of an employer's responsibility. In response to this, Douglas Brodie offers a critique of the employer's common law obligations, both in tort and under the law of contract of employment\"-- Provided by publisher.
Book
The Recent Australian Debate About Individual Liability for the Criminal Misconduct of Corporations
When should a director or manager of a company be personally liable because their company has committed a criminal offence? The question is both important and controversial because many of the laws that impose this type of liability (called deemed liability provisions) do so without the need to prove that the director or manager was personally at fault. The question has received much attention recently in Australia because of proposals by the Australian Law Reform Commission to significantly expand the circumstances when this type of liability would be imposed on directors and managers. Following much criticism, the Commission withdrew its proposals and instead called for a wide-ranging review of the effectiveness of individual accountability mechanisms for corporate misconduct – in effect calling for another inquiry. This article outlines the Commission’s proposals and their objectives. It describes the criticisms that were made of the proposals and considers the proposals in the context of prior reviews and principles applying to deemed liability provisions. It is argued that the Commission was right to withdraw its proposals as they did not reflect a proper balancing of the advantages and disadvantages of deemed liability provisions, the proposals were not well drafted, and the formulation of the proposals did not appropriately consider earlier research and inquiries on deemed liability provisions.
Journal Article
State liability in investment treaty arbitration : global constitutional and administrative law in the BIT generation
Today there are more than 2,500 bilateral investment treaties (BITs) around the world. Most of these investment protection treaties offer foreign investors a direct cause of action to claim damages against host-states before international arbitral tribunals. This procedure, together with the requirement of compensation in indirect expropriations and the fair and equitable treatment standard, have transformed the way we think about state liability in international law. We live in the BIT generation, a world where BITs define the scope and conditions according to which states are economically accountable for the consequences of regulatory change and administrative action. Investment arbitration in the BIT generation carries new functions which pose unprecedented normative challenges, such as the arbitral bodies established to resolve investor/state disputes defining the relationship between property rights and the public interest. They also review state action for arbitrariness, and define the proper tests under which that review should proceed. State Liability in Investment Treaty Arbitration is an interdisciplinary work, aimed at academics and practitioners, which focuses on five key dimensions of BIT arbitration. First, it analyses the past practice of state responsibility for injuries to aliens, placing the BIT generation in historical perspective. Second, it develops a descriptive law-and-economics model that explains the proliferation of BITs, and why they are all worded so similarly. Third, it addresses the legitimacy deficits of this new form of dispute settlement, weighing its potential advantages and democratic shortfalls. Fourth, it gives a comparative overview of the universal tension between property rights and the public interest, and the problems and challenges associated with liability grounded in illegal and arbitrary
state action. Finally, it presents a detailed legal study of the current state of BIT jurisprudence regarding indirect expropriations and the fair and equitable treatment clause.
eBook
Bad acts : the racketeering case against the tobacco industry
On January 20, 1999, President Bill Clinton announced in his State of the Union address that the Justice Department was planning to sue the tobacco industry and assigned the task to Attorney General Janet Reno and the Justice Department. This book is the story of that case - the politics, the litigation, the behavior of the industry and its lawyers, the efforts by the Bush Administration to gut the case, and the ultimate victory in court. Bad Acts tells the story, not yet fully revealed, of what was happening behind the scenes at the Justice Department as the case approached victory, when the Bush Administration intervened, with some success, to protect Big Tobacco. The book examines the political influences and interferences of and by Clinton Democrats and George W. Bush Republicans. It is a candid behind-the-scenes account of how the case was put together, how the industry attempted to halt the case, and how it ultimately was won by the Justice Department.
eBook