Procreative torts: enhancing the common-law protection for reproductive autonomy

Roe v. Wade's twenty-fifth anniversary is likely to herald widespread scholarly commentary on the decision's continued vitality and the future of abortion in the United States. However, if such commentary focuses solely upon the constitutional dimensions and political aspects of a woman's right to privacy, an important dimension of this right will be overlooked. Few commentators have considered the extent to which tort law safeguards a woman's interest in reproductive autonomy. In this article, Professor Northern argues that the interest in reproductive autonomy has not yet received the full protection to which it is entitled and that tort law is poised to evolve distinct causes of action for the interference with procreative autonomy interests. Professor Northern begins with an overview of the medical and psychological literature on abortion-related risks. She goes on to discuss current trends in abortion malpractice litigation. The author then reviews the three basic types of malpractice causes of action--battery, negligence, and lack of informed consent--and explores their application to abortion malpractice claims. The focus of the article then shifts to the development of specialized procreative torts, and Professor Northern contends that courts should go beyond previous decisions to redress any substantial interference with procreative autonomy. Finally, the author asserts that legislative alternatives to the common-law development of procreative torts, such as right-to-know statutes, are less protective of women's interests. Professor Northern concludes that tort law could and should be used to more fully protect women's interests in procreative autonomy.     

Market Processes, Standardisation, and Tort Law

Private standards play a decisive role in tort law and in administrative law. Although they seem to be a perfect tool to achieve the goal of European integration, they tend to substitute democratic legitimacy with uncontrolled private governance. The loss of democratic control is accentuated by the failure of markets to provide sufficient incentives for standardising organisations to behave in a non-opportunistic manner. The dangers of cartelisation and oligopolistic behaviour are obvious. The approach to overcome these deficits is complex: on the one hand, an institutional governance of private organisations is necessary to incorporate third party interests in the process of enacting private standards; on the other hand, the legal effects of private standards have to be restricted to mere assumptions dependent on the democratic quality of their enacting process. The problem of democratic legitimacy is aggravated by the parallel substitution of state authorities' control by means of private certification organisations which control only the management procedures of firms. As these management systems are difficult to be evaluate, the opportunities for opportunistic behaviour amongst firms and certifiers increases. Moreover, markets themselves fail to discipline certifiers by virtue of a lack of observable factors which might indicate the quality of certification. Tort law, too, cannot fulfil that gap by providing liability for damages caused by undue certifications because tort law suffers from a variety of shortcomings such as missing protection of public goods and difficult assessments of causation linkages. In sum, the author argues for a mixture of market incentives, tort law and administrative law. Each sector must fill in the gaps left by the others.     

Tort Law and Corrective Justice

This article offers arefutation of the corrective justiceinterpretation of tort law – the view that itis essentially a system of corrective justice. It introduces a distinction between primary andsecondary tort duties and claims that tort lawis best understood as the union of its primaryand secondary duties. It then advances twoindependent criticisms of the correctivejustice interpretation. The article firstargues that primary tort duties have nothingfundamentally to do with corrective justice andthat, if one understands what is meant by``primary tort duties,' one is compelledto regard this fact as a decisive objection tothe corrective justice interpretation. Second,it argues that, whatever relation thereis between secondary tort duties and correctivejustice, that relation also holds betweencorrective justice and secondary duties ofother legal branches. In sum, the concept ofcorrective justice is neither capable ofunifying tort law nor of demarcating it fromother legal branches.The article also offers a general alternativeinterpretation of tort law. Rather thanbeing essentially corrective, tort law isessentially protective. Under this picture, iftort law has a most important point, it is theprotection of legal subjects and valuablesocial interests from harm. This is theoverarching ambition that unifies primary andsecondary tort duties. It does not, however,demarcate tort law from other legal branches.     

Rethinking Injunctions in Tort Law

This article considers the way in which injunctions have generallybeen made more freely available in tort in connection with theprotection of property and property-like interests. It arguesthat this prioritization of property can be viewed as underminingthe generally accepted hierarchy of protected interests. Itthen argues that if negligence law were seen as a tort thatembraces not just careless, but also deliberate and recklessconduct, it could be used as a basis for granting injunctionsin a number of important circumstances that would help to restorethe right to bodily integrity to its rightful place at the topof the hierarchy of protected interests in tort law.     

Bad medicine: prescription drugs, preemption, and the potential for a no-fault fix

For decades, federal regulation of pharmaceutical drugs and medical devices has worked hand in hand with state tort claims to protect the health and safety of the American public. Now, a new trend toward preemption endangers this scheme. In recent years, the Supreme Court has given increasing deference to agency assertions about their preemptive authority and has found preemption in an increasing number of cases. In the process, the Supreme Court has preempted claims for medical device injuries and left claims for pharmaceutical harms in a precarious position. The elimination of common law claims for drug and device harms will leave holes in the FDA's regulatory scheme, endangering the health and safety of Americans. It will also prevent ordinary Americans from seeking compensation for their injuries--even those injuries caused by manufacturer malfeasance. This Article proposes that Congress create a no-fault compensation scheme for drugs and medical devices to close these gaps. Such a scheme could be both practical and politically possible, satisfying manufacturers, tort reformers, patients, and plaintiffs' lawyers alike.     

Compensating victims for harms caused by pollution and other hazardous substances: a comparison of American and Japanese policies

This paper reviews recent American proposals to reform the system for compensating victims of pollution and compares them with the Japanese approach. American proposals fall into three categories: balanced approaches that combine administrative relief with tort reform; proposals that would provide administrative relief but eliminate tort remedies; and proposals to reform tort law which have nothing to say about administrative relief. While American policy-makers are still groping for a solution, in Japan tort law changes provided the rationale for a system of administrative relief that preserves the victims' right to sue. While the Japanese approach is not perfect, the early development of a policy reduced legal and political uncertainties and provided a stable environment for economic growth.     

美国侵权法中的纯粹经济损失解读

纯粹经济损失问题是美国侵权法领域的热点问题之一,它的解决主要依据一般过失侵权规则和经济损失规则两种方法。作为占主导地位的规则,经济损失规则源于法院对缺陷产品引起纯粹经济损失案件的判决,现在已经广泛适用于一般过失侵权领域。经济损失规则的理论依据主要包括维持侵权法与合同法的界限、合同优先理论、＂诉讼洪闸＂理论和社会成本理论。经济损失规则在服务合同、过失误述等特殊情况下的适用例外,在不同的州得到不同程度的承认。总体而言,美国侵权法在纯粹经济损失问题上达成了尚不稳定的一致,相关的判例及学说仍在不断发展之中。     

论应当赋予侵权债权在破产分配中以优先地位

＂三鹿＂奶粉事件凸显在企业大规模侵权下在破产程序中赋予侵权债权普通债权人的地位具有不合理性。赋予侵权之债债权以普通债权的地位是对私法概念的曲解,违背了民商法公平正义的价值理念,不符合商法追求社会效益的价值诉求。基于此,应当赋予侵权之债在破产分配中以优先地位。     

风险社会下的大规模侵权与责任保险的适用

人类自身活动已成为现代社会风险的根本性来源,大规模侵权是风险社会的极端表现,传统侵权责任法的单一赔偿机制已不足以救助大规模侵权中的众多受害者,将责任保险运用于大规模侵权损害救济中,对于维护社会经济秩序稳定,构建和谐社会具有重要意义。大规模侵权责任保险的构建应在模式选择、责任保险范围、责任限额、保险费率以及风险防范等问题上进行合理设计。     

夫妻侵权责任探微

法制日益健全 ,人们维权意识不断增强 ,建立夫妻之间侵权责任体系的社会基础已经形成。该体系在运用民法的一般原理处理夫妻共同体内部平等主体之间的侵权纠纷的同时 ,又要考虑到夫妻之间特殊的亲情关系与伦理性调整的特点 ,应努力将法律调整的强制性与民事调整的任意性以及道德调整的广泛性有机结合 ,为建立文明、稳定、和睦的婚姻家庭关系服务。     

Orphan drugs: the question of products liability

Orphan drugs, essential for the treatment of persons with rare diseases, generally are unprofitable for manufacturers to develop and market. While congressional and administrative efforts to promote the development of orphan drugs have met with modest success, application of products liability doctrine to orphan drug sponsors could subvert those efforts. This Note describes the provisions of the Orphan Drug Act and analyzes products liability law with respect to orphan drug litigation. It argues that the goals of tort law support the imposition of liability for design defect, failure to warn and negligence in testing. Finally, the Note acknowledges that liability costs create disincentives for orphan drug development and suggests mechanisms for reducing manufacturers' liability concerns.     

欺诈的界分

就欺诈的研究视角,大多限于合同欺诈的角度,着眼于欺诈的构成及其法律后果,或者民事欺诈与合同诈骗罪的界分。但此种进路忽略了欺诈行为本身以及侵权法上的欺诈,忽视了侵权法在对欺诈的调整中应有的作用,甚至将侵权法对欺诈行为的控制化为乌有。若从法律行为的效力控制、合同责任、侵权责任承担以及合同诈骗罪的判处等不同的法律调控方式及其作用空间角度考察,可以更加明确对不同层面的欺诈的法律调控,也可更有效保护表意人的合法权益。     

A Deferential Role for Efficiency Theory in Analysing Causation-Based Tort Law

This paper argues for a reorientation in our thinking concerning the relationship between causation and efficiency in the design of tort law. The main proposition is that efficiency theory has a significant but deferential role to play in understanding appropriate tort law rules in countries where a corrective justice purpose is fundamental to the tort system.     

Disability,Rights, and the Construction of Sexuality in Tort Claims

This study empirically investigates how courts define sexuality of disabled persons in the absence of a formal right to sexuality. The focus of the study is tort law, a field ungoverned by direct disability rights legislation, assuming that tort law is the law of disablement as it concerns the transformative process of becoming disabled. The study investigates the types of damages courts have awarded for harm to sexual functioning, inquiring to whom and under what conditions have they been awarded. Additionally, it examines the discourse that characterizes each type of damages, and the legal, social, medical, and healthcare policy developments that have affected courts' rhetoric and reasoning. Our findings reveal shifting trends in scale, content, and inclusiveness of beneficiaries in terms of gender and age. Over time, courts have adopted a more hopeful and dynamic approach to disabled persons' sexuality while remaining within an individual‐medical framework. We suggest that these shifting trends can be linked to the slow diffusion of the social‐affirmative approach to disability, the limits of tort law as a field, and the role of healthcare policy in shaping the landscape of tort claims.     

Safety,Regulation and Tort: Fault in Context

The relationship between tort and regulation is dense and complicated. This paper examines diverse approaches to one small element of this relationship: the relationship between regulatory norms and the standard of care in personal injury cases. The lack of clear rules governing that interaction is not surprising: we would never expect the courts to give up the authority (or abdicate the responsibility) to generate private law norms; on the other hand, nor would we expect them to ignore the potential authority and legitimacy of external norms. The strength of external standards is best identified by close scrutiny of the regulation itself. The varying authority of external norms in a private law forum requires engagement with the process by which the external norms were reached. Who and what determined the ‘ought’ of regulation will provide greater insight into the ways in which it should inform the ‘ought’ of tort.     

生态文明背景下侵权法一般规则的“绿色化”改造

作为落实《民法总则》绿色原则的重要领域,侵权责任法回应环境问题不能仅局限于环境侵权责任专章。侵权法一般规则未对绿色原则做出适当回应,已与环境侵权责任专章内容的不断发展形成巨大反差,致使环境侵权规则在整体上游离于侵权法体系之外。此状况不仅理论上难以自洽,而且招致了实践争议,不利于对环境权益的保护。在侵权法一般规则中贯彻绿色原则,并与环境侵权的专门规定相互呼应,既是生态文明的时代需求,也是侵权法、民法体系化的必然要求。完善民法典侵权责任编(草案)应以全面救济环境损害为目标,具化、优化侵权责任方式和责任承担,同时注重发挥法律解释的作用,通过多途径推动侵权法一般规则的绿色化,增强侵权法体系乃至民法体系的融贯性。建议修改侵权责任编(草案)的救济范围、责任方式和责任分担等规定,并在《民法总则》纳入民法典时调整相关规范,形成从民法总则、侵权法一般规则到环境侵权专门规则相互协调的环境损害民法救济体系。     

“新闻(媒体)侵权”否认说

侵权责任法不应规定"新闻侵权"或"媒体侵权"。依文义分析看,支持"新闻(媒体)侵权"者,既未能明确协调好"新闻(媒体)侵权"与侵害名誉权、侵害隐私权等侵权行为之间的关系,又未能解决好"新闻(媒体)侵权"的特殊性问题;从比较法上看,无论是大陆法系的老法典、新法典,还是比较注重实用和实践经验的美国法,都没有承认"新闻(媒体)侵权";我国的立法与司法解释也从未规定过"新闻(媒体)侵权"。"新闻(媒体)侵权"之所以不被世界各国所采纳,根本原因在于,它与近现代民法的基本技术方法背道而驰。