The values that we confront in legal decision-making often appear incommensurable. Some legal the... more The values that we confront in legal decision-making often appear incommensurable. Some legal theorists resist the possibility of incommensurability because it is feared that it presents an overwhelming obstacle to rational decision-making. However, in offering a close analysis of what is meant by proportional value satisfaction, I show that this fear is unfounded. Comparative measures of proportional value satisfaction do not require the values to be commensurable. I also show that the public significance of proportional value satisfaction, best achieved by equal proportional value satisfaction, is most appropriately implemented by a process attending to defeasible legal rules. Unlike a single-staged rule, a multi-staged defeasible rule, where claims are made seriatim by different parties with a personal authority that exists apart from the overall truth of the rule which supports the claim, provides the needed bi-lateral structure that respects the equal standing of the parties.
ABSTRACT De sociale of maatschappelij- ke waarde van ouderdoms- pensioen wijkt af van de waarde d... more ABSTRACT De sociale of maatschappelij- ke waarde van ouderdoms- pensioen wijkt af van de waarde die daar door een in- dividu met zijn individuele levensverwachting aan ge- hecht kan worden. In dit op- zicht zijn pensioenen te ver- gelijken met levensreddende technologieën en wijkt een ouderdomspensioenverzeke- ring af van andere verzeke- ringen. Het artikel van Chapman is gestoeld op de Amerikaanse praktijk, jurisprudentie en regelgeving. Bij lezing dient men er op bedacht te zijn dat de Nederlandse context op onderdelen fundamenteel af- wijkt van de Amerikaanse. Inleiding van de redactie
ABSTRACT This article is the text of an introductory address presented at the Faculty of Law on 2... more ABSTRACT This article is the text of an introductory address presented at the Faculty of Law on 23 October 2009 in celebration of Professor Ernest Weinrib's receiving the 2009 Killam Prize, Canada's most distinguished annual award for outstanding scholarly achievement. It offers a very personal interpretation of the contributions that Weinrib has made to private-law scholarship over the last thirty years and is organized around three closely related questions that he has addressed in his work: What is a theory? What is a theory of law? and What is a theory of private law? His answers to these different questions land Weinrib in three different worlds — the world of the university, the world of the law school, and the world of legal practice — but it is Weinrib's special contribution as a legal philosopher to have brought all three much closer together.
ABSTRACT In the 1993-94 Term the Supreme Court of Canada decided nine torts cases. Some of the is... more ABSTRACT In the 1993-94 Term the Supreme Court of Canada decided nine torts cases. Some of the issues treated in these decisions raise fundamental questions for the proper understanding of tort law. Three of these, Cunningham v. Wheeler, Cooper v. Miller, and Shanks v. McNee, all concerned the vexing question of when to deduct collateral benefits from damages, and were dealt with under one set of judgments. Two others, Brown v. British Columbia (Minister ofTransportation and Highways) and Swinamer v.Nova Scotia (Attorney General), both of which concerned negligence actions against public authorities, while treated separately in different judgments, involved much overlap in the judicial opinions offered. This review of the 1993-94 Term will deal with these five cases in some detail in Parts II and III. This leaves four cases, each of which received independent treatment from the Court. Two of these Gibney v. Gilliland and Granville Savings and Mortgage Co. v. Slevin are hardly worth a mention. However, the remaining two tort cases the Court chose to during hear this Term are more interesting. The first of these, Galaske v. O'Donnell, which dealt with a driver's duties to ensure that child passengers wear seat-belts, is discussed briefly in Part IV. The other case, Toneguzzo-Norvell v. Burnaby Hospital, which dealt with measures of damages, including measures of lost earnings that might reflect systemic future discrimination against female infant plaintiffs, is discussed at more length in Part V.
Our intuitions can conflict when choosing between saving one person from a loss and a larger numb... more Our intuitions can conflict when choosing between saving one person from a loss and a larger number of persons from each suffering that same loss, or some smaller loss. When the loss is the same we think that a larger number of persons suffering the loss makes the situation worse and should be decisive for saving them. But when their individual losses are smaller, or different, their greater number sometimes seems not to count at all in what we should choose. I analyze whether this intermediate position, where the numbers only sometimes count, is coherent. Using Frances Kamm’s interpretation of John Taurek’s argument (that the numbers never count), I show that we can deny Taurek’s No Worse Claim (so that the numbers sometimes count) and yet accept his Individual Loss Claim (so that the numbers do not always count), but only if we give up comparing losses across persons under cardinal unit commensurability. Instead we should use interpersonally non-comparable ratio scale measures, so...
The values that we confront in legal decision-making often appear incommensurable. Some legal the... more The values that we confront in legal decision-making often appear incommensurable. Some legal theorists resist the possibility of incommensurability because it is feared that it presents an overwhelming obstacle to rational decision-making. However, in offering a close analysis of what is meant by proportional value satisfaction, I show that this fear is unfounded. Comparative measures of proportional value satisfaction do not require the values to be commensurable. I also show that the public significance of proportional value satisfaction, best achieved by equal proportional value satisfaction, is most appropriately implemented by a process attending to defeasible legal rules. Unlike a single-staged rule, a multi-staged defeasible rule, where claims are made seriatim by different parties with a personal authority that exists apart from the overall truth of the rule which supports the claim, provides the needed bi-lateral structure that respects the equal standing of the parties.
ABSTRACT De sociale of maatschappelij- ke waarde van ouderdoms- pensioen wijkt af van de waarde d... more ABSTRACT De sociale of maatschappelij- ke waarde van ouderdoms- pensioen wijkt af van de waarde die daar door een in- dividu met zijn individuele levensverwachting aan ge- hecht kan worden. In dit op- zicht zijn pensioenen te ver- gelijken met levensreddende technologieën en wijkt een ouderdomspensioenverzeke- ring af van andere verzeke- ringen. Het artikel van Chapman is gestoeld op de Amerikaanse praktijk, jurisprudentie en regelgeving. Bij lezing dient men er op bedacht te zijn dat de Nederlandse context op onderdelen fundamenteel af- wijkt van de Amerikaanse. Inleiding van de redactie
ABSTRACT This article is the text of an introductory address presented at the Faculty of Law on 2... more ABSTRACT This article is the text of an introductory address presented at the Faculty of Law on 23 October 2009 in celebration of Professor Ernest Weinrib's receiving the 2009 Killam Prize, Canada's most distinguished annual award for outstanding scholarly achievement. It offers a very personal interpretation of the contributions that Weinrib has made to private-law scholarship over the last thirty years and is organized around three closely related questions that he has addressed in his work: What is a theory? What is a theory of law? and What is a theory of private law? His answers to these different questions land Weinrib in three different worlds — the world of the university, the world of the law school, and the world of legal practice — but it is Weinrib's special contribution as a legal philosopher to have brought all three much closer together.
ABSTRACT In the 1993-94 Term the Supreme Court of Canada decided nine torts cases. Some of the is... more ABSTRACT In the 1993-94 Term the Supreme Court of Canada decided nine torts cases. Some of the issues treated in these decisions raise fundamental questions for the proper understanding of tort law. Three of these, Cunningham v. Wheeler, Cooper v. Miller, and Shanks v. McNee, all concerned the vexing question of when to deduct collateral benefits from damages, and were dealt with under one set of judgments. Two others, Brown v. British Columbia (Minister ofTransportation and Highways) and Swinamer v.Nova Scotia (Attorney General), both of which concerned negligence actions against public authorities, while treated separately in different judgments, involved much overlap in the judicial opinions offered. This review of the 1993-94 Term will deal with these five cases in some detail in Parts II and III. This leaves four cases, each of which received independent treatment from the Court. Two of these Gibney v. Gilliland and Granville Savings and Mortgage Co. v. Slevin are hardly worth a mention. However, the remaining two tort cases the Court chose to during hear this Term are more interesting. The first of these, Galaske v. O'Donnell, which dealt with a driver's duties to ensure that child passengers wear seat-belts, is discussed briefly in Part IV. The other case, Toneguzzo-Norvell v. Burnaby Hospital, which dealt with measures of damages, including measures of lost earnings that might reflect systemic future discrimination against female infant plaintiffs, is discussed at more length in Part V.
Our intuitions can conflict when choosing between saving one person from a loss and a larger numb... more Our intuitions can conflict when choosing between saving one person from a loss and a larger number of persons from each suffering that same loss, or some smaller loss. When the loss is the same we think that a larger number of persons suffering the loss makes the situation worse and should be decisive for saving them. But when their individual losses are smaller, or different, their greater number sometimes seems not to count at all in what we should choose. I analyze whether this intermediate position, where the numbers only sometimes count, is coherent. Using Frances Kamm’s interpretation of John Taurek’s argument (that the numbers never count), I show that we can deny Taurek’s No Worse Claim (so that the numbers sometimes count) and yet accept his Individual Loss Claim (so that the numbers do not always count), but only if we give up comparing losses across persons under cardinal unit commensurability. Instead we should use interpersonally non-comparable ratio scale measures, so...
This chapter offers a slightly different account of what corrective justice requires for the paym... more This chapter offers a slightly different account of what corrective justice requires for the payment of monetary damages. Specifically, it argues that while corrective justice does require full compensation for the costs of future care, at least in so far as these involve pecuniary losses, and does require full compensation for the loss of future earnings, it does not require full compensation for non-pecuniary losses. This is true despite the fact that such losses have been caused by the defendant’s wrongdoing, and lie within its ambit. The reason for this is that corrective justice corrects for wrongdoing within the space of rights, not welfare. While welfare under the aspect of rights is ultimately attended to by a damages award under corrective justice, the fact that monetary damages can have no utility for the correction of non-pecuniary welfare losses under this aspect is decisive against the award of such damages.
Uploads
Videos by Bruce Chapman
Papers by Bruce Chapman