DOCSLIB.ORG

Tort Liabilities and Torts Law: the New Frontier of Chinese Legal Horizon, 10 Rich

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Tort Liabilities and Torts Law: the New Frontier of Chinese Legal Horizon, 10 Rich Richmond Journal of Global Law & Business Volume 10 | Issue 4 Article 2 2011 Tort Liabilities and Torts Law: The ewN Frontier of Chinese Legal Horizon Mo Zhang Temple University Beasley School of Law Follow this and additional works at: http://scholarship.richmond.edu/global Part of the Comparative and Foreign Law Commons, and the Torts Commons Recommended Citation Mo Zhang, Tort Liabilities and Torts Law: The New Frontier of Chinese Legal Horizon, 10 Rich. J. Global L. & Bus. 415 (2011). Available at: http://scholarship.richmond.edu/global/vol10/iss4/2 This Article is brought to you for free and open access by the Law School Journals at UR Scholarship Repository. It has been accepted for inclusion in Richmond Journal of Global Law & Business by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. TORT LIABILITIES AND TORTS LAW: THE NEW FRONTIER OF CHINESE LEGAL HORIZON Mo Zhang1 ABSTRACT China did not have a single body of torts law until 2009. As a new piece of legislation in the country, the Torts Law of China, effec- tive as of July 1, 2010, forms a comprehensive framework that regu- lates torts and provides a legal mechanism to govern liabilities and remedies. A product of the civil law tradition, common law practice and Chinese reality combined, adoption of the Torts Law is hailed in China as an important move toward a civil society that is ruled by law. The Torts Law premises torts on the fault liability with a few exceptions where the non-fault liability is imposed. Structurally, the Torts Law is distinctive in that it stresses principles and rules of gen- eral application, and in the meantime prescribes peculiar tortfeasors and special torts that need to be dealt with differently. In substance, the Torts Law is ambitious because it intends to embrace not only traditional torts but also the newly developed area of torts. In many aspects, the Torts Law is also keen to maintain the Chinese characteristics. Still, there is a substantial gap between the law on the paper and the law in action. Many ambiguities exist, which require both leg- islative and judicial interpretations. In addition, many unsolved issues may become obstacles to the application of Torts Law. More signifi- cantly, Torts Law enforcement remains a major challenge to the Chi- nese legal system in general and to the Chinese judiciary in particular. 1 Associate Professor of Law, Temple University Beasley School of Law 415 416 RICHMOND JOURNAL OF GLOBAL LAW & BUSINESS [Vol. 10:4 TABLE OF CONTENTS I. INTRODUCTION .......................................... 417 II. CONCEPT OF TORTS AND ROLES OF THE TORTS LAW: UN- DERSTANDING OF TORTS IN CHINA ........................ 423 A. Torts in Chinese Conception ......................... 423 B. Functions of the Torts Law .......................... 427 C. Coverage of the Torts Law........................... 429 III. LIABILITY IMPUTATION PRINCIPLES: THE FOUNDATION OF CHINESE TORTS SYSTEM ................................. 431 A. General Principle of Fault ........................... 433 B. Presumption of Fault................................ 437 C. Liability without Fault .............................. 439 D. Fairness Principle ................................... 441 IV. MULTIPLE DEFENDANTS AND PECULIAR TORTFEASORS: A CHINESE CLASSIFICATION ................................ 444 A. Joint Torts .......................................... 445 B. Joint Tort Liability ................................. 449 C. Peculiar Tortfeasors ................................. 451 1. Special Relationship Tortfeasor .................. 451 2. Limited Capacity Tortfeasor ..................... 454 3. Internet Related Tortfeasor ..................... 456 V. DEFENSES TO TORT LIABILITIES: ON-GOING DEBATES ..... 458 A. Concurrent Fault of Plaintiff – Fault offset Rule ..... 459 B. Intentional Conduct of Plaintiff – Liability Exemption Rule ................................................ 460 C. Third Party Conduct – Non Joint Tortfeasor Rule . 461 D. Force Majeure and Self-Defense – Statutory Excuses . 463 E. Necessity – Rule of Emergency....................... 465 VI. MECHANISM OF REMEDIES AND DETERMINATION OF DAM- AGES: UNFINISHED BUSINESS ............................ 466 A. Liability Forms and Remedies ....................... 467 B. Damages and Rules of Compensation ................ 470 1. Personal Damages .............................. 471 2. Property Damages .............................. 474 3. Mental Damages ................................ 476 VII. SPECIAL TORT AND LIABILITIES: PARTICULAR TARGETS OF THE TORTS LAW ......................................... 478 A. Product Liability .................................... 480 1. Non-Fault Liability.............................. 481 2. Extended Liability .............................. 482 3. Punitive Damages ............................... 483 4. Mandatory Warning and Recall System ......... 484 5. Preventive measures ............................ 485 B. Liability for Environmental Pollution ............... 486 1. Liability Without Fault.......................... 486 2011] TORT LIABILITIES AND TORTS LAW 417 2. Reversed Burden of Proof ....................... 487 3. Pollution Share Rule ............................ 488 4. Third Party’s Action ............................. 489 C. Liability for Medical Damages ...................... 489 1. Medical Liability Categorization ................. 491 2. Multiple Liability Basis ......................... 492 3. Special Grounds for Liability Exemption ........ 493 4. Legal Restraint on Patients ..................... 493 VIII. CONCLUSION ............................................ 494 I. INTRODUCTION As part of its effort to adopt a comprehensive civil law (a gen- eral civil code), China enacted the Tort Liability Law – the first single piece of law on torts (the Torts Law) since 1949.2 After more than 7 years of drafting, since 2002,3 the Standing Committee of the National People’s Congress (NPC) promulgated the Torts Law on December 26, 2009, effective July 1, 2010.4 Despite lingering questions about whether the Standing Committee of the NPC may legitimately pass 2 At the very beginning of the economic reform in 1978, China had an ambitious plan to adopt a comprehensive civil code to replace the General Principles of Civil Law promulgated in 1986. But they never reached a consent among scholars and legislators on the substance of the civil code, and there were many issues that invited constant debates. In 1999, the Contract Law, which was supposed to be one chapter of the civil code, was adopted. In 2002, the first draft of the civil code was submitted to the Standing Committee of the NPC for review. Partly because of the wide disagreement over many provisions of the proposed civil code, the effort to adopt a comprehensive code at that time was abandoned. Instead, the attention was paid to the passage of separate law based on the each chapter of the proposed civil code. As a result, following the Contract Law, the Property Law was enacted in 2007. The adoption of the Tort Liability Law further exemplifies the legislative intention in this regard. 3 The effort to draft the Torts Law was initiated in 2002. Although at that time, the torts law was considered as a chapter of the proposed civil code, the draft torts chapter laid the structural basis for the later drafting of the Tort Liability Law. 4 Tort Liability Law of the People’s Republic of China (promulgated by the Stand- ing Comm., Nat’l People’s Cong., Dec. 26, 2009, effective July 1, 2010), available at http://www.gov.cn/flfg/2009-12/26/content_1497345.htm [hereinafter Tort Liability Law]. A full text of the Torts Law in English translation is available at http:// www.cnnlaw.com/show.asp?id=663. 418 RICHMOND JOURNAL OF GLOBAL LAW & BUSINESS [Vol. 10:4 Torts Law,5 Torts Law adoption is acclaimed in China as a significant modern legislative achievement in civil rights protection.6 China is known as a country where the clan and rites based Confucian orthodox dominated its legal system for thousands of years.7 But civil law tradition has strongly influenced China’s recent legal history.8 In the law regulating civil affairs, for example, the civil law concept of obligatio (obligations in English) has been deeply em- bodied in the basic structure of the law.9 Under the Roman law, the obligatio represented an obligatory relationship that is legally bind- ing,10 and was divided into ex contractu (contract) and ex delicto (de- lict).11 It also covered quasi contract and quasi delict.12 China does not use the term “quasi contract” or “quasi delict.” Instead, obligatio in China is comprehended to include contract, torts, 5 See XIANFA at art. 58 (1982). The passage of the law took an unusual step: in- stead of being adopted by the NPC full session, the Torts Liability Law took a short cut and was passed by the Standing Committee of the NPC – the permanent body of the NPC. Under Article 58 of the 1982 Chinese Constitution (as amended 2004), the National People’s Congress and its Standing Committee exercise the legislative power of the State. available at http://www.lawinfochina.com/law/ display.asp?id=3437. Pursuant to Article 62 of the Constitution and Article 7 of the Legislation Law of China, however, the legislative power of the Standing Com- mittee is limited to the law other than the basic law of the nation (e.g. according to Article 7 of the Legislation Law, the NPC enacts and amends basic laws governing criminal offenses, civil
Load more

Recommended publications
  • Contractual Confusion—Assuming the Liability of Others
    Contractual Confusion—Assuming the Liability of Others July 2009 by Craig F. Stanovich It is not surprising, then, if we become easily confused and "misremember" how contractual liability insurance works. For many, the subtleties of this rather arcane topic simply cannot be gleaned from the superficial and infrequent contacts we have with it; for others, it may not rank high on the excitement meter. Either way, what follows is intended to assist in understanding contractual liability insurance by thrashing out some concepts and offering some observations you may find helpful. Basis of Liability Liability can be imposed by law or by contract. You can also assume the liability of another. These are discussed below. Liability Imposed by Law The law can impose liability on us for our own actions . If we are negligent, we are personally liable for the damages that result. We can also be held liable for the actions of others . For example, if our employee is negligent while acting in the scope of employment, not only is the employee personally liable, we are also liable solely because we are the employer. Our liability is based entirely on our relationship with our employee. Assigning liability to an otherwise blameless party (the employer did nothing wrong) for the acts of another (our employee was negligent) is called "vicarious" liability and is also liability imposed by law. Although these concepts are generally well understood, both are worth repeating—to establish a baseline of comprehension and also to use as a point of comparison to help gain insight into contractual liability.
    [Show full text]
  • Vicarious Liability Vs Principal's Liability
    Vicarious liability vs Principal’s liability When undertaking any construction project Principal Unless the risk profile of the project dictates otherwise, clients need to carefully assess whether their potential most of the time the contractor would arrange public liabilities arising out of the project are adequately covered liability insurance for small to medium sized projects to by insurance. This paper discusses the insurance options cover the insured parties’ legal liability to third parties, available to principals, potential uninsured exposures arising out of the performance of the contract works. certain insurance options can leave and the steps principals Contractors would typically already have an annual general may need to take to fill these exposure gaps. liability policy which can be relied upon. For major projects, it is likely that the suite of insurance Unless the risk profile of the project dictates otherwise, covers will be arranged either under an owner/principal most small to medium projects allow the contractor to controlled insurance programme or a contractor arrange public liability insurance. This typically means controlled insurance programme. However, for small to that the contractor will rely on their annual public liability medium projects, insurance responsibilities are often policy and the principal can be included as an “additional shared between the parties and cover is placed by those insured” (for their vicarious liability only) arising out of considered best suited to arrange and manage the relevant the performance of the contract works by the contractor. covers. In the situation where a contractor arranges public Despite having liability insurance, principals will need to assess the level of this cover in place, coverage available, and to consider what exposures may there are a number There are a number of other still exist that are not contractually required to be covered of other liabilities liabilities a principal could face by the contractor’s policy.
    [Show full text]
  • Vicarious Liability Critique and Reform
    Vicarious Liability Critique and Reform Anthony Gray HART PUBLISHING Bloomsbury Publishing Plc Kemp House , Chawley Park, Cumnor Hill, Oxford , OX2 9PH , UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2018 Copyright © Anthony Gray , 2018 Anthony Gray has asserted his right under the Copyright, Designs and Patents Act 1988 to be identifi ed as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright © . All House of Lords and House of Commons information used in the work is Parliamentary Copyright © . This information is reused under the terms of the Open Government Licence v3.0 ( http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3 ) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/ , 1998–2018. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Gray, Anthony (Law teacher) Title: Vicarious liability : critique and reform / Anthony Gray.
    [Show full text]
  • A Theory of Vicarious Liability 287
    A Theory of Vicarious Liability 287 A Theory of Vicarious Liability J.W. Neyers* This article proposes a theory' of vicarious liability Cet article propose une thiorie de la responsabilite which attempts to explain the central features and du fail d'autrui qui essaie d'expliquer les limitations of the doctrine. The main premise of the caracteristiques el les limitations centrales de la article is that the common law should continue to doctrine. La principale primisse de cet article eslque impose vicarious liability because it can co-exist with la « common law » doit continuer a imposer la the current tort law regime that imposes liability for responsabilite du fait d'autrui parce qu'elle peul fault. The author lays out the central features of the coexisler avec le regime actual de la responsabilite doctrine of vicarious liability and examines why the delictuelle qui impose la responsabilite' pour fauie. leading rationales (such as control, compensation, L 'auteur e'nonce les caracteristiques centrales de la deterrence, loss-spreading, enterprise liability and doctrine de la responsabilite du fait d'autrui et mixed policy) fail to explain or account for its examine les raisons pour lesquelles les principaux doctrinal rules. motifs (comme le controle. I'indemnisation. la The author offers an indemnity theory for vicarious dissuasion. I'etalement des penes, la responsabilite liability and examines why the current rules of d'entreyirise et la police mate) ne peuvenl m vicarious liability are limited in application to expliquer nijuslifier les regies de cette doctrine. employer-employee relationships and do not extend L 'auteur propose une thiorie des indemnltis pour la further.
    [Show full text]
  • Autonomous Vehicles and AI-Chaperone Liability
    Catholic University Law Review Volume 69 Issue 2 Spring 2020 Article 9 10-19-2020 Where We’re Going, We Don’t Need Drivers: Autonomous Vehicles and AI-Chaperone Liability Peter Y. Kim Follow this and additional works at: https://scholarship.law.edu/lawreview Part of the International Law Commons, and the Torts Commons Recommended Citation Peter Y. Kim, Where We’re Going, We Don’t Need Drivers: Autonomous Vehicles and AI-Chaperone Liability, 69 Cath. U. L. Rev. 341 (2020). Available at: https://scholarship.law.edu/lawreview/vol69/iss2/9 This Comments is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. Where We’re Going, We Don’t Need Drivers: Autonomous Vehicles and AI- Chaperone Liability Cover Page Footnote J.D., The Catholic University of America, Columbus School of Law, 2020; B.A., Boston College, 2009. The author gives thanks to God for giving him purpose, his family and friends for their lovingkindness, Professor Kathryn Kelly for her mentorship and priceless guidance, and the Catholic University Law Review editors and staffers for their care and support in revising this Comment. This comments is available in Catholic University Law Review: https://scholarship.law.edu/lawreview/vol69/iss2/9 WHERE WE’RE GOING, WE DON’T NEED DRIVERS: AUTONOMOUS VEHICLES AND AI-CHAPERONE LIABILITY Peter Y. Kim+ Unwittingly, Iggy Pop’s “The Passenger”
    [Show full text]
  • THE 2X2 MATRIX of TORT REFORM's DISTRIBUTIONS
    Brooklyn Law School BrooklynWorks Faculty Scholarship Winter 2011 The 2x2 aM trix of Tort Reform's Distributions Anita Bernstein Brooklyn Law School, [email protected] Follow this and additional works at: https://brooklynworks.brooklaw.edu/faculty Part of the Other Law Commons Recommended Citation 60 DePaul L. Rev. 273 (2010-2011) This Article is brought to you for free and open access by BrooklynWorks. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of BrooklynWorks. THE 2x2 MATRIX OF TORT REFORM'S DISTRIBUTIONS Anita Bernstein* INTRODUCTION From having lived, all persons know that predictability and unpre- dictability each enhance our human existence and also oppress us. We depend on predictability. Individuals and entities made up of human beings-a wide category that includes institutions, businesses, and societies-cannot flourish without schedules, routines, itineraries, habits, ground rules, inferences derived from premises, and protocols of engineering and design. Predictability makes trust and hope possi- ble: human life without it would be an abyss of terror, despair, and starvation. We would die if it disappeared. Unpredictability, for its part, complements predictability. It lifts our spirits, assuages our boredom, imparts wisdom, and (hand in hand with predictability) generates economic profit. It is present in every thrill we will ever live to feel. The dichotomous contrast of these two abstract nouns does some of the work of a related yet distinct juxtaposition: security
    [Show full text]
  • The Impact of the Civil Jury on American Tort Law
    Pepperdine Law Review Volume 38 Issue 2 Symposium: Does the World Still Need Article 8 United States Tort Law? Or Did it Ever? 2-15-2011 The Impact of the Civil Jury on American Tort Law Michael D. Green Follow this and additional works at: https://digitalcommons.pepperdine.edu/plr Part of the Torts Commons Recommended Citation Michael D. Green The Impact of the Civil Jury on American Tort Law, 38 Pepp. L. Rev. Iss. 2 (2011) Available at: https://digitalcommons.pepperdine.edu/plr/vol38/iss2/8 This Symposium is brought to you for free and open access by the Caruso School of Law at Pepperdine Digital Commons. It has been accepted for inclusion in Pepperdine Law Review by an authorized editor of Pepperdine Digital Commons. For more information, please contact [email protected], [email protected], [email protected]. The Impact of the Civil Jury on American Tort Law Michael D. Green* I. INTRODUCTION II. USING No-DUTY WHEN THE COURT BELIEVES THAT THERE Is No NEGLIGENCE OR AN ABSENCE OF CAUSATION III. USING NO-DUTY IN A SIMILAR FASHION TO PART II, WHEN THERE ARE OTHER GOOD AND SUFFICIENT (BUT UNSPECIFIED) REASONS FOR No LIABILITY IV. EMPLOYING UNFORESEEABILITY TO CONCLUDE THAT THERE IS NO DUTY BASED ON CASE-SPECIFIC FACTS OF THE SORT THAT WOULD ORDINARILY BE FOR THE JURY OR OTHERWISE EMPLOYING UNFORESEEABILITY INAN INCOHERENT FASHION V. DESCRIBING THE DUTY DETERMINATION INFACT-SPECIFIC TERMS BEFORE CONCLUDING No DUTY EXISTS OR THAT A MORE STRINGENT DUTY THAN REASONABLE CARE APPLIES VI. CONCLUSION I. INTRODUCTION pruritus: the symptom of itching, an uncomfortable sensation leading to the urge to scratch.
    [Show full text]
  • BNP Paribas SA, Et Al
    Case 1:16-cv-03228-AJN Document 193 Filed 02/16/21 Page 1 of 21 UNITED STATES DISTRICT COURT 2/16/21 SOUTHERN DISTRICT OF NEW YORK Entesar Osman Kashef, et al., Plaintiffs, 16-cv-3228 (AJN) –v– OPINION & ORDER BNP Paribas SA, et al., Defendants. ALISON J. NATHAN, District Judge: This putative class action is brought on behalf of victims of the Sudanese government’s campaign of human rights abuses from 1997 to 2009. Plaintiffs bring various state law claims against Defendant financial institution and its subsidiaries for assisting the Sudanese government in avoiding U.S. sanctions, which Plaintiffs claim provided the Regime with funding used to perpetrate the atrocities. The Court previously granted the Defendants’ motion to dismiss in light of the act of state doctrine and timeliness, but that decision was reversed by the Second Circuit. Dkt. Nos. 101, 106. Following remand, the Defendants renewed their motion to dismiss Plaintiffs’ Second Amended Complaint for failure to state a claim. For the reasons described in this opinion, the motion is granted in part and denied in part. I. BACKGROUND A. Factual Background Plaintiffs were victims of horrific human rights abuses undertaken by the Government of Sudan between 1997 and 2009, including “beatings, maiming, sexual assault, rape, infection with HIV, loss of property, displacement from their homes, and watching family members be killed.” Second Amended Complaint (“SAC”), Dkt. No. 49, ¶ 24; see also SAC ¶¶ 30-50 (outlining 1 Case 1:16-cv-03228-AJN Document 193 Filed 02/16/21 Page 2 of 21 specific abuses suffered by each representative Plaintiff).
    [Show full text]
  • The Concurrent Liability in Contract and Tort Under US and English
    Maurer School of Law: Indiana University Digital Repository @ Maurer Law Theses and Dissertations Student Scholarship 2017 The Concurrent Liability in Contract and Tort Under U.S. and English Law: To What Extent Plaintiff Is Entitled to Recover for Damages Under Tort Claim? Phutchaya Numngern Indiana University Maurer School of Law, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/etd Part of the Contracts Commons, and the Torts Commons Recommended Citation Numngern, Phutchaya, "The Concurrent Liability in Contract and Tort Under U.S. and English Law: To What Extent Plaintiff Is Entitled to Recover for Damages Under Tort Claim?" (2017). Theses and Dissertations. 48. https://www.repository.law.indiana.edu/etd/48 This Thesis is brought to you for free and open access by the Student Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Theses and Dissertations by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. THE CONCURRENT LIABILITY IN CONTRACT AND TORT UNDER U.S. AND ENGLISH LAW: TO WHAT EXTENT PLAINTIFF IS ENTITLED TO RECOVER FOR DAMAGES UNDER TORT CLAIM? Phutchaya Numngem Submitted to the faculty of Indiana University Maurer School of Law in partial fulfillment of the requirements for the degree Master of Laws - Thesis August 2017 Accepted by the faculty, Indiana University Maurer School of Law, in partial fulfillment of the requirements for the degree of Master of Laws - Thesis. Thesis Committee ~- Professor Hannah L. Buxbaum John E. Schiller Chair in Legal Ethics; Academic Director, IU Gateway, Berlin, Office of the Vice President for International Affairs Submission date of thesis 11 Copyright © 2017 Phutchaya Numngem All rights reserved iii ACKNOWLEDGMENTS I would like to express my deep gratitude and appreciation to my advisor, Professor Hannah L.
    [Show full text]
  • Revisiting the United States Application of Punitive Damages: Separating Myth from Reality
    REVISITING THE UNITED STATES APPLICATION OF PUNITIVE DAMAGES: SEPARATING MYTH FROM REALITY Patrick S. Ryan* I. ABSTRACT ........................................ 70 II. INTRODUCTION ..................................... 70 m. THE UNFORTUNATE TENDENCY TO BELIEVE URBAN LEGENDS .......................................... 71 IV. THE PET IN THE MICROWAVE .......................... 72 V. PUNITIVE DAMAGES: THE UNDERLYING POLICY .......... 74 A. The Punishingand Deterrent Functions of Punitive Damages ...................................... 74 B. A Delicate Balance: Weighing "Enormity" of the Offense againstthe Wealth of the Defendant .......... 76 VI. THE MCDONALD'S CASE IN THE EUROPEAN PRESS ......... 76 A. McDonald's: The Facts ......................... 80 B. McDonald's: The New Mexico Trial Court Ruling .... 80 C. Calculationof Damages ......................... 82 D. McDonald's: The New Mexico Appeals Court Ruling & Settlement ............................. 82 VII. BMW v. GORE: THE FACTS AND THE ALABAMA TRIAL COURT RULING ..................................... 83 A. BMW v. Gore: The Alabama Supreme CourtRuling ... 84 B. BMW v. Gore: The United States Supreme Court R uling ........................................ 85 1. The First Guidepost: Degree of Reprehensibility.. 85 2. The Second Guidepost: Ratio Between Damages and Actual Harm ........................... 86 3. The Third Guidepost: A Review of Sanctions for Comparable Misconduct ..................... 87 C. BMW v. Gore: Remand to the Alabama Supreme Court .......................................
    [Show full text]
  • Incentivized Torts: an Empirical Analysis
    Copyright 2021 by J. Shahar Dillbary, Cherie Metcalf & Brock Stoddard Printed in U.S.A. Vol. 115, No. 5 INCENTIVIZED TORTS: AN EMPIRICAL ANALYSIS J. Shahar Dillbary, Cherie Metcalf & Brock Stoddard ABSTRACT—Courts and scholars assume that group causation theories deter wrongdoers. This Article empirically tests, and rejects, this assumption, using a series of incentivized laboratory experiments. Contrary to common belief and theory, data from over 200 subjects show that group liability can encourage tortious behavior and incentivize individuals to act with as many tortfeasors as possible. We find that subjects can be just as likely to commit a tort under a liability regime as they would be when facing no tort liability. Group liability can also incentivize a tort by making subjects perceive it as fairer to victims and society. These findings are consistent across a series of robustness checks, including both regression analyses and nonparametric tests. We also test courts’ and scholars’ insistence that the but-for test fails in cases subject to group causation. We use a novel experimental design that allows us to test whether, and to what extent, each individual’s decision to engage in a tortious activity is influenced by the decisions of others. Upending conventional belief, we find strong evidence that the but-for test operates in group causation settings (e.g., concurrent causes). Moreover, across our experiments, subjects’ reliance on but-for causation produced the very tort that group liability attempted to discourage. A major function of liability in torts, criminal law, and other areas of the law is to deter actors from engaging in socially undesirable activities.
    [Show full text]
  • Corporate Liability Strategies and the Costs of Legal Controls
    Corporate Liability Strategies and the Costs of Legal Controls Reinier H. Kraakmant Debate continues over how best to tap the private interests of enterprise participants to serve the public interest. In large part, proponents and critics of structural reform in corporate governance remain divided over whether participants within the enterprise or external institutions should define and police "responsible" corporate activity.1 Yet, questions concern- ing the self-regulatory potential of the enterprise are not limited to the corporate governance debate: They also surface in modest guise even within the existing framework of corporate regulation, a framework that relies primarily on corporate profit seeking under external legal con- straints. In this more limited context, the question becomes how external controls ought to be crafted and enforced, and whom they ought to target. When, for example, can we rely on liability rules directed solely at the corporation to assure compliance with legal norms? When should we im- pose absolute legal duties and sanctions on individual participants in the firm as well? To analyze these narrower questions of self-regulatory ca- pacity, we must go beyond a simple description of the formal duties that the law imposes on corporate participants. We must also ask how existing legal duties affect the actual incentives of corporate participants, and whether they do so in ways that yield the "right" amount of compliance t Assistant Professor of Law, Yale University. I wish to thank Bruce Ackerman, Guido Cala- bresi, Ronald Gilson, Henry Hansmann, Andrew Houston, Catherine Krupnick, Jerry Mashaw, Robert Prichard, George Priest, Victoria Rostow, and Peter Schuck.
    [Show full text]