Street‐Level Tort Law: The Bureaucratic Justice of Liability Decision‐Making

21 Pages Posted: 14 May 2012

See all articles by Simon Halliday

Simon Halliday

affiliation not provided to SSRN

Jonathan Ilan

affiliation not provided to SSRN

Colin Scott

University College Dublin (UCD)

Date Written: May 2012

Abstract

Most legal scholarship on tort focuses primarily on judicial decisions, but this represents only a limited aspect of tortious liability. The vast majority of decisions concerning tortious liability are made by bureaucrats. Unavoidably then, there are two tiers of justice in tort law. This article focuses on the lower tier – bureaucratic decision‐making – arguing that the justice of bureaucratic decisions on tort should be considered on its own terms and not by judicial standards. We develop the notion of bureaucratic justice, applying a normative framework originally set out in relation to public administration. This enables an evaluation of the strengths and weaknesses of different ways of bureaucratically determining liability claims in tort. The regimes discussed concern the liability of public authorities, but decision makers comprise both state and non‐state actors and the bureaucratic justice framework is, in principle, applicable to understand and evaluate the liability of both public and private actors.

Keywords: Tort, negligence, insurance, bureaucratic justice, public authorities

Suggested Citation

Halliday, Simon and Ilan, Jonathan and Scott, Colin David, Street‐Level Tort Law: The Bureaucratic Justice of Liability Decision‐Making (May 2012). The Modern Law Review, Vol. 75, Issue 3, pp. 347-367, 2012, Available at SSRN: https://ssrn.com/abstract=2050809 or http://dx.doi.org/10.1111/j.1468-2230.2012.00904.x

Simon Halliday

affiliation not provided to SSRN

Jonathan Ilan

affiliation not provided to SSRN

Colin David Scott

University College Dublin (UCD) ( email )

Belfield
Dublin 4
Ireland

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