An economic theory of the regulation of preliminary measures

Preliminary measures adopted early in litigation are crucial for plaintiffs, given existing court delays and changing economic environment, but can also harm a blameless defendant. Therefore, some form of regulation is needed to minimize the harms that can result and discard non-optimal measures. Law and economic scholars have suggested that courts should control requests for preliminary measures, but this form of regulation fails to explain existing legislations, both in civil law and common law countries. This article argues that non-optimal preliminary measures can be more efficiently filtered through a strict liability regime, and that their judicial control should be residual.     

Sequential torts and bilateral harm

This paper analyzes care incentives of individuals in a bilateral-harm setting if care choices are sequential. We find that the efficient outcome is not guaranteed under any liability rule considered, irrespective of whether information is perfect or imperfect. Furthermore, it is no longer possible to generally rank liability rules according to their induced social costs. These findings are in strong contrast to the sequential-torts setting in which harm is unilateral.     

Mass torts and moral principles

This paper examines moral problems that arise when assigning liability in causally problematic mass exposure tort cases. It examines the relevance of different conceptions of corrective justice for such assignments of liability. It explores an analogy between the expressive role of punishment and the expressive role of tort, and argues that the imposition of liability in causally problematic mass exposure cases can be justified by appeal to expressive considerations.     

Principles of economic union: An extension of John Rawls's theory of justice

In this article I identify the principles of justice by which an economic union is to be constituted. For this purpose, I extend John Rawls's constructivist theory of justice to economically integrated societies. With regard to the principles identified, I defend a twofold claim. First, the principles of economic union generated by this extended procedure of construction can serve as common points of reference for the subjects of an economic union. Second, these principles cannot come into conflict with similarly constructed prior principles of social justice and international justice.     

Intentional torts claims in medical cases

Civil liability legislation enacted in each Australian jurisdiction following the Ipp Report recommendations created a clear divide between "negligence" and "intentional" torts. The common law action for trespass to the person is to varying extents maintained in the approaches taken by the State and Territory legislatures. This article explores the potential application of intentional torts claims in a medical context in light of recent case law. It identifies advantages for plaintiffs who plead intentional tort claims, including onus of proof, causation, remoteness, the quantum of compensatory damages and the availability of aggravated and exemplary damages.     

An emerging theory of the effect of economic contraction on alcohol abuse in the United States

Recent research in the United States describing the association between adverse economic experiences and the risk of clinically significant alcohol abuse is reviewed. A theory of how economic contraction affects the incidence of alcohol abuse is offered. Implications of the theory for economic policy and the provision of services are discussed.     

The scope of punishment: an economic theory

The harm caused by many acts is not certain but probabilistic. Current public enforcement of the law combines harm-based sanctions (usually in criminal law) with act-based sanctions (very common in administrative law and regulation). We propose an economic theory of the choice between harm-based and act-based sanctions in public enforcement. The efficiency of act-based versus harm-based sanctions is analyzed and a typology of the determinants is drawn up. Our model suggests that harm-based sanctions are more efficient when (1) acquiring information about the act is important, (2) engaging in harm avoidance activities is advisable, (3) judgment-proofness is not a very significant problem, (4) punishment is especially costly, (5) changes in law are expensive or difficult to negotiate and (6) on average, potential criminals are better informed than the government about losses for society. Legal policy implications are discussed.     

Jurisdiction problems regarding Internet torts: Critical remarks

As the facts that led to the Dow Jones/Gutnick-decision of the High Court of Australia (10 December 2002) illustrate, the Internet is a powerful platform for communication. Its continuous worldwide accessibility urges discussion of a number of questions regarding tort jurisdiction. These are the starting points for some critical remarks regarding states' reciprocal claims to cross-border activities and the way in which they deal with the interests of the involved parties. For tort jurisdiction, the paper proposes and applies criteria for the assessment of the place where the harmful event has occurred or may occur (art. 5, subsection 3 Regulation 44/2001), as explained by the European Court of Justice of the European Union. Special attention is hereby given to some particularities that characterize Internet torts. On the one hand it concerns the alleged global assignment of jurisdiction that art. 5, subsection 3 may lead to and on the other hand the scope of the assigned jurisdiction in the court of the place where the damage occurs. The European approach is confronted with the principles of personal jurisdiction that are embedded in long arm statutes and the Due Process Clause, as applied in some leading American cases regarding Internet jurisdiction. It leads to suggestions regarding the development of a marginal test for the reasonableness of the jurisdiction art. 5, subsection 3 could lead to in a particular case, as well from the point of view of the weight of the connecting factor as to the scope of the jurisdiction that is based upon it.