Tort Liability Rules Research Articles

The European Commission's approach to extra-contractual liability and AI – An evaluation of the AI liability directive and the revised product liability directive

The European Commission published two proposals that aim to adapt (tort) liability rules to the digital age, the circular economy and the impact of the global value chain. The ‘AI Liability Directive’ contains rules on the disclosure of information and the alleviation of the burden of proof in relation to damage caused by AI systems. The ‘revised Product Liability Directive’ substantially modifies the current product liability regime by broadening the scope, integrating new circumstances to assess the product's defectiveness and introducing provisions regarding presumptions of defectiveness and causation. In this article, we evaluate how both proposals provide some answers to major technological developments – in particular AI – in view of the issues they raise as identified in the legal literature. To do so, we also provide a clear understanding of the major provisions in both proposals, supported by visuals. Although we welcome both proposals for several reasons outlined in the article, different unclarities and inconsistencies need to be resolved. These inter alia relate to the unclarity of terms, the position of claimants, the uncertain interaction with other supranational initiatives and the many interpretation issues with regard to the fault-based liability regime. A more fundamental objection relates to the choice of the revised Product Liability Directive to capture all liability issues with AI systems, which comes at the cost of losing the connection to ‘product’ as a grounding concept. Our findings can be used by policymakers in further adapting and refining both proposals to the digital reality.

I (Won’t) See You in Court Alternative Dispute Resolution for Medical Liability Conflicts: Examples from Europe

In many jurisdictions, courts and the related tort liability rules have failed to adequately address conflicts arising from healthcare delivery that has caused harm. The litigation model – the classic model used to deal with medical liability – must be, if not replaced, at least supplemented by another model, and alternative dispute resolution is best suited to this task. Because conflicts are resolved in a less adversarial environment than a courtroom and led by people with knowledge of both medicine and law, alternative dispute resolution promotes a congenial procedure, is faster and cheaper than traditional litigation and can provide more satisfactory outcomes for all parties. This paper reviews some of the failures of litigation as a means of resolving disputes related to medical liability and considers how alternative dispute resolution methods can address these failures, providing some examples from civil law jurisdictions in Europe. alternative dispute resolution, doctor-patient relationship, litigation, medical liability Motsclés: résolution alternative des conflits, relation médecin-patient, contentieux, responsabilité médicale Schlüsselwörter: alternative Streitbeilegung, Arzt-Patient-Beziehung, Gerichtsverfahren, Arzthaftung

Does the EU's Drive for Private Enforcement of Competition Law Have a Coherent Purpose?

The Competition Laws of the European Union (‘EU’) have been a major influence on countless jurisdictions around the world, but their strength as a public enforcement regime have always contrasted with a perceived absence of private enforcement. Private parties cannot bring an action for damages or injunctive relief before EU courts. They can only make a complaint to the European Commission or National Competition Authority, to investigate an infringement of competition law, on their behalf. Therefore, a party’s ability to recover damages falls on the national tort and civil liability rules of each Member State. Although most European legal systems can broadly be described as belonging to the civil law tradition, there are significant differences in procedure and legal culture when it comes to recovering damages. It is also important to remember that the EU has continued to grow in the last fifteen years, with the accession of ten new Member States in 2004, and a further three between 2007 and 2013. These include states that have made a rapid transition from centrally planned economies and Communist-era legal systems.

The Condition of Fault in Private Enforcement of Competition Law – a Comparative Analysis of U.S. v. Polish and European Approach

The purpose of the Polish Act on Claims for Damages for Remedying the Damage Caused by Infringements of Competition Law, based on and implementing EU law – the Damages Directive, was to enable undertakings to effectively use private enforcement of their damages claims from competition law offenders. Infringement of competition law is classified as a tort according to the said Act on Claims. Therefore, the Act on Claims refers to tort liability rules. The conditions of classic tort liability in domestic law do not have exactly the same dogmatic meaning and scope as the conditions of public or private liability for the infringements of domestic and EU competition law. In practice, their application by national courts may rise many questions regarding conformity between domestic and EU law. This paper aims to analyse one of the key conditions of tort liability, that is, the fault of both the undertaking – the offenders, as well as the fault of their governing bodies and officers. If one were to understand the notion of fault within the limits laid down by civil law, and follow the literal wording of the Polish Civil Code’s provisions referring to the fault condition, the efficiency of private enforcement of damage claims arising from infringements of competition law would be doubtful. Therefore, the aim of this paper is to provide the readers with such an interpretation of the notion of fault, as a condition of liability of undertakings, that the legislative purpose of the Act on Claims is achieved and that the principles of efficiency and equivalence of the EU law are observed. In order to present a comprehensive picture, this paper will also discuss the case law of the CJEU concerning ‘anti-trust fault’, accompanied by a comparative analysis of the German and French approach to the fault condition as well as United States antitrust laws in the same area.

인공지능과 불법행위책임 법리

인공지능과 불법행위책임 법리

A Model for Tort Liability in a World of Driverless Cars: Establishing a Framework for the Upcoming Technology

The development of driving support and cruise assist systems in the automotive industry has been astonishing, accelerating dramatically in the last ten years: since the first DARPA Urban Challenge field tests have multiplied in the US – in California alone, there are currently 39 companies testing self-driving cars – and the once remote prospect of “driverless” vehicles becoming commercially available (coming to market) (in the next future) might not be so far from reality. A broad range of scientific studies suggests the implementation of fully automated driving systems may come soon. Highly Automated Vehicles (HAVs) are likely to profoundly transform our social habits, and to revolutionize our way of interacting with the surrounding environment; in addition, legal scholars have already outlined how automated vehicles create a multi-level challenge in terms of regulation, capable of impacting on different areas of the law. One of the areas where research is much needed is tort liability: in addressing the regulation of accidents caused by automated cars, jurists must assess whether tort liability rules – as they are currently shaped – are suited to govern the “car minus driver” complexity, while simultaneously holding on to their theoretical basis. Whether the current framework proves itself to be inadequate and irreparably “out of tune” with the new circulation dynamics, the only alternative will be to amend or renew it. In light of these considerations, our aim is to present a hypothetical system for liability arising from road accidents caused by driverless cars. This model should be interpreted as a theoretical guideline, which must be adapted and declined in accordance with the specific attributes entailed within each legal system. Consistently with this premise, the article is outlined as such: in Part I we set out (and argue in favour of) some assumptions on which analysis rests. The main postulates that we embrace are that: a) we will ultimately reach a degree of technology that is capable of entirely substituting the human driver on the road; b) a fully automated driving system will be able to manage the “behaviour” of the vehicle safer than its “organic” counterparty; and c) the most promising strategy in addressing the HAVs regulation is to focus primarily on investigating the risks involved in the circulation of “totally” automated cars – where the human driver has no role – rather than addressing already existent (or forthcoming) intermediate support technologies. In Part II, we present the main options available to lawmakers in allocating liability for road accidents caused by HAVs. Traditionally, four leading “players” have been traditionally considered – in the academic debate as well as in the regulatory proposals enacted by governmental and independent bodies – “potentially responsible” in case of road accidents involving HAVs: the driver of the car; its owner; the government (or, widely speaking, the general public) and the manufacturer of the vehicle: after analysing each potential figure, we conclude that the manufacturer is the most appropriate figure to be held liable in the case of road accident involving driverless cars. Part III of the article investigates, on the basis of the background established in Part II, the most widely preferred solutions proposed to regulate a hypothetical liability system for manufacturers: on one hand, we consider the role that rules on product liability can play, devoting our attention both to the EU and to the US regulation; on the other hand, we evaluate the impact of different strict liability options. In particular, as for the latter, we then proceed to a specific investigation of the hypothetical system proposed by Kenneth Abraham and Robert Rabin in their article “Automated Vehicles And Manufacturer Responsibility For Accidents: A New Legal Regime For A New Era” (2017). In Part IV, after “laying down the ground” through the analysis of previous solutions for regulating tort liability in accidents caused by Highly Automated Vehicles, and after underlining how none of them seems entirely satisfactory, we present our proposal for allocating risks in the driverless car world. We will illustrate, in particular, how a “two-steps” system – operating through a negligence assessment and a reward fund – represents an optimal solution to mediate amongst the conflicting needs in the regulation of driverless vehicles. In Part V, finally, we draw some Conclusions on the basis of the various aspects addressed in our analysis, and present some alternatives we considered (and excluded) in developing our system.

Coexistence regulations and agriculture production: A case study of five Bt maize producers in Portugal

In 1998, Genetically Modified (GM) maize entered European Agriculture. After the publication of the European Commission's guidelines on coexistence in 2003, Portugal developed ex-ante regulatory and ex-post tort liability rules on the coexistence of GM and non-GM maize crops. There is an on-going debate on the extent to which the coexistence policies affect adoption. In this study we measure the costs and benefits of planting GM maize as a member of a cooperative. All group members achieved a higher gross margin by planting GM maize rather than non-GM maize on their farms. Group members did not face any ex-post liability costs and had zero ex-ante regulatory costs as they could easily internalize the ex-ante coexistence regulations. The results show that coexistence regulations such as informing neighbors or keeping minimum distances do not necessarily lead to increased production costs provided they are flexible enough.

Mark A. Pollack and Gregory C. Shaffer. When Cooperation Fails: The International Law and Politics of Genetically Modified Foods

This book presents an engaging and thorough study of a seemingly intractable international trade dispute, primarily between the United States and Europe, over the dissemination of engineered foods. The United States and several other countries have increasingly approved transgenic (also known as genetically modified or GM) foods for public consumption, while the European Community (EC) has strongly resisted the introduction of this new technology. From 1998 to 2004, the EC imposed a moratorium on approvals for the marketing of transgenic foods in the EC. It continues to approve new marketing requests desultorily and to pursue an effective moratorium on the cultivation of transgenic species today, despite losing a challenge before the WTO Dispute Settlement Body brought by the United States. The multiple layers of this dispute provide the basis for an edifying study of the causes, dynamics, and consequences of international regulatory conflict. The United States and Europe have demonstrated unequal levels of trust in corporate ethics, the government's regulatory rigour, and the completeness and accuracy of scientific information on the health and environmental consequences of GM foods. Differing tort liability rules also provide dissimilar incentives for agribusinesses in the United States and Europe to take strong precautions against any health, safety, or environmental risks posed by their products or production methods. Different media events relating to food safety and technology have affected cultural expectations about biotechnology in the two regions. There are, moreover, multiple treaty and institutional regimes mediating the dispute, including inter alia the World Trade Organization (WTO), the Convention on Biological Diversity and Cartagena Protocol on Biosafety, the World Health Organization, the Food and Agriculture Organization, and the Codex Alimentarius Commission (formed by the WHO and �

Intent in Tort Law

This paper, prepared for the 2009 Monsanto Lecture in Tort Jurisprudence, explains intent standards in tort law on the basis of the incentive effects of tort liability rules. Intent rules serve a regulatory function by internalizing costs optimally. The intent standard for battery internalizes costs in a manner that discourages socially harmful acts and at the same time avoids discouraging socially beneficial activity. The intent standard for assault is more difficult to satisfy than that for battery because it is designed to provide a subsidy of a sort to the speech that is often intermixed with potentially threatening conduct. In addition to the optimal internalization goal, transaction costs play a role in the specification of intent requirements. The subtle difference between the intent requirements for trespass and battery can be explained on the basis of transaction costs.

Bilateral Accidents with Intrinsically Interdependent Costs of Precaution

The standard economic model of bilateral precaution postulates an interdependency between the care taken by injurers and victims that operates through the effects of each on the expected accident loss. This paper considers situations in which each party's precaution affects not only expected accident loss, but also directly affects the other party's cost of taking precaution. Generalizing the economic model of tort law in this way allows for a more complete analysis of when standard tort rules can and cannot induce optimal precaution. When this additional externality is introduced into a model of unilateral harm (where all accident losses are borne by the victim), none of the standard tort liability rules induces socially optimal behavior by both parties. Moreover, under a contributory negligence rule, the only equilibrium is in mixed strategies; this gives rise to the possibility of litigation in equilibrium. A 'tort-like' liability rule that induces socially optimal behavior by both parties is then characterized; this involves a payment by victims to non-negligent injurers whenever an accident occurs. The model is then extended to consider the case of bilateral harm (where both parties suffer accident losses). It is shown that, as long as both parties can sue to recover their accident losses, all negligence-based tort rules lead to socially optimal behavior by both parties.

Deciphering the Chemical Soup: Using Public Nuisance to Compel Chemical Testing

The problem of toxic ignorance plagues modern society. On a daily basis, each of us is exposed to hundreds of chemicals, the vast majority of which have been subject to little or no testing to determine whether they are toxic to humans or the environment. Many of these chemicals may turn out to be harmless. Some, however, may cause cancer, reproductive defects, and other harms. In toto, chemicals are believed to be responsible for tens of thousands of deaths per year. The problem of toxic ignorance is the rational response of chemical manufacturers to marketplace incentives, tort liability rules, and chemical regulatory mechanisms. To address the systematic failure of manufacturers and distributors to test chemical substances, this Article proposes the recognition of a new type of public nuisance to compel chemical testing. In contrast to conventional toxic tort litigation, which requires a showing of physical injury, the failure to test itself would constitute a public nuisance. Inadequate testing puts the public health at risk, and the resultant lack of information undermines the ability of governments and individuals to protect public health. In addition to explaining the basis for applying public nuisance doctrine to the failure to test, the Article also examines practical considerations relating to how courts would enforce the duty to conduct testing.

Negative Liability

Negative and positive externalities pose symmetrical problems to social welfare. The law internalizes negative externalities by providing general tort liability rules. According to such rules, those who cause harm to others should pay compensation. In theory, in the presence of positive externalities, negative liability should apply: those who produce benefits should be paid a compensatory award by the gainers. Nevertheless, the legal system does not display such general negative‐liability rules. Rather, it tackles the problem of internalizing positive externalities by implementing a set of different and often indirect solutions. My explanation for this asymmetry in legal remedies rests on three features of a negative‐liability regime, relating to intent, incentives, and evidence. These features explain the scope and design of restitution rules, liability for nonfeasance, and other mechanisms for the internalization of positive externalities.

Victim or injurer, small car or SUV: Tort liability rules under role-type uncertainty

In this paper we modify the standard tort model by introducing role-type uncertainty. That is, we assume that neither party knows in advance whether she will be the victim or the injurer when an accident occurs. When the standards of care of the two parties are set at the socially optimal levels, only pure comparative negligence and the equal division rule guarantee efficiency, while the rules of simple negligence, contributory negligence, and comparative negligence with fixed division (other than a 50:50 split) may produce inefficient equilibria. Since pure comparative negligence splits liability between negligent parties according to each party's degree of fault, it makes the accident loss division independent of one's role-type. This produces its efficiency advantage. We extend the model to the choice of vehicle size, as a factor determining who will be the injurer and who the victim in motor vehicle collisions. In the extension we analyze various standard negligence-based liability rules, and tax rules, as instruments to mitigate inefficiency resulting from the vehicle size “arms race.” We also examine two strict liability rules, one of which incorporates a comparative negligence feature; this rule prevents inefficiency from both role-type uncertainty and from the “arms race.”

A Note on the Equivalence Between Contractual and Tort Liability Rules

The aim of this paper is to conciliate some conclusions of the economic theories of breach of contract and tort law. The main result is that the two efficient alternatives that tort law identifies (negligence rule and strict liability with a defense of contributory negligence) are mirrored by two efficient ways of defining contract damages. The first consists of forcing the debtor to pay expectation damages but limiting the level of the creditor's reliance (rule of damage mitigation). The second consists of obliging the debtor to pay expectation damages only when his breach of contract implies negligence, otherwise using restitution remedies (doctrines of impracticability and force majeure).

Public Policy Implications of Liability Regimes for Injuries Caused by Persons with Alzheimer's Disease

People in the United States and the developed world are living longer than ever before. While gains in the average life expectancy have been modest, these greatly underestimate the growth of the elderly population. Most of this elderly population is healthier than comparable populations in the past and they actively participate in everyday life much more than people of comparable age in decades past. The amelioration of many of the diseases of age has accentuated the problems of the chronic diseases for which there are no effective treatments. Perhaps the most devastating of these is Alzheimer's disease, a progressive dementia leading to incapacity and death. This article discusses the public policy implications of tort liability rules for persons with Alzheimer's disease (PWD) who injure their caregivers or member of the general public, and the potential liability of their caregivers for not preventing injuries to the general public. The analysis is rooted in preventive law and therapeutic jurisprudence concerns, rather than advocacy for either PWDs or their victims. The objective is to identify the proper balance between tort liability, immunity, and non-tort approaches such as public health reporting and management strategies. This recognizes that expanding liability will increase the pressure on insurers and families to limit freedom of PWDs, while limits on liability may leave deserving persons uncompensated and create a public backlash that will drive unnecessarily broad or harsh restrictions of PWDs. Most troublingly, the tort doctrine that once a duty is assumed, it must be carried out non-negligently, can create perverse incentives: family caregivers may have no legal duty to prevent PWDs under their care to stop driving, but become liability for tying to stop them and not succeeding. This article reviews the history of the applicable doctrines and the current trends, but recognizes that jurisdictions vary widely and that it is uncertain which approach, if any in current use, is the best. The author proposes modifying the tort law regime with public health and preventive law strategies. Most importantly, the author wants to encourage further study of these problems and the collection and analysis of empirical information on the impact of tort law on the lives of PWDs, their caregivers, and the people they interact with in society.

A simple model of efficient tort liability rules

We present a simple model of tort liability in which precaution is a binary choice, and, if any party takes precaution, the probability of accidents is zero. We compare and contrast our model to other models in which precaution is a continuous variable. Our paper provides easy characterizations of the efficiency properties of a number of real and hypothetical liability rules, including no liability, Learned Hand negligence, negligence with contributory negligence as a defense, Calabresi and Hirschoff’s reverse Hand, Galena, Brown’s relative negligence, strict liability, and others. In a mathematical appendix we extend the model and derive efficiency propositions for dichotomous-action, multidefendant liability rules of various types: simple (in which one party pays 100% of accident costs); comparative negligence (in which accident costs may be spread among two or more parties); and punitive damages (in which some parties may pay more than 100% of accident costs).

Development Risks, Strict Liability, and the Insurability of Industrial Hazards

The economic analysis of accident law is a success story of Law and Economics: theoretical research has increased the knowledge of efficient tort liability rules and insurance, and the results have been of practical importance in the legal development. Nonetheless, the analysis fits poorly with many serious industrial hazards of our time, such as nuclear melt-downs, widely spread chemical pollution, sickness due to additives in food, etc. One reason is that the liable party may become insolvent and/or the risk may be uninsurable. Reasons for uninsurability are potentially very large claims or great uncertainty about the accident risk. A major problem is that new risks cannot be estimated with any accuracy, either empirically or technically. Therefore, compensation and prevention are inefficient.

Unifying Remedies: Property Rules, Liability Rules, and Startling Rules

Imagine that B complains about pollution spewing forth from a factory owned by her neighbor, A. A generation of law students has now learned that ZTs possible remedies traverse the boundaries normally drawn between legal subject areas, much as the previous generation of lawyers learned to lower the divide between law and equity. The educational watershed was surely Calabresi and Melamed's justly celebrated article of twenty-five years ago, suggesting a theory of remedies and concentrating on what it called property rules and tort liability rules.1 By focusing on (and moving between) property rights, damage awards, and private bargains around these rights and awards, Calabresi and Melamed vaporized the inherited barriers between private law rights and remedies. In retrospect, that article is at least as interesting for what it missed as for what it wrought. Readers of law reviews know that a good deal of attention had been paid to the question of when judges should assign property rights or liability awards, and Calabresi and Melamed can be said to have anticipated and initiated that inquiry?which I largely avoid in the present Essay.2 Some readers also know that Calabresi and Melamed might be described as having produced something less than a theory of remedies?if grand implies completeness?because subsequent innovators have shown remedies not anticipated twenty-five years ago. My aim here is, first, to learn about

Insurability of Hazardous Materials Activities

Insurance is essential to technologic advance and also serves other important social functions. "Insurance market failures" must therefore be evaluated so that appropriate remedial actions can be taken by private insurers, and in some instances, by government. The recent insurance crisis for companies producing and using hazardous materials is examined, with particular attention given to six factors: new tort liability rules, judicial interpretation of insurance contracts, declining interest rates, reluctant reinsurers, government policies based on "new federalism" concepts and inadequate attention to risk analysis. The importance of improving risk analysis techniques to promote their use by insurers is determined to be the fundamental reform needed to restore the private insurance function.

Indeterminate Risk and Tort Reform: Comment on Calabresi and Klevorick

IN collaboration with coauthor Alvin Klevorick, Guido Calabresi has extended his earlier analysis of negligence and strict liability rules' to take into account the temporal dimension in product cases. More specifically they ask whether liability ought to be based on a finding of defect as viewed from time of trial as contrasted with time of product sale. Calabresi and Klevorick engage in this enterprise at a time when the tort system (and its regulatory cousins, including the Environmental Protection Agency and Occupational Safety and Health Administration) are increasingly strained by scientific uncertainty about health and safety risks, such as DES, Agent Orange, asbestos, toxic wastes, and radiation poisoning. Of course, it is just such cases-in particular, those involving chemical and toxic substances-that most starkly pose issues of whether after-acquired information about health risks or technological advances ought to influence tort liability rules. Hence the Calabresi-Klevorick analysis could hardly be more timely. While the authors do not purport to derive a best approach from their multifaceted analysis of liability rules, they detect a discernible movement from a liability system based on case-by-case determinations of unreasonableness (ex ante risk-benefit analysis under the Learned Hand formula) to two forms of nonfault liability: category-wide strict liability and ex post risk-benefit analysis. Without counting cases, I will question whether such a movement is in fact occurring. Recent developments in the two most influential product liability jurisdictions-