Mobsters and others engaged in risky forms of social coordination and coercion often communicate by saying something that is overtly innocuous but transmits another message ‘off record’. In both ordinary conversation and political discourse, insinuation and other forms of indirection, like joking, offer significant protection from liability. However, they do not confer blanket immunity: speakers can be held to account for an ‘off record’ message, if the only reasonable interpreta- tions of their utterance involve a commitment to it. Legal (...) liability for speech in the service of criminal behavior displays a similar profile of significant protection from indirection along with potential liability for reasonable interpretations. Specifically, in both ordinary and legal contexts, liability depends on how a reasonable speaker would expect a reasonable hearer to interpret their utterance in the context of utter- ance, rather than on the actual speaker’s claimed communicative intentions. (shrink)

The advent of Generative AI, particularly through Large Language Models (LLMs) like ChatGPT and its successors, marks a paradigm shift in the AI landscape. Advanced LLMs exhibit multimodality, handling diverse data formats, thereby broadening their application scope. However, the complexity and emergent autonomy of these models introduce challenges in predictability and legal compliance. This paper analyses the legal and regulatory implications of Generative AI and LLMs in the European Union context, focusing on liability, privacy, intellectual property, and cybersecurity. It (...) examines the adequacy of the existing and proposed EU legislation, including the Artificial Intelligence Act (AIA), in addressing the challenges posed by Generative AI in general and LLMs in particular. The paper identifies potential gaps and shortcomings in the EU legislative framework and proposes recommendations to ensure the safe and compliant deployment of generative models. (shrink)

This collection of contemporary essays by a group of well-known philosophers and legal theorists covers various topics in the philosophy of law, focusing on issues concerning liability in contract, tort and criminal law. The book is divided into four sections. The first provides a conceptual overview of the issues at stake in a philosophical discussion of liability and responsibility. The second, third and fourth sections present, in turn, more detailed explorations of the roles of notions of liability (...) and responsibility in contracts, torts and punishment. The collection not only presents some of the most challenging work in legal philosophy, but it also demonstrates the interdisciplinary character of the field of philosophy of law, with contributors taking into account recent developments in economics, political science and rational choice theory. This thought-provoking volume will help to shed light on the underexplored ground that lies between law and morals. (shrink)

Tort law and liability insurance have a complex interaction in which each shapes the evolution and effects of the other. This interaction and its many forms and facets in different international contexts must be comprehended to understand fully the ethical responsibilities of liability insurers. This essay builds on previous scholarship on the tort law–liability insurance interaction through a series of observations from the perspective of a global reinsurer. It seeks in part to extend previous analyses of this (...) interaction by also considering issues in the developing world. It seeks to make some normative questions and stances explicit concerning this interaction, as well as to identify some empirical questions that still need to be answered. The responsibility of liability insurers includes ethically shaping the responsibility of others in interaction with tort law in countless diverse situations. (shrink)

The current rise in malpractice litigation has led to concern in the research community as to the prospect of litigation against researchers. Clearly as the responsibility for the day-to-day conduct of the research falls upon the researchers they will be potentially liable should there be negligence in the conduct of the research project itself. But to what extent can the research ethics committee and its members be held liable should harm result to the research subject? How far does the prospect (...) of the threat of litigation equate with the reality of the prospect of liability? Although the NHS research governance framework suggests that primary responsibility for the conduct of the trial is with the researcher this does not mean that REC members will be immune from actions in tort where research subjects suffer harm in the conduct of a research project approved by their NHS REC. This paper focuses upon the prospect for liability in the law of tort of NHS RECs and their members. While in practice the vast majority of such claims are unlikely to be successful members of RECs may incur resultant legal costs as a consequence of involvement in proposed litigation. It is submitted that the scope of indemnity provision provided to RECs and their members should be precisely determined, otherwise there is a real prospect that the risk of malpractice litigation may deter individuals from serving on such committees. (shrink)

Many climate ethicists maintain that climate policy costs should be borne by those who historically emitted the most greenhouse gases. Some theorists have recently argued, however, that actors only became liable for emitting once the emissions breached legitimate legal regulation governing emissions. This paper challenges this view. Focusing on the climate responsibility of states, it argues that even if we assume that legitimate legal regulation is needed to remove excusable ignorance of entitlements to emit or is constitutive of such entitlements, (...) it does not follow that states should be exonerated from responsibility for all pre-legal emitting. This is because the pre-legal emissions may have violated moral duties not to behave recklessly and to promote the emergence of the relevant regulation. The paper closes by noting how grounding liability for emitting in such duties complicates the link between past emissions and liability. (shrink)

This paper examines some of the possible legal implications of the production, marketing and use of expert systems. The relevance of a legally useful definition of expert systems, comprising systems designed for use both by laymen and professionals, is related to the distinctions inherent in the legal doctrine underlying provision of goods and provision of services. The liability of the sellers and users of, and contributors to, expert systems are examined in terms of professional malpractice as well as product (...) liability. A recurring theme indicates that legislators may be inclined to restrict possibilities of liability suits in order to avoid disincentives to the creation of expert systems. (shrink)

We can usefully distinguish the conditions of criminal liability (those conditions which must be satisfied if a defendant is to be duly convicted, with which a criminal trial is concerned) from its preconditions (those conditions which must be satisfied if the trial, as a process which aims to determine whether or not this person is criminally liable, is to be legitimate at all). Some of these preconditions concern the defendant's status as a rsponsible citizen, who can properly be called (...) to answer, at the trial, to a charge of criminal wrongdoing. Two such preconditions are briefly sketched (whether this person is capable of answering the charge, and is answerable before this court). More attention is devoted to a third precondition: whether the law calls this person to answer in a language which is genuinely accessible to him, as a language which he could use in the first person. (shrink)

This article elaborates upon and defends the distinction between “primary duty” claims and “primary liability” claims in private law introduced in a previous article. In particular, I discuss the relevance of the distinction to the debates over fault and strict liability and “duty skepticism” and to the relationship between primary and remedial rights. I argue that the tendency to assume that all claims in private law arise from a breach of duty is a source of error and confusion. (...) As a prelude to the discussion, I set out an analysis of a claim or remedial right in private law as a Hohfeldian power correlated with a remedial liability. I also consider whether primary-liability claims can be formulated in terms of the legal relations found in Wesley Hohfeld's scheme, and I make some general comments about Hohfeldian analysis. (shrink)

One of the most striking features of Athenian laws regulating commercial activities is the absence of any concept akin to the modern legal notion of the partnership or corporation. Despite the presence in Athenian society of numerous koinoniai, groups of individuals cooperating for some purpose, be it commercial or otherwise, Athenian law concerned itself solely with individual persons and did not recognize the separate legal existence of collective entities. And just as Athenian law did not recognize the legal existence of (...) partnerships or corporations, it also did not possess the notion of corporate liability. This meant that if someone entered into an agreement with a group of individuals and one of those individuals violated the terms of the agreement, the plaintiff proceeded only against the individual who acted contrary to the agreement, not against the group as a whole. If the plaintiff won his suit, he only had a right to receive compensation from the defendant's private property; he did not have a claim on all the funds held in common by the group. (shrink)

David McCarthy has recently suggested that our compensation and liability practices may be interpreted as reflecting a fundamental norm to hold people liable for imposing risk of harm on others. Independently, closely related ideas have been criticised by Stephen R. Perry and Arthur Ripstein as incompatible with central features of negligence law. We aim to show that these objections are unsuccessful against McCarthy’s Risk–liability theory, and that such an approach is a promising means both for understanding the moral (...) basis of liability for negligence and for reasoning about possible reforms of the institution of negligence law. (shrink)

In recent years, the advancements made in the field of neuroscience have been echoed in criminal law, reigniting the discussion on culpability from the viewpoint of if it actually exists, considering the echoes of determinism on the re-found non-existence of free will. This discussion has triggered, once again, the issue of the boundaries and inter-relations between law and science, namely on whether normative or legal concepts and categories should acknowledge scientific breakthroughs. Bringing forth the theme of the limits of the (...) law, this discussion is able to provide insight, with reference to a specific problem, as to whether there are plausible legal answers in the context of the ascription of liability if the subject of law ceases to be a responsible—and thus free—person. Taking into consideration evolution both of science and criminal law dogmatic, we aim to argue that in the particular case of culpability, the desired autonomy of law has its limitations, and that without such limitations the ascription of liability would not have a correct answer. For this argument we will firstly approach the meaning of culpability as a milestone of subjective responsibility in criminal law, so that we can then analyse some arguments made regarding the impact of neuroscience on the maintenance of a concept of culpability with the meaning given above, so that lastly we can proceed to the rebuttal of the overarching impact of science on the law and advocate the autonomy of culpability within the necessary limits imposed by the needs of a plausible legal answer. (shrink)

At first glance, the first informed consent case to be decided by the High Court of Australia appears to be little more than a clear and simple description of the substantive law accepted in most American jurisdictions - although that is no small accomplishment in and of itself. In Rogers v. Whitaker, the highest court in Australia succinctly and persuasively rejected informed consent as a species of battery law, accepted it as a form, of ordinary professional negligence law, and adopted (...) the “American” patient-oriented standard for measuring the breach of a healthcare professional's duty to her or his patients. On second look, however, the opinion is an even more significant one because it reveals that the law of informed consent is now based on principles broad enough to create a duty on the part of healthcare providers to offer adequate health education to all of their patients. In Implicitly recognizing the physician's duty to educate her or his patients, the High Court's judgment is consistent with a view increasingly held In the medical and ethical communities that teaching patients about how to maintain their health is just as much a part of the doctor's function as diagnosing and treating disease. It may have taken 2,500 years for medicine to progress from, the Hippocratic notion that physicians should apply treatment to patients who are kept in blissful Ignorance of their condition and Its remedy, but there Is little doubt that medicine finally has entered a post-Hippocratic era. (shrink)

In this long-awaited book, Antony Duff offers a new perspective on the structures of criminal law and criminal liability. His starting point is a distinction between responsibility (understood as answerability) and liability, and a conception of responsibility as relational and practice-based. This focus on responsibility, as a matter of being answerable to those who have the standing to call one to account, throws new light on a range of questions in criminal law theory: on the question of criminalisation, (...) which can now be cast as the question of what we should have to answer for, and to whom, under the threat of criminal conviction and punishment; on questions about the criminal trial, as a process through which defendants are called to answer, and about the conditions (bars to trial) given which a trial would be illegitimate; on questions about the structure of offences, the distinction between offences and defences, and the phenomena of strict liability and strict responsibility; and on questions about the structures of criminal defences. The net result is not a theory of criminal law; but it is an account of the structure of criminal law as an institution through which a liberal polity defines a realm of public wrongdoing, and calls those who perpetrate (or are accused of perpetrating) such wrongs to account. (shrink)

This article analyses the legal basics of the Member States liability in damages for the breach of European Union law and the conditions for liability. It is emphasized that the Member States liability in damages for the breach of European Union law has three different grounds—one direct legal background (Article 4 of the Treaty of the European Union) and two indirect basics—principles of direct effect and that of effectiveness of European Union law. The author subsequently examines the (...) content of each condition for liability established in the practice of the Court of Justice of the European Union —the intention of the rule of European Union law infringed to confer rights on private parties, the sufficiently seriousness of the breach and the direct causal link between the breach and the damage. It is stated that in order to prove that a Member State is liable for the breach of European Union law, one more condition for liability should be established—a private party must prove that he has incurred particular damage. It is also highlighted that the second condition for the Member States liability in damages for the breach of European Union law —sufficiently seriousness of the breach—restricts the right of a private party to obtain compensation. (shrink)

Private law is generally formulated in terms of rightduty relation at all but on a or liability” relation. A primary-liability claim is not a claim arising from the breach of a strict-liability duty. The recognition of primary-liability claims does not involve skepticism about duties or rules or legal relations and it is consistent with the analysis of private law in terms of corrective justice.

The liability regime for officers and directors of German companies combines strict and lenient elements. Officers and directors are liable for simple negligence, they bear the burden of proof for establishing diligent conduct, and they are liable for unlimited damages. These elements are worrisome for the reason that managers are confronted with the full downside risk of the enterprise even though they do not internalize the benefits of the corporate venture. This overly strict regime is balanced by other features (...) of the regime, namely comprehensive insurance and systematic under-enforcement. Even though the authority to enforce claims against the management is divided between three different actors - the supervisory board, the shareholders assembly, and individual shareholders - enforcement has remained the exception. Furthermore, under the current system of Directors’ and Officers’ liability insurance, board members do not feel the bite of liability as they are protected by an insurance cover that is contracted and paid for by the corporation. Thus, the current German system may combine the worst of two worlds, i.e., the threat of personal liability for excessively high amounts of damages in exceptional cases, and the practical irrelevance of the liability regime in run-of-the-mill cases. The present Article analyzes the shortcomings of the present regime and submits proposals for reform. (shrink)

Errata slip inserted. Bibliography: p. 137-140.

This book examines two problems in Private law which are posed by the 'Good Samaritan': First, is an intervener under a legal duty to come to the aid of a fellow human being and does he incur any criminal or tortious liability if he fails to do so? Second, having intervened, is an intervener entitled to reimbursement of expenses, remuneration, reward, or compensation for any loss he might have suffered? Does or should the remedy depend on the success of (...) the intervention? The author examines and compares the varied responses of the Roman, French, German, and English legal systems to these problems. (shrink)

This article focuses on Grotius’s treatment of obligations arising from wrongdoing in his Inleidinge. The work has clear parallels with the natural law formulation of the same topic in De Jure Belli ac Pacis, and this article explores the extent of the similarities. It focuses on points of divergence, suggesting that the theoretical coherence of the natural law approach to obligations arising from wrongdoing was challenged primarily by extant legislative enactments. These provided either for region-specific doctrines, or rules that proved (...) difficult to reconcile with the underlying principles of natural law, especially the primacy of fault. While much of the Inleidinge’s treatment of liability arising from wrongdoing is consonant with Grotius’ approach to the topic in De Jure Belli ac Pacis, these discrete points of dissimilarity serve as a reminder of the limits of theoretical accounts of private law. (shrink)

This paper is a survey of the law in the United States which is applicable to consulting scientists and engineers. Based on the body of law which has developed for the construction industry and professional “advice-givers” such as attorneys, medical doctors and accountants, the paper reviews professional responsibilities in the areas of Common Law Torts. Common Law Contracts, certain U.S. Federal and State Statutes and the protection of sensitive information.

This article considers the interplay between intellectual property rights and classic property rights raised by Hoffman v. Monsanto (2005) and advances the idea that intellectual property law can serve as an autonomous source of liability for intellectual property owners. The article develops the conceptual advantages of demarcating physical and intellectual properties and allocating rights and responsibilities based on the respective property sphere. It introduces a theoretical Hohfeldian framework, in which the grant of a positive limited-term monopoly right entails a (...) corresponding duty, to establish intellectual property law as a source of internal limits on intellectual property rights. The article is a prolegomena to a detailed matrix of those rights and duties within intellectual property law. This matrix could support patentee duties that go beyond public disclosure of the invention and could establish patent law as an alternative legal framework to tort law to address harms caused by inventions. (shrink)

This looseleaf treatise concisely explains what all the codes and courts require with respect to the ethical responsibilities and legal duties of the defense counsel. Abuse of subpoena process, malpractice liability, disqualification, and other issues are discussed in the work.

Many recent decisions in tort law attempt to combine two conceptually incommensurable features: a traditional 'but for' test of factual causation, and the scientific or medical evidence that is required to explain how some injury occurred. Even when applied to macroscopic objects, the 'but for' test fails to identify causes, because it merely rephrases in the language of possible worlds what may be inferred from what is inductively known about the actual world. Since scientific theories explain the occurrence of events (...) without reference to causes, this test of causation is not only ineffectual but also inapplicable to scientific or medical evidence. Tort law, therefore, should abandon the 'but for' test; when scientific or medical evidence is required in a tort case, the courts should rely on the explanatory strategies that function within the theories from which they borrow such evidence. (shrink)

A considerable literature exists regard-ing the moral obligation to keep one's promises. Several authors have focused on the exceptional circumstances which may or should excuse this moral duty. Less frequently discussed is the question of how this general moral obligation and its possible exceptions play out in the context of negotiable written promises to pay money, i.e., so-called "commercial paper."This paper focuses on the application of the legal rules governing commercial paper, and on the ethical implications involved in the application (...) of those rules. More specifically, it asks whether the assertion of the technical doctrine known as "holder in due course," and the denial of that status in some cases, promotes ethical behavior in the marketplace. By examining the circumstances of one case, involving a substantial investment and a large bank, I hope to shed some light on how the legal and ethical rules do in fact "intersect.". (shrink)

A considerable literature exists regard-ing the moral obligation to keep one's promises. Several authors have focused on the exceptional circumstances which may or should excuse this moral duty. Less frequently discussed is the question of how this general moral obligation and its possible exceptions play out in the context of negotiable written promises to pay money, i.e., so-called "commercial paper."This paper focuses on the application of the legal rules governing commercial paper, and on the ethical implications involved in the application (...) of those rules. More specifically, it asks whether the assertion of the technical doctrine known as "holder in due course," and the denial of that status in some cases, promotes ethical behavior in the marketplace. By examining the circumstances of one case, involving a substantial investment and a large bank, I hope to shed some light on how the legal and ethical rules do in fact "intersect.". (shrink)

The authors are members of the British Association Committee on Social Concern and Biological Advances. Following earlier discussions of legal and social problems arising from certain medical advances, they undertook, independently, to examine the Law Commission's study.

: The paper discusses the contribution that the neuroscience of action can offer to the legal understanding of action control and responsibility in the case of adult individuals. In particular, we address the issues that follow. What are the cognitive capacities that agents must display in order to be held liable to punishment in criminal law? Is the legal model of liability to punishment compatible with a scientifically informed understanding of voluntary behaviour? To what extent should the law take (...) into account people’s subjective feelings about their own actions? As a result of our analyses, we indicate some areas where the contribution of the neuroscience of action to the law is potentially relevant. We focus on the subjectivity mechanisms of action control, specifically the requirement that the agent must violate the law voluntarily in order to be held responsible, and on the factors that modulate the wrongdoer’s experience of agency. Overall, we advocate more cross-disciplinary work, aimed to bridge the gap between conceptual boundaries, on the theme of responsibility for actions. Keywords : Responsibility; Neurolaw; Sense of Agency; Criminal Law; Criminal Liability La responsabilità tra neuroscienza e diritto penale. La componente di controllo dell’imputabilità penale Riassunto : L’articolo discute il contributo che la neuroscienza dell’azione può offrire ai temi del controllo dell’azione e della responsabilità in ambito legale, nel caso degli individui adulti. In particolare, ci occuperemo delle questioni che seguono. Quali sono le abilità cognitive che un agente deve possedere per esser considerato penalmente responsabile e quindi punibile? Il modello legalistico della responsabilità è compatibile con il modello scientifico-naturalistico del comportamento umano? Fino a che punto variazioni nel senso di controllo soggettivo sulle azioni dovrebbero essere considerate un parametro rilevante in sede penale? Sulla scorta della nostra analisi, indicheremo alcune aree nelle quali il contributo della neuroscienza dell’azione a questioni legate al tema della responsabilità legale potrebbe rivelarsi rilevante. L’articolo si concentra sui meccanismi che regolano il senso soggettivo di controllo dell’azione – in particolare il requisito secondo il quale l’agente deve violare la legge volontariamente per essere ritenuto responsabile –, e sui fattori che modulano il senso di agentività del colpevole. In conclusione, difenderemo l’appropriatezza di una più ampia riflessione multi-disciplinare volta a ridurre le incompatibilità fra differenti approcci al tema della responsabilità per le nostre azioni. Parole chiave : Responsabilità; Neurodiritto; Senso di agentività; Diritto penale; Imputabilità penale. (shrink)

This article analyses that state responsibility in international law is contractual liability, as a state infringes its obligations to another state (states), stemming out of international law. Member State liability in damages to a private party for breach of European Union law is, contrarily, non-contractual liability to a private party. Having analysed the elements of internationally wrongful act, it is stated that the elements of internationally wrongful act can be used to determine the elements of breach of (...) the European Union law. Thus if an international court declares that a state committed an internationally wrongful act, it would be possible to maintain that the elements of breach of the European Union law are met as well. The author of this article notes that it is very important to identify a particular state institution, which has infringed the European Union or international law, as not attributing to the state the acts of the state institution under the European Union or international law, there should be no possibility to apply state liability in damages to a private party for breach of the European Union law or state responsibility in international law – the state can be liable only for acts of its institutions. This article also analyses the cases where application of both Member State’s liability in damages to a private party for breach of the European Union law and state responsibility in international could be possible. In such case a private party can suffer damages if a Member State breaches an international agreement, concluded by the European Union, imposing particular obligations on that Member State. Therefore, it is ascertained that a private party should not have to prove the second condition of liability – sufficient seriousness of the breach1 – if an international court foremost states that a Member State commited an internationally wrongful act – breached its obligation arising out of an international agreement entered into by the European Union. Such an infringement would be considered to be as sufficiently serious per se. (shrink)

The article deals with the concept of the court’s fault in the action for damages against a state suffered due to infringement of European Union law. The author searches for the right position of the criterion in the system of the conditions of state liability and discusses whether European Union law establishes a uniform standard of fault, or at least the guidance on the application of the criterion that would enable uniform national judicial practices concerning state liability for (...) the infringements attributable to the courts of last instance. The article also analyses national legal regulation and jurisprudence of several Member States such as France, Belgium and Italy, providing the definitions of different forms of fault and (or) examples of their practical implementation. (shrink)