Assessing the Defensive Practices Concern in Tort Law: Bridging the Gap between Empirical Analysis and Doctrinal Reasoning
38 Pages Posted: 7 Jul 2013
Date Written: June 27, 2013
This article evaluates the concern that tort liability causes individuals or organizations to change their behavior, actions, or views. After comparing how the defensive practices concern is used in case law and empirical studies, it is found that U.K. and Dutch case law currently suffer from an imprecise use of the defensive practices concern, and that the relationship between liability and practices is much more nuanced than case law suggests. It is concluded that the rather careless application of the defensive practices concern can, and presumably does, impact case outcomes.
Keywords: tort, liability, empirical, defensive practices, comparative law
JEL Classification: K13
Suggested Citation: Suggested Citation