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  1. Expediency, Legitimacy, and the Rule of Law: A Systems Perspective on Civil/Criminal Procedural Hybrids.Jennifer Hendry & Colin King - 2017 - Criminal Law and Philosophy 11 (4):733-757.
    In recent years an increasing quantity of UK legislation has introduced blended or ‘hybridised’ procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that, first, the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and, second, that such instrumental criminal justice strategies deliberately circumvent the enhanced procedural (...)
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  2. Public Wrongs and the Criminal Law.Ambrose Y. K. Lee - 2015 - Criminal Law and Philosophy 9 (1):155-170.
    This paper is about how best to understand the notion of ‘public wrongs’ in the longstanding idea that crimes are public wrongs. By contrasting criminal law with the civil laws of torts and contracts, it argues that ‘public wrongs’ should not be understood merely as wrongs that properly concern the public, but more specifically as those which the state, as the public, ought to punish. It then briefly considers the implications that this has on criminalization.
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  3. The Priority of Respect Over Repair.Gregory C. Keating - 2012 - Legal Theory 18 (3):293-337.
    Contemporary tort theory is dominated by a debate between legal economists and corrective-justice theorists. Legal economists suppose that tortfeasors and tortious wrongs are false targets for cheapest cost-avoiders and avoidable future losses. Corrective-justice theorists argue powerfully that the economic account of tort as search for cheapest cost-avoiders with respect to future accidents does not capture the most fundamental fact about tort adjudication, namely, that the reason we hold defendants liable in tort is that they have wronged their victims and should (...)
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  4. Misfeasance in a Public Office: A Tort Law Misfit?John Murphy - 2012 - Oxford Journal of Legal Studies 32 (1):51-75.
    This article explores the peculiarities of the tort of misfeasance in a public office from the perspective of two popular, contemporary theories of tort law: the rights-based theory of Robert Stevens, and the corrective justice theory of Ernest Weinrib. It identifies four significant problems of fit for these theories: viz, the fact that this tort does not protect a clearly defined private law right; the fact that its touchstones of liability include concepts that are highly unusual in tort law (such (...)
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  5. Insanity as a Tort Defence.James Goudkamp - 2011 - Oxford Journal of Legal Studies 31 (4):727-754.
    Unlike the criminal law, tort law does not recognize insanity as an answer to liability. The fact that a defendant was insane at the time of his impugned conduct is essentially ignored by tort law's liability rules. It will be argued that this situation is unsatisfactory. A person should not incur liability in tort in respect of acts committed while insane. This result should be realized by providing for a generally applicable affirmative defence of insanity.
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  6. Public and Private Wrongs.R. A. Duff & Sandra Marshall - 2010 - In James Chalmers, Fiona Leverick & Lindsay Farmer (eds.), Essays in Criminal Law in Honour of Sir Gerald Gordon. Edinburgh: Edinburhg University Press. pp. 70-85.
    Gordon's emphasizes that the process of prosecution is crucial to the idea of crime. One who commits a public wrong is properly called to public account for it, and the criminal trial constitutes such a public calling to account. The state is the proper prosecutor of crimes: since a crime is ‘our’ wrong, rather than only the victim's wrong, it is appropriate that we should prosecute it, collectively. The case is not simply V the victim, or P the plaintiff, against (...)
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  7. The Role of Causation in Decision of Tort Law.Robert C. Robinson - 2010 - Journal of Law, Development and Politics 1 (2).
    Tort law depends on three key concepts: causation, responsibility, and fault. However, I argue that the three key concepts are neither necessary, nor sufficient, for tort.
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  8. Is the Criminal Law (So) Special? Comments on Douglas Husak’s Theory of Criminalization.Re'em Segev - 2010 - Jerusalem Review of Legal Studies 1 (1):3-20.
    This is Re'em Segev's contribution to the symposium on Douglas Husak's book "Overcriminalization.".
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  9. The Comparative Nature of Punishment.Adam J. Kolber - 2009 - Boston University Law Review 89 (5):1565-1608.
    In tort and contract law, we calculate the harm a defendant caused a plaintiff by examining the plaintiff’s condition after an injury relative to his baseline condition. When we consider the severity of prison sentences, however, we usually ignore offenders’ baseline conditions. We deem inmates as receiving equal punishments when they are incarcerated for the same period of time under the same conditions, even though incarceration does not change their situations equally (unless they started out in identical circumstances). It is (...)
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  10. The Crime/Tort Distinction: Legal Doctrine and Normative Perspectives.Kenneth Simons - 2008 - Widener Law Journal 17:719-732.
    This essay provides an overview of the crime/tort distinction. It first investigates some of the fundamental differences between criminal law and tort law in doctrine and legal structure. It then explores some important similarities and differences in normative perspectives between the two doctrinal fields. This typology should prove analytically useful for examining some of the specific issues at the borderline of crime and torts—such as the proper scope of punitive damage liability and the question whether criminal law as well as (...)
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  11. Two Dimensions of Responsibility in Crime, Tort, and Moral Luck.Benjamin C. Zipursky - 2008 - Theoretical Inquiries in Law 9 (1):97-137.
    Parallel moral luck problems exist in three different normative domains: criminal law, tort law, and conventional moral thinking. In all three, the normative status of an actor’s conduct seems to depend on matters beyond the actor’s control. Criminal law has historically imposed greater punishment on the murderer who kills his intended victim than on the identically behaved would-be murderer whose shot fortuitously misses. Tort law imposes liability on the negligent driver who injures someone, but no liability if, through good fortune, (...)
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  12. Dimensions of Negligence in Criminal and Tort Law.Kenneth W. Simons - 2002 - Theoretical Inquiries in Law 3 (2).
    This article explores different dimensions of the concept of negligence in the law. The first sections focus on the fundamental distinction between conduct negligence, a conception that dominates tort law; and cognitive negligence, a conception that is much more important in criminal law. The last major section identifies five significant institutional functions served by a legal negligence standard: expressing a legal norm in the form of a standard rather than a rule; personifying fault; empowering the trier of fact to give (...)
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  13. Arthur Ripstein, Equality, Responsibility, and the Law.Larry Alexander - 2001 - Law and Philosophy 20 (6):617-635.
  14. Mens Rea in Tort Law.Cane Peter - 2000 - Oxford Journal of Legal Studies 20 (4):533-556.
    In ethical terms, intention is widely felt to be the strongest basis for the attribution of personal responsibility for conduct and outcomes. By contrast, in tort law intention is a much less important ground of liability than negligence. This article analyses the meaning of intention in tort law and its relationship to other concepts such as voluntariness, recklessness, motive, and belief. It also discusses difficulties associated with proving intention and other mental states, and the idea of a general principle of (...)
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  15. Negligence.Kenneth W. Simons - 1999 - Social Philosophy and Policy 16 (2):52.
    Negligence is both an important concept and an ambiguous one. Here I concentrate upon the sense of creating an unjustifiable, low-probability risk of future harm. This essay attempts to dispel theprevalent view that only a maximizing, utilitarian approach can render intelligible certain features of negligence analysis—its focus on the marginal advantages and disadvantages of the actor's taking a specific precaution, its consideration and balancing of the short-term effects of different actions, and its sensitivity to a multiplicity of factors. Perhaps certain (...)
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  16. Getting Even: Restitution, Preventive Detention, and the Tort/Crime Distinction.Randy E. Barnett - 1996 - Boston University Law Review 76:157-168.
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  17. The Tort/Crime Distinction: A Generation Later.Richard A. Epstein - 1996 - Boston University Law Review 76:1-21.
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  18. Beyond the Tort/Crime Distinction.David Friedman - 1996 - Boston University Law Review 76:103-112.
    I take it that the chief purpose of Professor Seipp's Paper' is to establish two propositions about the history of the tort/crime distinction: that the distinction goes back very far in English law, and that the distinction is based on whether the principal consequence of conviction was compensation of the victim or punishment of the offender. To me, however, the Paper is interesting for two other reasons: the similarities, in function more than form, between English law enforcement in the Middle (...)
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  19. Comment on the Crime/Tort Distinction: A Generation LAter.Michael C. Harper - 1996 - Boston University Law Review 76:23.
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  20. Getting Even: The Role of the Victim: JEFFRIE G. MURPHY.Jeffrie G. Murphy - 1990 - Social Philosophy and Policy 7 (2):209-225.
    Achilles is vindictive; he wants to get even with Agamemnon. Being so disposed, he sounds rather like many current crime victims who angrily complain that the American system of criminal justice will not allow them the satisfactions they rightfully seek. These victims often feel that their particular injuries are ignored while the system addresses itself to some abstract injury to the state or to the rule of law itself – a focus that appears to result in wrongdoers being treated with (...)
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  21. Non-Pecuniary (Idealistic) Damages in Tort. How to Break Up the Distinction Between a Internal and External View of Law.Karl Dahlstrand - unknown
    The traditional restrictive attitude towards claim for compensation about non-pecuniary harms in both cause law and legislation become weaker even if the theoretically and practically reason behind the old exception-construction remain. This reason can best be explained by the thesis about incommensurability when it comes to compensate for some losses that money cannot compensate. To explain why the exception-construction is problemized in recent days I think two circumstances has played an important role the materialisation of human rights as a consequence (...)
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