Table of Contents

Controlling Product Risks When Consumers are Heterogeneously Overconfident: Producer Liability vs. Minimum Quality Standard Regulation

Andrzej Baniak, Central European University (CEU) - Department of Economics
Peter Grajzl, Washington and Lee University - Department of Economics, CESifo

Compensation for Environmental Damage in China: Theory and Practice

Michael G. Faure, University of Maastricht - Faculty of Law, Metro, Erasmus University Rotterdam (EUR) - Erasmus School of Law
Liu Jing, Maastricht University - Faculty of Law

Physicians, Medical Ethics, and Execution by Lethal Injection

I. Glenn Cohen, Harvard Law School
Robert D. Truog, Harvard Medical School
Mark Rockoff, Children's Hospital Boston

Constitutional, Criminal, Civil

Karen Orren, University of California, Los Angeles (UCLA) - Department of Political Science

The Product Liabilty Directive: Time to Get Soft?

Duncan Fairgrieve, British Institute of International and Comparative Law
Geraint Howells, City University of Hong Kong (CityUHK) - School of Law
Marcus Pilgerstorfer, Old Square Chambers


TORTS & PRODUCTS LIABILITY LAW eJOURNAL

"Controlling Product Risks When Consumers are Heterogeneously Overconfident: Producer Liability vs. Minimum Quality Standard Regulation" Free Download
CESifo Working Paper Series No. 5003

ANDRZEJ BANIAK, Central European University (CEU) - Department of Economics
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PETER GRAJZL, Washington and Lee University - Department of Economics, CESifo
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Contributing to the literature on the consequences of behavioral biases for market outcomes and institutional design, we contrast producer liability and minimum quality standard regulation as alternative means of social control of product-related torts when consumers are heterogeneously overconfident about the risk of harm. We elucidate the role of factors shaping the relative desirability of strict liability vis-à-vis minimum quality standard regulation from a social welfare standpoint. We also clarify when and why joint use of strict liability and minimum quality standard regulation welfare dominates the exclusive use of either mode of social control of torts.

"Compensation for Environmental Damage in China: Theory and Practice" Free Download
ENVIRONMENTAL DAMAGE COMPENSATION, vol. 31, 2013, 240-321

MICHAEL G. FAURE, University of Maastricht - Faculty of Law, Metro, Erasmus University Rotterdam (EUR) - Erasmus School of Law
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LIU JING, Maastricht University - Faculty of Law
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Many have pointed at the fact that the spectacular economic growth in China has come at a high price, especially concerning the environmental costs related to this growth. There is increasing literature available now, both in and outside of China on the available governance instruments that China is increasingly using in its fight against environmental pollution. Indeed, with growing economic welfare also the demand for environmental quality is increasing in China as well.

An issue which received less attention so far was the ex post compensation after environmental pollution occurred. The aim of our study is not so much to look at instruments aiming at prevention of environmental harm, but to address the question to what extent victims of environmental harm can be compensated for this harm in China. The concept of victims should obviously be interpreted broadly since victims could also be the environment at large in which case the question arises to what extent for example the government or an NGO may have the right to ask remedies on behalf of the environment.

The goal of our study is not only to provide an insight into the “law in the books? by sketching which instruments and remedies are available, but also to address “law in action?, by examining to what extent the various compensation mechanisms are indeed applied in practice as well. To that end we have undertaken some interviews with stakeholders in China in order to obtain information on the way in which environmental damage is being remedied.

Our focus is on remedies for environmental harm. Even though the main (traditional) remedy after damage may be (monetary) compensation, in case of environmental pollution other remedies (such as restitution) may be relevant as well.

Methodologically we will therefore both address available remedies on the basis of the regulatory framework, but also examine to what extent these remedies are indeed applied. Moreover, we will normatively where appropriate, also formulate a few suggestions for reform.

The question of how to compensate for environmental damage has become a hot topic in China. Almost every day one now can read about cases of environmental harm with which various Chinese communities are confronted whereby almost every time the question is asked how adequate compensation for this harm can be provided. The issue is also topical given recent legislative changes in China. In December 2009 China introduced a New Tort Liability Law in which important provisions also deal with environmental liability. Moreover, even though environmental insurance markets are not yet that well developed in China increasingly both potential victims as well as industry are demanding the development of adequate insurance products to deal with environmental harm. Strikingly the only domain in which compensation seems to work adequately, not only on paper but also in practice is the domain of marine oil pollution in which international conventions have played an important role.

Our paper is set up as follows: after an introduction (1) we will first focus on the role of liability rules in compensating for environmental harm (2), then we focus on insurance (3) and discuss the specific case of marine oil pollution (4). For every topic first the theoretical possibilities to provide compensation will be sketched; next the question will be addressed what role these mechanisms lay in practice. A few concluding remarks (5) will provide a summary and some policy recommendations.

"Physicians, Medical Ethics, and Execution by Lethal Injection" 
311 JAMA 2375 (2014)

I. GLENN COHEN, Harvard Law School
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ROBERT D. TRUOG, Harvard Medical School
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MARK ROCKOFF, Children's Hospital Boston
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In the wake of the recent botched execution by lethal injection in Oklahoma, a group of eminent legal professionals known as the Death Penalty Committee of The Constitution Project issued a set of recommendations for sweeping legal and administrative reforms of this method of capital punishment. This Article discusses the Committee’s recommendation that medical personnel perform the medically-related elements of lethal injection executions. Noting that such involvement is prohibited by the codes of medical ethics of professional societies in every medical profession, this Article argues that significant ethical concerns dictate that medical professionals should refuse to participate in lethal injection executions.

"Constitutional, Criminal, Civil" 
The Review of Politics 76 (2014), 635-659

KAREN ORREN, University of California, Los Angeles (UCLA) - Department of Political Science
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With a view to elaborating a developmental theory of constitutionalism in the United States, this essay explores the relationship among constitutional, criminal, and civil law. It supports, with relevant case materials, a single proposition: civil litigants are afforded contested constitutional protections in federal court to the extent that the judges attribute an aspect of criminality to the underlying facts or issues in question. The essay tests this proposition in the areas of punitive damages, double jeopardy, and constitutional torts; discusses the mirroring of the stipulated pattern in legal maneuvering on constitutional issues; and briefly spells out its implications for the larger theory.

"The Product Liabilty Directive: Time to Get Soft?" 
(2013) Journal of European Tort Law 1-33

DUNCAN FAIRGRIEVE, British Institute of International and Comparative Law
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GERAINT HOWELLS, City University of Hong Kong (CityUHK) - School of Law
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MARCUS PILGERSTORFER, Old Square Chambers

The Product Liability Directive was adopted in 1985. Despite ample evidence of uncertainty as to the meaning of some key provisions, there is no sign that the Commission is keen to engage in a revision of the Directive. Our intention in this article is not to prescribe substantive solutions but to consider how, methodologically, reform might be achieved. Whilst some potential reforms, such as the removal of the ten year long-stop, may require legislative intervention we consider if there is any scope for making the law more certain with developments based on alternative ‘soft law’ techniques for promoting greater certainty. We conclude that Guidance may be helpful, but should be founded on a minor amendment to the Directive authorising such Guidance to be developed.

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Torts & Products Liability Law eJournal

ANITA BERNSTEIN
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

MARK GEISTFELD
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

SAUL LEVMORE
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