In 2019 a new definition for strict liability was introduced to the 'Penal Code' as part of the historic 'Criminal Law Reform Act'. Since this provision, section 26H, was designed to clarify the law, ...this article explores whether it can achieve that goal. By examining the intellectual history and recent judicial practice of strict liability in Singapore, I argue that section 26H succeeds in entrenching the "formal" or "elemental" approach to the concept. This is an advancement over the legal thought of the pre-reform era, in which the compatibility of strict liability with the 'Penal Code' was widely doubted. However, the usefulness of section 26H to the statutory interpretation of specific offences is questionable. Indeed, section 26H must itself be interpreted carefully, or the law may become dangerously unstable. This illustrates the elusiveness of legal clarity and the limits of criminal law reform via codification.
Dutch employers’ liability for workplace accidents is a very interesting topic, not only from a legal perspective, but also from a law and economics one. It is one of the few systems in Europe where ...liability is still based on the fault of the employer, whereas most countries apply a form of strict/no-fault liability or a system of no-fault insurance. It is interesting because the Dutch Civil Code explicitly refers to prevention of work-related losses. Law and economics focuses exactly on the behavioural incentives that are provided by tort liability, instead of on the compensation aspect. In this article, I provide an answer to the question of how Dutch employers’ liability compares to the law and economics desiderata. At first glance, the design of this type of liability (fault liability) is contrary to what law and economics would advocate (strict liability). In addition, the level of care that courts require from the employer seems to be excessively high. Interestingly, both characteristics together result in a situation which, from a law and economics perspective, is almost indistinguishable from the desired strict liability. So, two wrongs may make a right: the ‘wrong’ choice for fault liability combined with the ‘wrong’ level of due care results in the ‘right’ application of (quasi) strict liability. Therefore, at least in theory, employers receive the correct behavioural incentives, which induce them to take the optimal level of care and activity. However, when we subsequently turn our attention to employees, things look less perfect. Law and economics scholars argue that in situations where not only the tortfeasor but also the victim can influence accident probability, both parties should receive behavioural incentives. This implies that a rule of strict liability should be accompanied by a defence of contributory or comparative negligence. The Dutch employer liability regime contains a defence of intent or wilful recklessness on the part of the employee. From a law and economics perspective, this defence provides inadequate incentives to the employee, which is a third wrong. An often-heard response to this line of reasoning is that tort victims will receive behavioural incentives for fear of being involved in an accident in the first place, so the lack of a full defence of contributory or comparative negligence is not problematic. If this is true, then the damages the victims receive do not make them ‘whole’, which introduces a fourth wrong: uncompensated losses. This second set of two wrongs does not make a right, because if victims receive incomplete compensation, tortfeasors do not fully pay for the losses they have caused. This may reduce the behavioural incentives the tortfeasors receive, who may hence not choose optimal levels of care and activity after all.
Resistance to the use of prescribed fire is strong among many private land managers despite the advantages it offers for maintaining fire-adapted ecosystems. Even managers who are aware of the ...benefits of using prescribed fire as a management tool avoid using it, citing potential liability as a major reason for their aversion. Recognizing the importance of prescribed fire for ecosystem management and the constraints current statutory schemes impose on its use, several states in the United States have undertaken prescribed burn statutory reform. The stated purpose of these statutory reforms, often called "right to burn" or "prescribed burning" acts, is to encourage prescribed burning for resource protection, public safety, and land management. Our research assessed the consequences of prescribed burn statutory reform by identifying legal incentives and impediments to prescribed fire application for ecosystem restoration and management, as well as fuel reduction. Specifically, we explored the relationship between prescribed burning laws and decisions made by land managers by exploiting a geographic-based natural experiment to compare landowner-prescribed fire use in contiguous counties with different regulations and legal liability standards. Controlling for potentially confounding variables, we found that private landowners in counties with gross negligence liability standards burn significantly more hectares than those in counties with simple negligence standards (
F
6,72
= 4.16,
P
= 0.046). There was no difference in hectares burned on private land between counties with additional statutorily mandated regulatory requirements and those requiring only a permit to complete a prescribed burn (
F
6,72
= 1.42,
P
= 0.24) or between counties with burn ban exemptions for certified prescribed burn managers and those with no exemptions during burn bans (
F
6,72
= 1.39,
P
= 0.24). Lawmakers attempting to develop prescribed burning statutes to promote the safe use of prescribed fire should consider the benefits of lower legal liability standards in conjunction with regulatory requirements that promote safety for those managing forests and rangelands with fire. Moreover, ecologists and land managers might be better prepared and motivated to educate stakeholder groups who influence prescribed fire policies if they are cognizant of the manner in which policy regulations and liability concerns create legal barriers that inhibit the implementation of effective ecosystem management strategies.
Increasingly courts, including the Supreme Court, rely on ossified versions of the common law to decide cases. This Article demonstrates the risks of this use of the common law. The main contribution ...of the Article is to demonstrate that the traditional narrative about early products law-that manufacturers were not liable for injuries caused by their products because the doctrine of privity granted producers immunity from suit by the ultimate consumers of their goods-is incorrect. Instead, the doctrinal rule was negligence liability for producers of injurious goods across the United States in the nineteenth century. Courts routinely ignored or rejected privity arguments, and contract was not their paradigm for understanding a producer's relationship with users of its products. This analysis has implications for how we view the development of the common law today. And it serves as a warning not to rely on potted histories from casebooks in determining what the common law was in the past.
This paper analyzes liability rules when consumers and third parties/the environment incur harm. Expected harm is convex in the level of output and modeled as a power function. We show that the ...social ranking of liability rules previously established for the case in which only consumers suffer harm (Strict Liability dominates No Liability and Negligence) may be reversed if harm to third parties or the environment is sufficiently important.
•We consider a basic oligopoly model where firms produce a joint and indivisible environmental harm.•We analyze firms decisions of care and output under various liability regimes (strict liability vs ...negligence) associated with alternative damages apportionment rules (per capita vs market share rule), and discuss the rationale for “conservative” vs “non-conventional” competition policies.•An environmental liability law based on the combination of strict liability, the per capita rule, and an “optimal” damages multiplier, is consistent with a conservative competition policy focused on consumers surplus.•A shift to the market share rule, or to a negligence regime, in contrast may be consistent with the adoption of some restrictions to competition with the purpose of better preserving the environment.
In the recent period, more and more voices have called for unconventional competition policies as a way to achieve higher environmental investments from firms. This paper shows that this objective may come into conflict with those of environmental liability laws. We introduce a basic oligopoly model where firms produce a joint and indivisible environmental harm as a by-product of their output. We first analyze the effects on the equilibrium of alternative designs in environmental liability law, secondly, we discuss the rationale for “non-conventional” competition policies, i.e. more concerned with public interest such as the preservation of environment (as well as human health and so on). We study firms decisions of care and output under various liability regimes (strict liability vs negligence) associated with alternative damages apportionment rules (per capita vs market share rule), and in some cases with damages multipliers. We find that basing an environmental liability law on the combination of strict liability, the per capita rule, and an “optimal” damages multiplier, is consistent with a conservative competition policy, focused on consumers surplus, since, weakening firms’ market power also increases aggregate expenditures in environment preservation and social welfare. In contrast, a shift to the market share rule, or to a negligence regime, may be consistent with a restriction of competition, since firms’ entry may instead lead to a decrease in aggregate environmental expenditures and losses of social welfare. Nevertheless the fine tuning of the policy requires specific information from a Competition Authority, which we discuss as well.
As the nature of medical devices is rapidly changing, the legal and ethical questions around medical devices are becoming ever more complex. This volume analyses the current issues and controversies ...around patient privacy, innovation, and new regulatory laws in the US and EU.
On the strict liability view, excusably ignorant agents must cover all the wrongful costs they have inadvertently brought onto others, although it is undisputed that they are not at fault. On the ...fault liability view, victims need not be compensated by excusably ignorant harmers. To some, both views appear harsh. Under fault liability, those who cause harm are seen as getting off scot-free while victims suffer. Under strict liability, agents are viewed as being burdened without any fault of their own. In response to a seemingly intractable conflict between competing theories, some have called for compromise. Caney (Crit Rev Int Soc Polit Philos 13(1):210, 2010) has proposed a “modified strict liability principle” which was further developed by Bell (Monist 94(3):391–411, 2011). The principle’s revision is promising because it gives substantive reason for why and how middle ground should be achieved. In this paper, I assess this proposal and the prospects for mediating between strict and fault liability more generally. Specifically, I (1) introduce concepts, (2) present Bell’s principle of limited liability, (3) critique it, and (4) explore general avenues for finding middle ground between strict and fault liability.
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