Table of Contents

Reluctant Pluralist: Moore on Negligence

Kenneth W. Simons, University of California, Irvine School of Law, Boston University - School of Law

The Harms of Privacy

Eric Descheemaeker, University of Edinburgh - School of Law

Unquantified Benefits and Bayesian Cost-Benefit Analysis

Jonathan S. Masur, University of Chicago - Law School
Eric A. Posner, University of Chicago - Law School

Is Race- and Sex-Based Targeting Efficient? A Closer Look at Tort Law's Discriminatory Damage Awards

Ronen Avraham, University of Texas at Austin - School of Law

Delictual Liability for Negligent Interference with a Contractual Relationship – Minister for Safety and Security v Scott

J. Neethling, University of the Free State - Faculty of Law
JM Potgieter , University of South Africa (UNISA)

Cybersecurity and Cybercrime: Intellectual Property and Innovation

Emile Loza de Siles, Technology & Cybersecurity Law Group, PLLC

Bystander Interventions

Sarah Lynnda Swan, Columbia University, Law School


TORTS & PRODUCTS LIABILITY LAW eJOURNAL

"Reluctant Pluralist: Moore on Negligence" Free Download
Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore (Kimberly Kessler Ferzan and Stephen J. Morse eds., Oxford University Press), 2015, Forthcoming
UC Irvine School of Law Research Paper No. 2015-74

KENNETH W. SIMONS, University of California, Irvine School of Law, Boston University - School of Law
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Michael Moore has addressed the meaning and desirability of legal liability for negligence on several occasions. His early writings treat negligence as a consequentialist concept and as an appropriate basis for tort but not criminal liability. But in more recent writings, he is more pluralistic, recognizing that nonconsequentialist considerations play a proper role in tort negligence judgments, and tentatively endorsing negligence liability in criminal law as well. The evolution in his views is welcome. At the same time, neither Moore nor other scholars have yet provided a satisfactory account of this protean legal and moral concept. More attention should be paid to the questions whether negligence is a type of wrongdoing, a type of culpability, or both; and whether negligence differs from recklessness in kind or only in degree.

"The Harms of Privacy" Free Download
Edinburgh School of Law Research Paper No. 2015/27

ERIC DESCHEEMAEKER, University of Edinburgh - School of Law
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This paper aims to identify and order the harms or losses which the law might compensate in actions for breach of privacy. Part I identifies three such harms: pecuniary loss, mental distress and breach of privacy per se. Part II comprises an ordering exercise which requires a theoretical detour in order to explain why the redress of these various heads of detriment answers to two different logics which ought not to be combined. This is because pecuniary loss and mental distress correspond to a ‘bipolar’ model of tort, where the wrong is contrasted with the ensuing losses: on that model, the abstract loss of privacy ought not to be compensated separately. Conversely, the compensation of the right-diminution itself entails switching to a ‘unipolar’ model, whereby wrong and loss collapse onto one another, rendering redundant the redress of harms flowing directly from it. The law of privacy shows itself to be a battlefield between these two analytical frameworks, where the temptation to combine the approaches is a constant one. Part III examines four consequences the choice of model has on (i) the privacy of juridical persons, (ii) that of non-sentient beings, (iii) the meaning of loss in tort law and (iv) the relationship between compensation and vindication as aims of money awards.

"Unquantified Benefits and Bayesian Cost-Benefit Analysis" Free Download
University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 730
U of Chicago, Public Law Working Paper No. 538

JONATHAN S. MASUR, University of Chicago - Law School
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ERIC A. POSNER, University of Chicago - Law School
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As the last act of its 2014-2015 Term, the Supreme Court struck down a major EPA regulation limiting mercury emissions from electrical power plants. The formal legal reason was EPA’s failure to consider the costs of regulating mercury before deciding that it must be regulated. But the costs of the regulation — $9.6 billion — would not have attracted such attention if they had not seemed so disproportionate to the regulatory benefits. The only mercury-related benefits that EPA could measure and include in its analysis related to the possibility that mercury exposure would slightly reduce the IQ of the children born to women who consumed fish high in mercury while pregnant. Against $9.6 billion in costs, EPA calculated only $5 million in benefits — a ratio of 1,920 to 1. The imbalance in this ratio had a significant impact upon the court. As Justice Scalia wrote for the majority in Michigan v. EPA, “One would not say that it is even rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.?

"Is Race- and Sex-Based Targeting Efficient? A Closer Look at Tort Law's Discriminatory Damage Awards" Free Download
U of Texas Law, Law and Econ Research Paper No. E558

RONEN AVRAHAM, University of Texas at Austin - School of Law
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Under traditional law and economics analysis, it is deemed efficient to target individuals and communities based on race and gender when doing so results in the lowest tort liability for a rational actor. This results in the targeting of low income minorities and women - a fact which law and scholars economics would stamp with analytical approval, but are likely embarrassed to admit. Surprisingly, the basis for this targeting is the seemingly neutral use of race- and gender-based statistical tables (for example life expectancy or worklife expectancy) which, when used in tort damage calculations, result in a large disparity between damages awarded to whites versus blacks, and men versus women. First, this paper provides a full account of courts' existing discriminatory practices, identifying both theoretical and actual examples of race and gender targeting. It then challenges the conventional wisdom that the use of race- and gender-based tables are justified on efficiency grounds, pointing out fatal flaws inherent in the tables, in how the tables are used in courts to calculate damages for individuals, and in the incentives they create. Under the status-quo, tort law’s remedial damage scheme both perpetuates existing racial and gender inequalities and creates ex-ante incentives for potential tortfeasers to engage in future discriminatory harm (discriminatory targeting) towards women and minorities. The paper then shows that similar discriminatory practices surprisingly and ironically exist in federal law such as the ADA and even Title VII. After discussing the legal and theoretical background, statistical shortcomings, and efficiency concerns associated with the use of race- and gender-based statistical tables, this paper proposes a feasible, low cost, and logical solution to save American courts as well as the law and economics movement from this great embarrassment, and push towards a more efficient, and fair tort law remedial system.

"Delictual Liability for Negligent Interference with a Contractual Relationship – Minister for Safety and Security v Scott" Free Download
Journal of Contemporary Roman-Dutch Law, Vol. 78, p. 162-169, 2015

J. NEETHLING, University of the Free State - Faculty of Law
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JM POTGIETER , University of South Africa (UNISA)
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It has always been controversial whether the negligent interference with a contractual relationship can also found the Aquilian action. In Shell and BP SA Petroleum Refineries (Pty) Ltd v Osborne Panama SA 1980 3 SA 653 (D) the court was in principle willing to grant the actio legis Aquiliae in a case where the interference with a contractual relationship consisted of aggravating a contractual obligation. The claim, however, failed as a result of the absence of a legal duty – and consequently wrongfulness – as against the plaintiff. Also in Dantex Investment Holdings (Pty) Ltd v Brenner 1989 1 SA 390 (A) 395 there was not an outright rejection of the possibility of liability for the negligent interference with a contractual relationship; instead, the Appellate Division left the question concerning such a possibility open (see also Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 4 SA 378 (D) 380-381). In AB Ventures Ltd v Siemens Ltd 2011 4 SA 614 (SCA) the Supreme Court of Appeal also dealt with the negligent interference with a contractual relationship, albeit not by name, where the contractual obligations of a contracting party were increased. However, the claim was dismissed for lack of wrongfulness on the part of the defendant. Liability for negligent interference with a contractual relationship was also at issue in the case under discussion.

"Cybersecurity and Cybercrime: Intellectual Property and Innovation" Free Download

EMILE LOZA DE SILES, Technology & Cybersecurity Law Group, PLLC
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Cybersecurity and the industry, innovation, and issues it generates are profoundly transformative and intensely critical at every level and many or most social, corporate, and government functions.

Cybersecurity legal issues cover a vast range: cyber warfare, national security, critical infrastructure defense, Internet access and freedom, data privacy and security, trusted software development and deployment, law firms’ protection of patent application, bank, and other confidential information, “hacking back? and other active cyber defense measures, information-sharing by cyberattacked organizations, and more.

This brief article begins outlines the relevance of cybersecurity and cybercrime to intellectual property and innovation and provides extensive statistics and citations.

"Bystander Interventions" 
Wisconsin Law Review, Forthcoming

SARAH LYNNDA SWAN, Columbia University, Law School
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Bystander intervention strategies are emerging as a popular proposed solution to complex social problems like bullying in schools and online, sexual misconduct on college campuses, and harassment in the workplace. As the name suggests, bystander intervention initiatives encourage individuals who witness such harms to adopt an active, interventionist approach in stopping them. For example, a teenager who sees another student being bullied on a website, a college student who observes a heavily intoxicated female student being led into a bedroom by a male companion, and a work colleague who overhears a sexist or racist joke are encouraged to either intervene to prevent a situation from escalating, or to report an incident after it has occurred. The belief that bystander interventions can combat these harms is so strong that in some instances, the implementation of bystander intervention initiatives is becoming legally required.

Ironically, at the same time as law is starting to require the implementation of bystander intervention initiatives, law also functions as an impediment to successful bystander intervention. First, while bystander intervention programs try to create a norm of intervention, most legal norms support non-intervention, giving rise to a “competing prescriptions? problem most commonly resolved with inaction. Second, a lack of legal accountability for the surrounding institutions and organizations indirectly discourages bystander intervention. Finally, a perceived risk of liability associated with intervention immobilizes many bystanders. Unless these legal impediments are minimized, bystander intervention is unlikely to achieve its potential as a solution to social problems.

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Advisory Board

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