TORTS & PRODUCTS LIABILITY LAW eJOURNAL
"Legal Nature and Functions of Damage Reparation: Sanction-Based and Duty-Based Understanding"
Rechtstheorie, Vol. 44, No. 3, 2013, pp. 395-413
LUKA BURAZIN, University of Zagreb, Faculty of Law
In contemporary legal theory, damage reparation is, by its legal nature, widely believed to be a form of sanction. This view can be dubbed the so-called sanction-based understanding of damage reparation. It has its source in the Roman law of delict and is greatly inspired by natural law writers, such as H. Grotius and S. Pufendorf. On the other hand, the underlying function of damage reparation is viewed as restitutive. However, by defining damage reparation as a sanction by its legal nature, damage reparation is being oriented towards injurers, while by defining its underlying function as restitutive, it is, prima facie, being oriented towards the injured party. The difference in orientation of damage reparation with regard to the determination of its legal nature and underlying function points to an inconsistency of the traditional jurisprudential explanation of damage reparation. Moreover, this difference is at odds with the principle of legal coordination as an essential feature of tort law relationships, which also makes the traditional jurisprudential explanation of damage reparation incoherent. Taking into account both the importance that functions have in providing justification for legal institutions and the principle of legal coordination as an essential feature of tort law relationships, one can infer that different orientations of damage reparation are the consequence of an inadequate sanction-based understanding of the legal nature of damage reparation. The sanction-based understanding is inadequate for several other important reasons as well. This calls for the refutation of the sanction-based understanding and the endorsement of a new viewpoint on the legal nature of damage reparation which would allow for a consistent and coherent theoretical explanation of the connection between the legal nature and underlying function of damage reparation. This view can be dubbed a duty-based understanding of damage reparation.
"Failure to Warn: Facing Up to the Real Impact of Pharmaceutical Marketing on the Physician's Decision to Prescribe"
Tulsa Law Review, Fall 2014
KATHERINE TRAVERSE VUKADIN, Texas Southern University - Thurgood Marshall School of Law
Pharmaceutical side effects cause more than 100,000 deaths per year. Because pharmaceuticals pose serious risks, the Food and Drug Administration carefully vets the written warnings that physicians receive about each drug. But alongside these official warnings, attractive pharmaceutical representatives offer slick sales pitches in what amounts to a billion-dollar campaign aimed at influencing the physician’s judgment.
Pharmaceutical representatives are known to downplay the package insert’s warnings. Based on social science research, the marketing operates at a subconscious level, so targeted physicians are often unaware of its surreptitious effects. Nonetheless, pharmaceutical company defendants in failure-to-warn lawsuits can often obtain summary judgment based purely on the package insert, while the pervasive — and effective — warning-diluting marketing information is ignored.
This article proposes that the failure-to-warn inquiry face up to pharmaceutical marketing’s potent role in many prescribing decisions. Courts assessing a warning’s adequacy cannot stop at the package insert but must consider the warning-diluting marketing information as well. And when causation is the question, the physician’s testimony should not be conclusive as to the marketing information’s effects. Failure-to-warn jurisprudence should stop relying on empty paper compliance and recognize present-day pharmaceutical marketing as a compelling and driving force in the decision to prescribe.
"Unjust Enrichment and Restitution in Singapore: Where Now and Where Next?"
Singapore Journal of Legal Studies, p. 331, December 2013
RACHEL LEOW, National University of Singapore (NUS)
TIMOTHY LIAU, National University of Singapore (NUS) - Faculty of Law
The law of unjust enrichment and restitution is rife with academic debate, and the intense controversy surrounding it poses much headache for the uninitiated. Furthermore, the current shape and continued development of the law of unjust enrichment is the product of an ongoing conversation between academic commentators and courts, adding to the complexity of the field. In the first part of this paper, we aim to induct newcomers to the field by setting out four of the main academic debates. We then assess the present position of Singapore law on these debates. In the second part, we evaluate the Court of Appeal’s recent description of unjust enrichment as a common law strict liability cause of action which is claimant-sided and focuses on the claimant’s loss in AnnaWee. We argue that this description is too blunt, and that these broad generalisations should not be interpreted as drawing any definitive conceptual boundaries that might unduly hamstring the future development of the law of unjust enrichment.
"Equitable Accessorial and Recipient Liability in Singapore"
Singapore Journal of Legal Studies, p. 361, December 2013
PAULINE RIDGE, Australian National University - ANU College of Law
This article considers three possible directions for the development of equitable accessorial and recipient liability in Singapore. These are suggested by leading cases in Singapore, Hong Kong and Australia concerning recipient liability. The first direction is closest to the status quo. It involves a contextual inquiry into dishonesty or unconscionability and exceptionally allows constructive notice to suffice for recipient liability. The second possibility is to treat the two forms of liability as involving the same participatory liability for breach of trust or fiduciary duty. The third possible direction is to maintain a distinction between the two forms of liability and to minimise the operation of recipient liability where there is a concurrent common lawclaim. The final part of the article considers whether it is possible to achieve autochthony in this area of law, given the various non-legal considerations that may influence the direction taken.
"Occupiers' Liability after See Toh: Change, Uncertainty and Complexity"
Singapore Journal of Legal Studies, p. 457, December 2013
KEE YANG LOW, Singapore Management University - Lee Kong Chian School of Business, Singapore Management University - School of Law
With the recent Court of Appeal decision in See Toh (C.A.), the Singapore law on occupiers’ liability has undergone a sea change. There are two obvious changes. The first is that there is no longer a distinction between invitees and licensees; the law accords them the same protection. The second is that occupiers’ liability is no longer a separate tort; it is now subsumed under the tort of negligence. However, the full implications of See Toh (C.A.) are more far-reaching and profound than a casual reading of this landmark decision might suggest.
"Book Review: International Handbook on Unfair Competition by Frauke Henning-Bodewig, Ed."
Singapore Journal of Legal Studies, p. 478, December 2013
BURTON ONG, National University of Singapore (NUS) - Faculty of Law
The law of unfair competition stands at the intersection between several spheres of law: these include tort law, antitrust law, intellectual property law, consumer protection law and various statutory regimes regulating specific areas of commercial conduct. Given the divergence between the legal traditions of different legal systems, particularly between the common law and civil law based jurisdictions, the organisational structure of this area of the law varies dramatically from country to country. The scope of unfair competition encompasses areas of conduct as diverse as product design, sales, advertising, marketing and other commercial dealings with a trader’s competitors, customers, and parties upstream or downstream from the business. While all these legal systems recognise the importance of regulating the behaviour of traders in the marketplace to ensure compliance with their respective thical norms of fair conduct and honesty, their individual approaches towards responding to these issues depend very much upon the architecture of their respective legal regimes.
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Torts & Products Liability Law eJournal
Anita and Stuart Subotnick Professor of Law, Brooklyn Law School
RICHARD A. EPSTEIN
Laurence A. Tisch Professor of Law , New York University School of Law, Stanford University - Hoover Institution on War, Revolution and Peace, James Parker Hall Distinguished Service Professor of Law Emeritus, University of Chicago - Law School
Sheila Lubetsky Birnbaum Professor of Civil Litigation, New York University School of Law
MARK F. GRADY
Professor of Law, University of California, Los Angeles (UCLA) - School of Law
William B. Graham Professor of Law, University of Chicago Law School
ROBERT L. RABIN
A. Calder Mackay Professor of Law, Stanford Law School
W. KIP VISCUSI
University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Law School, Research Associate, National Bureau of Economic Research (NBER), University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Department of Economics, University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Owen Graduate School of Management, Vanderbilt University - Strategy and Business Economics
RICHARD W. WRIGHT
Professor of Law, Illinois Institute of Technology - Chicago-Kent College of Law