Public Authority Liability and the Chilling Effect

Tort Law Review 22, 2014, 120-133

14 Pages Posted: 15 May 2019

See all articles by De Mot Jef

De Mot Jef

Hasselt University

Michael G. Faure

University of Maastricht - Faculty of Law, Metro; Erasmus University Rotterdam (EUR) - Erasmus School of Law

Date Written: 2014

Abstract

According to some, the imposition of liability on public authorities would lead them to adopt defensive practices. Others are much more sceptical and believe that chilling effects may be illusionary. Empirically, some studies seem to confirm that chilling effects exist, while other studies do not find such an effect. In the authors’ judgment, the ambiguity in the existing literature is fuelled by the lack of a theoretical model which analyses the cause of chilling behaviour and the various elements that may influence it.The article examines under what circumstances a chilling effect is more likely. Such an analysis can help to delineate the types of cases for which a restrictive approach towards public authority liability is justified. Furthermore, the article discusses the available empirical research on the existence of chilling effects due to the liability for public authorities. The authors’ argue that the economic criteria are useful in explaining the contradicting findings in the existing empirical literature.

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This article was first published by Thomson Reuters in the Tort Law Review, 2014, 120-133 and should be cited as Jef De Mot and Michael Faure, Public Authority Liability and the Chilling Effect, (2014) 22 Tort L Rev 120.

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Keywords: public authority liability, chilling effects, economic analysis

Suggested Citation

Jef, De Mot and Faure, Michael G., Public Authority Liability and the Chilling Effect (2014). Tort Law Review 22, 2014, 120-133, Available at SSRN: https://ssrn.com/abstract=3371819

De Mot Jef (Contact Author)

Hasselt University ( email )

Agoralaan - building D
Gebouw D
Diepenbeek, 3590
Belgium

Michael G. Faure

University of Maastricht - Faculty of Law, Metro ( email )

PO Box 616
Maastricht, 6200 MD
Netherlands
+31 - 43 - 388 30 60 (Phone)
+31 - 43 - 325 90 91 (Fax)

HOME PAGE: http://www.michaelfaure.be

Erasmus University Rotterdam (EUR) - Erasmus School of Law ( email )

3000 DR Rotterdam
Netherlands

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