The genesis of liability in ancient law

This article considers the emergence and evolution of punitiveand compensatory remedies in ancient law. I describe how ancientpractices of retaliation gradually evolved, through four generalphases, into rules requiring victim's compensation. I suggestthat the Biblical lex talionis ('eye for an eye...life for alife') and similar rules that emerged in other ancient legalsystems triggered an important change in the ancient law ofwrongs, marking the end of a system of retaliatory justice andthe emergence of a system based on victim's compensation. Thepaper addresses four related questions. (1) Why was a singlelimit of 1:1 to talionic penalties introduced across all categoriesof wrongdoing, replacing older customary practices that haddifferent multipliers according to the circumstances of thecase? (2) In the presence of imperfect enforcement, did the1:1 limit to retaliation result in underdeterrence? (3) Whydid the practices of literal talionis rapidly fall into disuseafter written formalization? (4) Where the kofer and blood-moneypayments made under a threat of literal retaliation likely togenerate overextraction from the wrongdoer and excessive deterrence?     

The law and economics of AI liability

The employment of AI systems presents challenges for liability rules. This paper identifies these challenges and evaluates how liability rules should be adapted in response. The paper discusses the gaps in liability that arise when AI systems are unpredictable or act (semi)-autonomously. It considers the problems in proving fault and causality when errors in AI systems are difficult to foresee for producers, and monitoring duties of users are difficult to define. From an economic perspective, the paper considers what liability rules would minimise costs of harm related to AI. Based on the analysis of risks and optimal liability rules, the paper evaluates the recently published EU proposals for a Product Liability Directive and for an AI Liability Directive.     

The development of care technology under liability law

It is well known that strict liability and negligence induce pareto optimal care in a most restrictive model of unilateral accidents. The paper at hand extends this traditional theorem from its static context to an intertemporal setting where tort law induces progress in care technology. This model provides a methodological framework for a general analysis of the dynamic incentives generated by alternative liability rules. One of the many possible extensions of the basic model is to allow for incomplete information. Particularly, we drop the assumption that the authority setting the due care standard under negligence is able to assess technical progress ex ante. It is shown that the dynamic incentives of the negligence rule are distorted compared to strict liability in this modified framework.     

私法责任正当性刍论--在违约责任和侵权责任中求证

私法责任制度设定的直接原因是违反了法定或约定的义务 ,直接目的是要归结出一种法律上的否定性评价。从这个角度来说 ,私法责任制度是为了维护在先的制度权威而产生的后续制度保障。这种后续制度在理性表现和价值体现方面依赖于在先制度 ,但又不完全依托在先制度 ,也表现出本身的制度理性。     

The rise and fall of communal liability in ancient law

In ancient societies, rules of communal responsibility permitted the imposition of retaliatory sanctions on a wrongdoer's clan. These rules followed the collective ownership structure of early communities. Over time, notions of personal responsibility emerged, terminating the transfer of responsibility from one member to the whole clan. This paper intends to provide an economic explanation for this transition.     

《侵权责任法》背景下医疗损害责任的认定

怎样的责任认定标准才是医疗损害案件裁决中的妥当标准,长期以来社会各界争执不休。《侵权责任法》的出台为消除这种分歧和争执带来了新的曙光。法院作为＂主宰＂案件胜负的关键主体,应如何把握好医疗损害案件中责任认定的标准,才能真正为和谐医患关系保驾护航。本文拟从《侵权责任法》将带来的三项重大调整、附条件的＂推定过错＂能否将患方引向法院和法院审理医疗损害案件责任认定应注意把握好三个结合作一初步探讨。     

英美刑法严格责任考察

本文对英美刑法中的严格责任制度作了简要的介绍和分析。英美刑法中严格责任犯罪的规定比较多,但是英美学者所给出的严格责任的定义并不一致。严格责任与绝对责任并非同一概念,严格责任也并非我国某些学者所认为的简单的结果责任或客观归罪。英美国家刑法理论和实务界对刑法中严格责任是否有存在的必要也有两种绝然不同的声音,但是,近年来严格责任犯罪在刑法并没有萎缩或消灭,相反,却有扩张之势,只是各国都对严格责任的适用提出了一些限制条件。     

医患关系是一种特殊的侵权责任法律关系

医患法律关系性质的界定是正确理解法律、适用法律的基础。我国相关学说虽然多,但仅仅是站在某一个立场,或以某一现象为基础,难免会有失偏颇。理论界的研究尚欠深入,司法实践中也有不少问题。文章从法学的角度论证,医患法律关系的基本性质是民事法律关系,它不属于民事合同关系,而与侵权责任关系有相似,但由于医学科学和医疗行为的特殊性,它应是一种特殊的侵权责任法律关系。     

现代劳动法中雇员违约责任的弱化

现代劳动法以弱者保护规则为根本,在劳动合同的特殊性和“效率违约”理论的影响下,形成了雇员违约责任承担的不完全性和不充分性,并因此导致了与民事违约责任完全不同的“责任弱化”的态势。     

职场性骚扰雇主责任的法经济学分析

职场性骚扰雇主责任就是雇主要为其雇员的性骚扰行为负责任。通过法经济学的分析,对于监督管理者雇员实施的交换型性骚扰雇主承担严格责任;对于敌意环境型性骚扰雇主承担过错责任。这对预防与抑制职场性骚扰更有效率,同时,可以使社会成本降到最低。     

The rights of rape victims are enhanced: Using the law of premise liability for compensation

The field of victimology has been inundated with empirical evidence which demonstrates victims of crime have very few rights. Yet a new field of civil liability has been growing in the last few years which gives rape and assault victims a new avenue to be compensated for their injuries. This paper will demonstrate how the victims’ target is not the criminal justice system (through compensation from restitution or victim’s compensation statures). Nor is it the defendant (who usually makes no money). Rather, the target is the rich apartment complex owners and other owners of commercial premises who have failed to maintain their premises safely. As a result of their negligence, the victims fail to be afforded the right to visit or habitat or to sleep without fear and are ultimately raped. Jury verdicts in these premises liability cases have reached more than nine million dollars. This paper will analyze the legal process whereby one particular rape victim actualized her rights and gained significant monetary damages under this evolving law of premise liability. Finally, it proposes the creation of a new institutionalized program that promotes the rape victim’s rights to adequate compensation for her injury-the Rape Victims’ Rights and Opportunities Program.     

Understanding search engines: A legal perspective on liability in the Internet law vista

This contribution discusses the legal dimension of search engines in an Internet law context, through both a global lens and a Turkish perspective. This paper introduces search engine liability in the growing Internet industry and the role of search engines in distributing and disseminating information. Next, this paper considers a global perspective on the legal dimension of search engines from United States case law, United Kingdom case law, and other European courts and legislation. This contribution then discusses the liability of search engines in the Turkish legal context. The conclusion provides an overall evaluation of the current status of search engine liability and prospects on its potential development.     

Judges as satisficers: a law and economics perspective on judicial liability

If judges are guardians of the law, who is to protect the individual member of society from the occasional corrupt, malicious, or reckless judge? The aim of this paper is to provide an answer to the last part of this question, focusing more heavily on cases of negligently inflicted harm. Departing from Simon’s bounded rationality and influenced by other constructs in behavioral law and economics, we view judges as satisficers who make decisions within real-world constraints, such as imperfect information and uncertainty, cognitive limitations and erroneous information. Judges are limited by the commonly observed barriers to the decision making process. Because their goal is not to optimize but to render opinions that are merely satisfactory, they often act as poor agents of their principals’ interests. In this light, it becomes clearer why judges tend to engage in behavior that is “improper”, especially under the circumstances of the currently overloaded judicial caseloads. We first address the differences in judges’ roles in Anglo-American and Continental legal systems. We then present our simple model for judicial misbehavior based on an understanding of judges as “satisficers”. Next we discuss the particularities of judicial errors and introduce a realistic and viable construct of “inexcusable judicial error”. On this basis we evaluate the impact of various incentive schemes on judicial behavior, focusing on the civil liability of judges. We conclude that civil liability for grave judicial errors is the most adequate remedy.     

The liability of the duressor

Liverpool Law Review - It has been argued that a better understanding of the nature of excuses gives rise to solutions to many problems concerning the liability of secondary parties. The duressor...     

简析《物权法》不动产登记机关的赔偿责任

《物权法》规定,房地产登记机关囚登记错误,给他人造成损害的,登记机构应当承担赔偿责任。但适并没有具体说明申请程序,责任性质和对损害赔偿的责任标准。就这些问题,笔者提出了一些的意见。登记机关如果登记错误,登记的权利状态不符合申请人提交的申请材料中的所请求的状态。审查的准则包括正式审查的立法和实质性审查。对损害赔偿责任的确定应取决于赔偿责任的构成要素,包括的主要内容和行为因素,此赔偿责任的标准应适用过错责任的原则。