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Regulating Risk Through Private Law sets out, for nine significant legal systems, an overarching conception of risk in legal theory, particularly of the linked role of risk-taking in generating liability and in liability regulating risk. It examines and explains what risk-based reasoning adds to private law. Taking tort law as the core case study, the book analyses national variation in risk understanding, liability, culture and regulation and from that, develops a legal framework for understanding and responding to risk. Then, looking beyond tort, the volume examines the contextual and cultural setting of different risks and how different legal systems seek to regulate them. The volume draws on more than 25 leading scholars of private law and risk from around the world to develop a coherent and systematic study of risk. The legal systems included span the common law and civil law, large and small, codified and uncodified, as well as those with wider and narrower strict liability rules and causation rules.
Law in the Risk Society, ed. by Ubaldus de Vries and John Fanning, Hague: Eleven International Publishing
Regulating Risk and a Theory of Social Reflexivity of Law2017 •
The main claim in this contribution is that major problems of the present risk-based regulating polices are caused by the fact that they are built upon questionable and uninformed theoretical assumptions on risk. In their approach to the problems of the nature of risk and its proper regulation, these policies seem to ignore what has been said on these issues in social theory over the past decades, particularly since the publication of Ulrich Beck’s renowned Risikogesselschaft in 1986. Thus, in this contribution, I explore how Beck’s ideas, together with a follow-up discussion in current sociology, may contribute to making such regulatory policies theoretically more robust, pragmatically more efficient, and politically more acceptable. One can point our two aspects in which Beck’s theory of risk society and social reflexivity may be particularly useful in that respect, and which the existing official programmes of risk regulation are surprisingly lacking. The first point is the very notion of risk: what is risk and how it is defined? The second point refers to the question about suitable strategies for responding to various kinds of risk. As I shall explain, a reaction to risk may occur at different institutional levels (at both the global and local level), and with varying attitudes (precautionary – proactive). In both these aspects, current risk regulating policies are grounded in beliefs that may be said to be (potentially) highly disputable, yet that are hardly (actually) disputed. Beck’s theory, together with sociological debates it inspired, may inspire such a discussion. As a theoretical enterprise, it will not directly provide principles of how to choose a proper regulatory strategy, but it may deliver a reliable analytical framework, indicating the existing alternatives in this field.
This paper examines economic effects of the law in shifting risk bearing in our society. Shifts in risk-bearing have an impact upon the efficient allocation of resources, income distribution and economic growth. Particular attention is given to risk spillovers or externalities that are sanctioned by law. Some of the possible consequences of such spillovers for economic efficiency are discussed using the Kaldor-Hicks criterion. Examples are given in which the law encourages excessive risk spillovers from an efficiency point of view. It is also pointed out that in a few cases the law may lead to an excessive reduction in risk-taking from a social point of view. It is observed that the legal practice of compensating for actual damages sustained rather than for the risks of damages, involves least expected cost to parties creating the risk. On the question of product-liability, it is noted that strict liability is becoming more common. While on efficiency grounds a case can be made out for strict liability in special circumstances, the efficiency arguments for it do not appear to be strong. Arguments in favour of strict product liability seem to rest more heavily on income distribution implications. Two income distributional arguments in favour of strict product-liability are outlined.
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ucd.ie
Liability as RegulationThere are longstanding claims in the North American literature that civil liability can be regarded as a form of regulation (eg Rose-Ackerman 1991, Viscusi 2002) or ombudsman (Linden, 1973 & 1983) over public authorities and the fulfilment of their missions. These are important claims, both analytically and practically. They take us some distance away from corrective justice model of liability as being concerned with attributing responsibility and granting redress which still prevail in the European and other common law jurisdictions ( ...
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