Table of Contents

Incentives to Take Care Under Contributory and Comparative Fault

Benjamin G. Ogden, Boston University, Department of Economics
Keith N. Hylton, Boston University - School of Law

Reconceptualizing Non-Article III Tribunals

Jaime Dodge, University of Georgia

Does the Law of Delict Have a Future? On Neuroscience and Liability

Jan M. Smits, Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)

Causal Uncertainty and Damages Claims for the Infringement of Competition Law in Europe

Ioannis Lianos, University College London - Faculty of Laws

How Atypical Cases Make Bad Rules: A Commentary on the Rulemaking Process

Suja A. Thomas, University of Illinois College of Law
Dawson Price, University of Illinois College of Law


TORTS & PRODUCTS LIABILITY LAW eJOURNAL

"Incentives to Take Care Under Contributory and Comparative Fault" Free Download
Boston Univ. School of Law, Law and Economics Research Paper No. 15-04

BENJAMIN G. OGDEN, Boston University, Department of Economics
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KEITH N. HYLTON, Boston University - School of Law
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Previous literature on contributory versus comparative negligence has shown that they reach equivalent equilibria. These results, however, depend upon a stylized application of the Hand Formula. We show that, under a correct application of the Hand Formula, there are differences between the two regimes: under bilateral harm, comparative negligence generates greater incentives for care, but this care occurs only when care is not socially optimal. By contrast, under unilateral harm or asymmetric costs of care, contributory negligence creates more care, but only when such care is not socially optimal. Therefore, it is possible to socially rank negligence regimes depending upon the symmetry of potential harm and costs of care. We discuss a potential reform the court could undertake, the Retrospective Negligence Test, that when applied in the case of bilateral harm would make comparative negligence optimal.

"Reconceptualizing Non-Article III Tribunals" Free Download
99 Minn. L. Rev, 905 (2015).
UGA Legal Studies Research Paper No. 2015-4

JAIME DODGE, University of Georgia
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The Supreme Court’s Article III doctrine is built upon an explicit assumption that Article III must accommodate non-Article III tribunals in order to allow Congress to “innovate? by creating new procedural structures to further its substantive regulatory goals. In this Article, I challenge that fundamental assumption. I argue that each of the types of non-Article III innovation and the underlying procedural goals cited by the Court can be obtained through our Article III courts. The Article then demonstrates that these are not theoretical or hypothetical solutions, but instead are existing structures already in place within Article III. Demonstrating that the foundation of our existing Article III doctrine cannot stand does not necessarily require the invalidation of all non-Article III tribunals. Instead, it requires a new generation of theory, built upon a more accurate conception of the forms of adjudication. This Article proposes two pillars upon which this new jurisprudence may rest.

This Article undertakes to build the first piece of that foundation by demonstrating that tribunals only have unique institutional capacities when fulfilling an executive or legislative function — not when fulfilling purely adjudicative roles. This observation comports with the intuition of the early Article III doctrine. While this early intuition was abandoned to accommodate the modern administrative state, the Article reveals that these intuitions can not only be undertaken without undermining the modern administrative state, but would better satisfy the normative goals identified by the modern Court. This robustness suggests that this approach may provide a solid foundation for Article III doctrine, consonant not only with the existing architecture but also the innovation and evolution of law to come. But, equally important, correcting these mistaken assumptions reshapes many of the leading Article III theories in ways that provide answers to heretofore-unanswered critiques, as these insights have the capacity to demonstrate the feasibility of stricter constitutional approaches, while providing a constitutional basis for pragmatic doctrines.

The second component of the foundation lays in the exception to Article III — consent of the parties. The consent of the parties to a non-Article III structure has become a foundational premise in our jurisprudence, invoked as recently as last Term by the Court. But this Article argues that this doctrine is undertheorized and seeks to establish that mere consent is not sufficient to protect Article III’s individual rights and structural role. Specifically, the Article explores the ways in which Congress has utilized its constitutional power both to create law and to structure the courts to devalue substantive rights or litigation outcomes to pressure individuals to consent to the non-article III determination of state and common law claims. Viewed through this lens, permitting non-Article III adjudication based on party consent may incentivize precisely the types of exertions of power by Congress to undermine the constitutional courts that Article III sought to preclude. This Article suggests that the doctrine must take a harder look at consent if it is to protect not only the structural role of Article III, but even the individual’s Article III rights from encroachment by Congress.

"Does the Law of Delict Have a Future? On Neuroscience and Liability" Free Download
MAASTRICHT EUROPEAN PRIVATE LAW INSTITUTE WORKING PAPER No. 2015/1

JAN M. SMITS, Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)
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‘Neurolaw’ is rapidly becoming one of the most fascinating fields at the intersection of law and science. The insights that neuroscientists provide us with on the functioning of the human brain are increasingly important to the law. The main reason for this is that the law is full of presumptions about how and why people act. These presumptions are increasingly questioned by neuroscientists, giving rise to what some have termed a ‘neuro-revolution’ in our thinking about the law. However, it is far from clear what the exact impact of neuro-scientific insights has to be. This contribution considers what the consequences may be for the law of delict. It is argued that neurolaw will not fundamentally change tort law because of the intrinsically normative approach of the law. However, this does not mean that neuro-scientific findings cannot be relevant in dealing with some specific questions in the law of delict. These questions are discussed.

"Causal Uncertainty and Damages Claims for the Infringement of Competition Law in Europe" Free Download

IOANNIS LIANOS, University College London - Faculty of Laws
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In a tort law regime established on the basis of corrective justice considerations, causation requirements will tend to play a predominant role in regulating the damages claims brought forward. The requirement of the causal link between the harm suffered and the anticompetitive conduct in damages claims for infringement of EU competition law has nevertheless received remarkably little attention in the recently adopted EU Damages Directive and in academic literature. The Damages Directive and some recent case law of the Court of Justice of the EU proceed to some limited harmonization of evidential presumptions and procedural requirements, as well as the exclusion of national rules that may deny the right of the parties harmed by the competition law infringement to receive compensation. Yet, the contours of the requirement of causal link are left to the interpretative work of national courts, in view of their respective tort law doctrines on causation and the lack of a proper EU tort law. The study first explores the role of the concept of causation in claims for damages for infringement of EU competition law and the different approaches taken by the legal systems of EU Member States in conceptualizing the inquiry of a causal link. It then focuses on the methods used by the tort law systems of the EU Member States, the recent Damages Directive and the case law of the EU Court to engage with situations of causal uncertainty, which may frequently arise in the context of competition law actions for damages, in view of the complexity of the commercial environment and the multiple factors influencing markets.

"How Atypical Cases Make Bad Rules: A Commentary on the Rulemaking Process" Free Download
Nevada Law Journal, Vol. 15, 2014-15

SUJA A. THOMAS, University of Illinois College of Law
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DAWSON PRICE, University of Illinois College of Law
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Commentators have criticized the rulemaking process for decades. Legal scholarship has focused primarily on challenging its constitutionality, questioning whether different actors make better rulemakers, and arguing that some entities have too much power and others have too little. Other commentators have focused on the tools that should be employed by rulemakers when evaluating proposals, focusing on the importance of empirical studies to support rule changes and the role of bias in the formulation of certain rules. In this symposium article, we add to this scholarship by arguing that advisory committees should refrain from proposing and adopting rule amendments that are motivated by atypical cases. Such rules will also affect typical cases, creating bad law for typical cases because the rules were not formulated for such cases. The article describes the thesis of a previous article on how atypical cases make bad law and applies the framework to a current amendment to change the scope of discovery, showing atypical cases make bad rules.

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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