Under prevailing tort law, an injurer who must choose between Course of Action A, which creates a risk of 500 (there is a probability of .1 that a harm of 5000 will result), and Course of Action B, ...which creates a risk of 400 (there is a probability of .1 that a harm of 4000 will result), and who negligently opts for the former will be held liable for the entire harm of 5000 that materializes. This full liability forces the injurer to pay damages that are five times higher than would be necessary to internalize the risk of 100 that his negligent choice actually creates. This Article argues that tort law should recognize the Offsetting Risks Principle, under which courts would take into account the risks decreased by the wrongdoing as a mitigating liability factor. The injurer in our example would thus be liable for only 1000, which is twenty percent of the harm that actually materialized. This outcome not only differs from the result under prevailing tort law but also diverges from that mandated by a probabilistic recovery principle. Under that principle, if, in our example, the risks of both Course of Actions A and B relate to the same victim, the injurer should be liable for 4600. The failure of tort law to cause injurers to internalize the actual risks created by their negligence, as illustrated by the example above, emanates from the law's disregard for the positive externalities generated by wrongdoings. In our example, the injurer's negligent choice creates two opposite effects: one negative (increasing risks by 500) and one positive (decreasing risks by 400). Because the law imposes liability for the negative effects when harm materializes but ignores the positive effects, the result is that the injurer bears liability for risks that far exceed the actual risks he negligently created. The Offsetting Risks Principle is suitable mainly for those cases in which the injurer must balance the various conflicting interests of his potential victim. It also applies to cases where the injurer must balance the interests of the victim against the interests of third parties or society as a whole. This Article focuses on the Offsetting Risks Principle's potential application in medical malpractice cases. Adopting the Offsetting Risks Principle in such cases and reducing liability in accordance with offsetting risks would result in a huge--and desirable--decrease in the damages awarded in medical malpractice suits. Doctors would then pay for no more than the social harm actually generated by their negligence, practice less defensive medicine, and refrain from overinvesting in precaution. But patients are the main beneficiaries: they would pay less for medical services and receive improved care in return. The apparent problem of undercompensation for patients could, and should, be solved outside the framework of tort law, either by social insurance or by private insurance.
The Migratory Bird Treaty Act (MBTA) contains a very broad ban on harming migratory birds, as well as a strict liability standard for misdemeanor violations. Without further limitation, the MBTA ...would theoretically apply to countless ordinary life activities, such as drìvinga car or having windows on one's home. Naturally, there are due process concerns with such a scenario, so Congress expressly left it to the Department of the Interior to draft more detailed implementing regulations. Unfortunately, the existing regulations fail to adequately address the potential overbreadth of the MBTA's misdemeanor application, forcing the courts to do so on an ad hoc basis. Such individualized legal analyses create the risk of developing bad law as a result of less-than-ideal test cases. This is exactly what took place in United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010), the only appellate case dealing with the MBTA's strict liability standard in the context of industrial harms—the current trend for enforcement—in several decades. In that case, the Tenth Circuit applied a "knew or should have known" standard to an industrial actor causing bird deaths, holding that criminal liability only attaches after the United States Fish and Wildlife Service has directly notified the defendant in writing of the danger his equipment presents to birds. This is a terrible case, as it completely writes the strict liability standard out of the statute. This Article argues that regulations—or even a written enforcement policy—that create prosecutorial limitations to avoid violating due process will prevent courts from struggling to cope with the MBTA's theoretically broad reach, which can result in bad law. It sorts through the historical development of strict liability, especially in the public welfare offense context, and proposes that those engaged in activities where regulation should be foreseen—such as operating oil rigs, as in Apollo Energies—should be held to a higher standard than others. This is in line with the Supreme Court case law justifying strict liability in the face of due process challenges. Ultimately, the Article concludes that such across-the-board line drawing for the MBTA's strict liability provisions would have prevented the Tenth Circuit from deciding Apollo Energies as it did.
Reality Check on Officer Liability Johnson, Lyman; Ricca, Robert
The Business Lawyer,
11/2011, Letnik:
67, Številka:
1
Journal Article, Trade Publication Article
Recenzirano
This article addresses the fiduciary duties of corporate officers. Responding to a critique that recent scholarly analyses of officers depart from reality, it argues that, on a variety of grounds, ...those analyses are more realistic than the critique and provide doctrinal coherence and advance the goal of meaningful executive accountability. The divergent governance functions of directing versus managing are described and it is argued that those disparate roles should matter f or fiduciary duty analysis. No great outbreak of litigation should be expected if officers are held to a stricter duty of care than directors because boards of directors, not courts, likely will resolve the vast majority of disputes concerning officer breaches of duty. The ex ante and ex post roles of fiduciary duties are emphasized, and the need for the Delaware legal community to more fully address more fully officer duties is noted, lest the federal government emerge as the chief regulator of senior management, a role central to corporate governance.
On April 20, 2010, an explosion occurred on the Deepwater Horizon offshore drilling unit resulting in the death of eleven workers, and subsequently a continuous and uncontrolled release of crude oil ...and natural gas from the wellhead for a total of eighty-six days. The Oil Pollution Act of 1990 (OPA) provides a comprehensive liability and compensation scheme by creating strict liability for the responsible party of a vessel or facility from which the oil was released subject to statutory limitations, and very limited applicable defenses. The owner of the Deepwater Horizon and the operator of the Macondo well were designated responsible parties under OPA subjecting them to liability for removal costs and damages. In addition, the Clean Water Act imposes civil and administrative fines on a per-day-per-barrel basis without limitation. Other federal statutes which are used to impose criminal liability are the Migratory Bird Treaty Act, the Endangered Species Act, and the River and Harbors Act of 1899.
This Article begins with a comparative law survey showing that all legal systems do not opt exclusively for fault liability or strict liability in contract law, but often adopt a more nuanced ...approach. This approach includes intermediate solutions such as reversing the burden of proof using a market ("objective") standard of care, distinguishing between different types of contracts, and providing a ft second chance" to breaching parties. Taking this starting point seriously and arguing that it is highly unlikely that all legal systems err, this Article argues that the core question is how and when each liability regime should prevail or how and when the regimes should be combined. It then argues that there is no either-or, but only the question of intelligent combination. When asking how best to combine the regimes, the simple answer is that market expectation, and specifically the ability to compare offers, should be the core criterion. This Article therefore argues that a market function approach is needed. Such an approach answers the question of which factors are most important in which situations and thus helps to shape the combination. Some core criteria are developed in a last, more concrete section.
Le Japon est un des pays qui utilisent fortement l’énergie nucléaire. Pourtant il n’adhère à aucune convention internationale sur la responsabilité nucléaire. La loi sur la réparation des dommages ...nucléaires de 1961 pose des principes fondamentaux sur la responsabilité de l’exploitant nucléaire en cas d’accident nucléaire. Ainsi l’exploitant nucléaire est tenu de réparer les dommages nucléaires même s’il n’a commis aucune faute. Sa responsabilité est illimitée. Mais la garantie financière se limite à 120 milliards de yens. Et la responsabilité est canalisée uniquement sur l’exploitant nucléaire. Après l’accident de Fukushima, le gouvernement a pris de nombreux moyens pour améliorer le fonctionnement de ce système de la réparation des dommages nucléaires. Le Comité de règlement des différends pour indemniser des dommages nucléaires (CRD) a été établi en avril 2011 et il a publié des directives sur l’étendue des dommages réparables à plusieurs reprises. Le Centre de règlement des différends a été établi auprès le CRD en septembre 2011 et il a déjà résolu plus de neuf mille affaires par la médiation.
Private law plays an important and indispensable role in the effort to tackle ship-source oil pollution, in which the Civil Liability Convention (CLC) is the key regime setting out the liability and ...compensation framework for oil spills. In attempting to evaluate the law to determine whether it should be improved, the paper employs a law and economics approach to examine the desirability of strict liability and limitation of liability which are two hallmarks of the CLC. The theoretical framework of economic analysis of accident law is first presented followed by the argument that a single oil spill accident can be viewed as having both unilateral and bilateral features depending on the type of damage. The paper suggests that the available theories in the economic analysis of accident law are not tailor-made to suit marine pollution issues and therefore, in applying the theories to oil spill problems, modifications must be made. Based on the above, it is submitted first that strict liability with certain defences as set out in the CLC is desirable for dealing with oil spills. Limitation of liability should not only focus on whether or not the regime should be retained, but should be considered in relation to different kinds of damage. It is therefore proposed that a two-fold liability regime be established for marine oil spills.
L’énergie nucléaire a toujours suscité la polémique. Alors que certains considèrent qu’une énergie nucléaire « sûre » pourrait contribuer à assurer à la fois une meilleure sécurité des ...approvisionnements énergétiques et une réduction des émissions mondiales de gaz à effet de serre, d’autres lui reprochent plusieurs types de risques et particulièrement les accidents nucléaires, la gestion des déchets nucléaires, la non-prolifération et les attaques terroristes ou même militaires contre les installations nucléaires civiles. En réalité, le retour d’expérience des accidents nucléaires les plus catastrophique de l’histoire, Three Mile Island (États-Unis) en 1979, Tchernobyl (ancienne URSS) en 1986 et Fukushima Daiichi (Japon) en 2011, a montré que des accidents nucléaires graves peuvent avoir des effets divers d’une portée potentiellement considérable, (très souvent transfrontières), à la fois pour les personnes, les biens et pour l’environnement. L’accident de Fukushima a confirmé une fois de plus la nécessité d’améliorer les règles existantes du droit international de l’énergie nucléaire, de manière à mettre en place un régime mondial de responsabilité civile du fait nucléaire, répondant aux préoccupations de tous les États qui pourraient être touchés par ce type d’accident. Le défit aujourd’hui est, donc, degarantir une réparation efficace, équitable et harmonisée des différents types de dommages issus d’un accident survenant dans une installation nucléaire.
Nuclear energy always caused the polemic. Whereas some consider that a “sure” nuclear energy could contribute to ensure at the same time a better safety of the energy supplies and a reduction of the greenhouses gas emissions, others reproach its several types of risks, particularly, the nuclear accidents, the nuclear waste control, the non-proliferation and the terrorist attacks or even armed against civil nuclear installations. Actually, return of the experience of the most catastrophic nuclear accidents in history (Three Mile Island (the United States) in 1979, Tchernobyl (former USSR) in 1986 and FukushimaDaiichi (Japan) in 2011), showed that serious nuclear accidents can have a variety of potentially far-reaching effects (very often transboundary) for people, property and the environment. The Fukushima accident confirmed once again the need to improve the existing rules of international nuclear energy law to put in place a global nuclear liability regime that addresses all of the states that may be affected by a nuclear accident. Today’s challenge is, therefore, to guarantee an efficient, fair and harmonized repair of the different types of damage resulting from an accident occurring in a nuclear installation.
The purpose of this paper is to explore the joint use of regulation and strict liability when firms can take care in both observable and unobservable dimensions and when the firm’s conviction for ...damages is uncertain. Much of the literature concerning joint use regards management of the judgment-proof problem; the take-home result of our paper is that if the harming party can take both observable and unobservable care, then joint use can improve welfare even in the absence of judgment-proofness. This is true even when penalty multipliers are allowed, provided social welfare is negatively related to the firm’s expected liability costs. In fact, use of penalty multipliers further strengthens the case for joint use.
