Le matérialisme que ce livre interroge et construit n'est pas une « philosophie », mais la condition de possibilité et l'outil de la connaissance objective. Historiquement, il se confond, de fait, avec l'élaboration de la science moderne s'affranchissant graduellement des contrats de parole qui l'asservirent longtemps à la métaphysique et à la théologie. Comment cette émancipation s'est-elle effectuée en des temps où une croyance instituée dictait sa loi théologico-politique aux efforts de la connaissance en leur imposant a priori la limite (...) de l'Inconnaissable? Comment d'autre part, face à cet affranchissement toujours inachevé, une métaphysique résiduelle impose-t-elle encore aux artisans de la connaissance objective, sans qu'ils s'en doutent, des cadres, des frontières, des démarches et des représentations? Ce livre montre qu'une analyse savante des complexes de discours dans l'histoire, à travers ce qu'elle explique du passé, peut permettre de comprendre et d'améliorer ce qui constitue proprement aujourd'hui l'acte de connaître. De redéfinir la « conscience ». De sortir des leitmotivs exténués sur le « hasard ». De penser plus authentiquement la singularité émergente du vivant. De s'éloigner d'un modèle strictement nécessitariste du « déterminisme ». De sortir des impasses avérées du réductionnisme. De résoudre les contradictions tacitement acceptées entre matérialisme et morale, ou entre déterminisme et conduites autonomes. D'entrevoir l'origine du symbolisme. De comprendre la nature originellement et fondamentalement politique de la religion. De penser l'articulation évolutive entre « nature » et « civilisation », et un lien cohérent et critique entre sciences de la nature et sciences de la société. D'identifier les comportements discursifs récurrents de ce que l'on nomme l'« idéologie ». Et d'édifier sur de nouvelles bases une histoire naturelle et sociale de la liberté. Revenant sur une part essentielle de son oeuvre, Patrick Tort invite ici à une véritable réforme logique de l'initiative de connaissance, et, simultanément, à instruire la méthode capable d'éclairer les mécanismes qui la favorisent et la combattent dans l'univers infini des discours. (shrink)

Contemporary bio-ethics shares with the ancient tradition of natural theology the characteristic of assuming, in the face of the advances of a fundamentally materialist science, an opportunistic function, which is that of the adaptive rescue of spiritual values. Bioethical humanism exists only in the process of this perpetual movement of repossession, and its effort, established to this effect, leads back incoherently to the interminable dualistic confrontation between science and conscience, having failed to take upon itself the task of constructing a (...) rationally-informed thinking on the relationships between the order of development of positive knowledge and the order of development of moral feelings, both in human evolution and in the history of societies. These matters hardly concern today's fashionable philosophers, whose dominant preoccupation seems to be to find a still-unfilled job - something between an esoteric magus and a preacher in vogue - on the great stage of the inessential upon which inconsequential thought is exhibited. (shrink)

Patrick Tort, An lntroduction to Darwininian Anthopology. An lnterview with Georges Guille-Escuret. - Recalling how his book La pensée hiérarchique et l’evolution had, in 1983, reoriented the field of the interpretation of Darwinism, P. Tort contrasts “social Darwinism”- which was wrongly thought to be its consequence -with the very different truth represented by the anthropology of Darwin, which opens new perspectives for reflexion on the nature/culture and nature/society relationships. For over a century, this truth was not perceived, not even by (...) Marx and Engels. The selft-eliminating process of selection which takes place within “civilized” societies, is calles by P. Tort the reversive effect of evolution. The method used in this work -the analysis of discursive complexes- should make is possible, through its later developments, to resolve, notedly in matters of classification, a certain numbers of key problems that have been raised by the traditional or estructuralist approaches to the “history of ideas”. (shrink)

In order to leave our debate open, it is important to end with a potentially crucial encounter between two domains whose representatives have not yet engaged in direct dialogue. Epistemology and anthropology, indeed, have many ideas to exchange and interactions to stimulate, particularly insofar as both of them consider the relations between a science of nature and a science of humankind.

How « the Father » became the cause of the pathologies affecting the family. When, in the 1960s, fathers lost their control over procreation and their control over women and children, some cracks started to appear in the edifice of patriarchal domination. There followed a reaction in which all the disorders today troubling the order of the family came to be traced back to this eclipse of the father figure. From this there emerged a veritable « State psychological apparatus » (...) whose aim was the sanctification of the traditional domestic functions : the father as the figure of authority, the mother as carer. Indifferent to its social and historical dimensions, Oedipus assumed the status of a, presumably universal, « symbolic order », dominated by the father and master. MT here calls into question the entire conceptual order of Lévi-Strauss and Lacan : the idea that the foundation of power and reason is naturally a masculine prerogative. Above all else, the article calls into question the interpretation put forward by Pierre Legendre, which assigns to a (patriarchal) juridical order the task of structuring the psyche. (shrink)

Background Euthanasia is a controversial practice in many countries. Since Spain’s Euthanasia Law came into effect on March 24, 2021, healthcare providers have faced a new challenge since they must inform patients, provide care, accompany them, and implement the law. It also represents a new stumbling block at universities, which must adapt to regulatory changes and educate future professionals accordingly. Little is known about the attitude of nursing students in Spain toward euthanasia since this law was implemented. Objective This study (...) aims to answer the following research questions: What is the attitude of nursing students toward euthanasia? What factors influence this attitude? Research design A cross-sectional study was conducted using an online questionnaire. Participants and research context The study population comprised all nursing students at a public university in Barcelona ( n = 444), Spain, during the 2022–2023 academic year. The validated Spanish version of the Euthanasia Attitude Scale was employed. A bivariate analysis was performed. Ethical considerations The university Ethics Committee (CEEAH 6247) approved this study. All participating students signed an informed consent form. Participation was voluntary, and data anonymity and confidentiality were guaranteed. Results Two hundred and forty-four nursing students responded to the questionnaire. The mean total score was 79.64. Participants with religious beliefs presented lower scores, indicating a more negative attitude toward euthanasia. Participants in their second, third, or fourth year of the nursing degree scored higher, demonstrating a more positive attitude. Conclusions The attitude of nursing students toward euthanasia was remarkably positive. Working on ethical content during the degree course and clinical practice are factors that help to develop a more positive attitude. In addition, nursing education should encourage professional aspects to prevail over religious beliefs in euthanasia situations. (shrink)

A partir del trabajo de campo realizado con el alumnado de educación secundaria del proyecto I+D “Demoskole: Democracia, participación y educación inclusiva en los centros de secundaria”, el presente artículo, en primer lugar, describe el concepto de democracia escolar, para en segundo lugar, dar a conocer qué es y cómo se concibe un centro de educación secundaria democrático a partir del reconocimiento del papel del alumnado.

El presente artículo propone un análisis sobre el impacto del movimiento feminista universitario nucleado en la Red Interuniversitaria por la Igualdad de Género y contra las Violencias (RUGE), del Consejo Interuniversitario Nacional (CIN), en el sistema universitario argentino. Para ello se trabajó con datos cuantitativos provenientes de un diagnóstico sobre la implementación de políticas de género en las instituciones universitarias realizado por la RUGE en 2020. El diagnóstico relevó información de 60 universidades nacionales y provinciales sobre políticas de género y (...) las acciones colectivas para llegar a producir e implementar esas políticas. En relación con los resultados, observamos que el movimiento feminista universitario, en pocos años, pudo generar cambios en las instituciones de educación superior promoviendo protocolos de actuación frente a situaciones de discriminación y violencia de género, capacitaciones sobre la temática en el marco de la “Ley Micaela” y espacios institucionales para garantizar las políticas de género. No obstante, también se detectaron obstáculos relevantes para el crecimiento y promoción de las políticas de género que se podrían traducir en los futuros desafíos de las feministas universitarias. (shrink)

BackgroundSex and gender differences are often overlooked in research design, study implementation and scientific reporting, as well as in general science communication. This oversight limits the generalizability of research findings and their applicability to clinical practice, in particular for women but also for men. This article describes the rationale for an international set of guidelines to encourage a more systematic approach to the reporting of sex and gender in research across disciplines.MethodsA panel of 13 experts representing nine countries developed the (...) guidelines through a series of teleconferences, conference presentations and a 2-day workshop. An internet survey of 716 journal editors, scientists and other members of the international publishing community was conducted as well as a literature search on sex and gender policies in scientific publishing.ResultsThe Sex and Gender Equity in Research (SAGER) guidelines are a comprehensive procedure for reporting of sex and gender information in study design, data analyses, results and interpretation of findings.ConclusionsThe SAGER guidelines are designed primarily to guide authors in preparing their manuscripts, but they are also useful for editors, as gatekeepers of science, to integrate assessment of sex and gender into all manuscripts as an integral part of the editorial process. (shrink)

This article offers arefutation of the corrective justiceinterpretation of tort law – the view that itis essentially a system of corrective justice. It introduces a distinction between primary andsecondary tort duties and claims that tort lawis best understood as the union of its primaryand secondary duties. It then advances twoindependent criticisms of the correctivejustice interpretation. The article firstargues that primary tort duties have nothingfundamentally to do with corrective justice andthat, if one understands what is meant by``primary tort duties,'' one is (...) compelledto regard this fact as a decisive objection tothe corrective justice interpretation. Second,it argues that, whatever relation thereis between secondary tort duties and correctivejustice, that relation also holds betweencorrective justice and secondary duties ofother legal branches. In sum, the concept ofcorrective justice is neither capable ofunifying tort law nor of demarcating it fromother legal branches.The article also offers a general alternativeinterpretation of tort law. Rather thanbeing essentially corrective, tort law isessentially protective. Under this picture, iftort law has a most important point, it is theprotection of legal subjects and valuablesocial interests from harm. This is theoverarching ambition that unifies primary andsecondary tort duties. It does not, however,demarcate tort law from other legal branches. (shrink)

El objetivo del estudio es averiguar el grado de conocimientos previos sobre los ODS y la Agenda 2030 de los discentes en formación inicial docente para los Grados de Maestro en Educación Primaria, Maestro en Educación Infantil y Máster en Educación Secundaria de la Universitat de València. Para ello, dentro del marco de un proyecto de Innovación Docente, se administró a los participantes un inventario de conocimientos previos. Finalmente, los resultados fueron analizados y comparados con el objetivo de mejorar futuras (...) intervenciones sobre sostenibilidad e innovación curricular. (shrink)

IntroductionTranscranial magnetic stimulation is a consolidated procedure for the treatment of depression, with several meta-analyses demonstrating its efficacy. Theta-burst stimulation is a modification of TMS with similar efficacy and shorter session duration. The geriatric population has many comorbidities and a high prevalence of depression, but few clinical trials are conducted specifically for this age group. TBS could be an option in this population, offering the advantages of few side effects and no pharmacological interactions. Therefore, our aim is to investigate the (...) efficacy of TBS in geriatric depression.Clinical trial registration[https://clinicaltrials.gov/ct2/], identifier [NCT04842929]. (shrink)

The last twenty-five years or so of thought about tort law have been remarkably productive and dynamic, as the dominance of the law and economics model has been challenged by theories that reintroduce the language of corrective justice. Over this same time period, theorizing about corrective justice has sprung up in response to a wide range of social, political and moral issues. I have in mind work on restorative theories in criminal justice; on postwar justice; on truth commissions, political reconciliation (...) and transitional justice in contexts of regime change; on official apologies as responses to international crises, institutionalized abuse and historical injustices; and on interpersonal apology, the making of amends, and forgiveness as responses to everyday moral transgressions. In these writings, theorists explore what people owe to one another in the aftermath of various kinds of wrongdoing, and thereby subtly challenge our ideas about what should be included under the heading of corrective justice. One new strand of thought, which appears in many of these debates, suggests that corrective justice requires a form of reconciliation or relational repair. My goal in this chapter is to introduce this idea and explore what it might offer to the philosophy of tort law. (shrink)

The law of torts is concerned with the secondary obligations generated by the infringement of primary rights. This work seeks to show that this apparently simple proposition enables us to understand the law of torts as found in the common law. Using primarily English materials, but drawing heavily upon the law of other common law jurisdictions, Stevens seeks to give an account of the law of torts which relies upon the core material familiar to most students and (...) practitioners with a grasp of the law of torts. This material is drawn together in support of a single argument in a provocative and accessible style, and puts forward a new theoretical model for analysing the law of torts, providing an overarching framework for radically reconceiving the subject. (shrink)

This book collects John Gardner's celebrated essays on the theory of private law, alongside two new essays. Together they range across the central puzzles in understanding the significance of outcomes, the role of justice in private law, strict liability, the reasonable person standard, and the role of public policy in tort law.

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 law of torts is concerned with the secondary obligations generated by the infringement of primary rights. This work seeks to show that this apparently simple proposition enables us to understand the law of torts as found in the common law. Using primarily English materials, but drawing heavily upon the law of other common law jurisdictions, Stevens seeks to give an account of the law of torts which relies upon the core material familiar to most students and (...) practitioners with a grasp of the law of torts. This material is drawn together in support of a single argument in a provocative and accessible style, and puts forward a new theoretical model for analysing the law of torts, providing an overarching framework for radically reconceiving the subject. (shrink)

According to the established orthodoxy, the law of private wrongs—especially common law torts—fails to map onto our moral universe. Four objections in particular have caught the imagination of skeptics about the moral foundations of tort law: They purport to cast doubt over the moral appeal of the duty of care element; they target the seemingly inegalitarian objective standard of care; they object to the morally arbitrary elements of factual causation and harm; and they complain about the unnecessary extension of (...) liability under the guise of the proximate cause element. Analyzing these four prevailing arguments concerning the a-moral (and, with regard to some interpretations, anti-moral) character of tort law, I shall seek to show that the normative structure of tort law can, nonetheless, be reconstructed so as to reflect, to an important extent, our considered judgments about basic moral principles. (shrink)

Tort Wars brings together the diverse and usually insufficiently related strands of tort law and treats the moral, economic, and systemic problems running through those strands with a single analysis and theory. In that tort law employs theory at all, it is typically theory measured against notions of corrective justice or appeals to utility. Both have severe prescriptive restrictions and limited explanatory power and often stray from any useful description of tort cases in the courts. Tort Wars looks at the (...) nature of dispute resolution techniques, criticizes the blasé justice and more esoteric utility theory, and examines the problems of both the legal academy and the veracity vacuum in the courtroom. Further, it explores the conceptual differences between tort and contract, locating contract as a subset of tort. It uses examples drawn from the edges of tort law in an attempt to measure central cases by the marginal ones and to provide a barometer of emerging legal and social change, achieved through imposing an individualized peace. (shrink)

This paper examines moral problems that arise when assigning liability in causally problematic mass exposure tort cases. It examines the relevance of different conceptions of corrective justice for such assignments of liability. It explores an analogy between the expressive role of punishment and the expressive role of tort, and argues that the imposition of liability in causally problematic mass exposure cases can be justified by appeal to expressive considerations.

What is the proper role of cost-benefit analysis in understanding the tort concept of negligence or reasonable care? A straightforward question, you might think. But it is a question that manages to elicit groans of exasperation from those on both sides of the controversy. For most utilitarians and adherents to law and economics, the answer is obvious: to say that people should not be negligent is to say that they should minimize the sum of the costs of accidents and the (...) costs of preventing accidents. Under the economic formulation of the famous Learned Hand test, they should take a precaution if but only if the marginal costs (or burden, B) of that precaution are less than its marginal benefits (in the form of reduced risks of injury, measured by multiplying the probability (P) of the injury times the magnitude (L) of the injury if it occurs). If B>PxL, it would be absurd to require the greater expenditure, B. For many advocates of a fairness, corrective justice, rights-based, or contractualist perspective, the opposite answer is equally obvious. Permitting a person to impose risks of harm on others merely because he would thereby obtain a benefit (or would otherwise incur a burden) greater than the discounted value of the harm he might inflict, amounts to authorizing him to dump the costs of his risky activities on innocent victims. To permit this type of sacrifice of individuals on the altar of aggregate social welfare is morally abhorrent. Both sets of criticism have important elements of truth. Neither an unqualified cost-benefit analysis nor an unqualified rights-based rejection of tradeoffs is defensible - either as a description of tort doctrine and practice or as a normative prescription. However, a qualified (sensitive) consequentialist approach can accommodate legitimate criticisms of cost-benefit analysis: the consequentialist can launder preferences, and can consider the distribution of risk both in the social welfare calculus and in determining whether to compensate. At the same time, a qualified (tough-minded) deontological approach can accommodate the legitimate need to recognize tradeoffs: the deontologist can permit intrapersonal but not interpersonal aggregation of risks and benefits, can apply the concept of threshold deontology to risky activity, and can consider individual rather than population risk. I conclude that the formulation of the Learned Hand test found in the Restatement Third of Torts is broad enough to encompass each of these qualified approaches. (shrink)

This article offers arefutation of the corrective justiceinterpretation of tort law – the view that itis essentially a system of corrective justice. It introduces a distinction between primary andsecondary tort duties and claims that tort lawis best understood as the union of its primaryand secondary duties. It then advances twoindependent criticisms of the correctivejustice interpretation. The article firstargues that primary tort duties have nothingfundamentally to do with corrective justice andthat, if one understands what is meant by``primary tort duties,'' one is (...) compelledto regard this fact as a decisive objection tothe corrective justice interpretation. Second,it argues that, whatever relation thereis between secondary tort duties and correctivejustice, that relation also holds betweencorrective justice and secondary duties ofother legal branches. In sum, the concept ofcorrective justice is neither capable ofunifying tort law nor of demarcating it fromother legal branches.The article also offers a general alternativeinterpretation of tort law. Rather thanbeing essentially corrective, tort law isessentially protective. Under this picture, iftort law has a most important point, it is theprotection of legal subjects and valuablesocial interests from harm. This is theoverarching ambition that unifies primary andsecondary tort duties. It does not, however,demarcate tort law from other legal branches. (shrink)

This chapter contains sections titled: Economic Theories: Internalization Economic Theories: Deterrence Economic Theories: Loss Spreading Rights‐Based Theories and Distributive Justice Rights‐Based Theories and Corrective Justice References.

The relationship between science, law and justice has become a pressing issue with US Supreme Court decisions beginning with Daubert v. Merrell-Dow Pharmaceutical. How courts review scientific testimony and its foundation before trial can substantially affect the possibility of justice for persons wrongfully injured by exposure to toxic substances. If courts do not review scientific testimony, they will deny one of the parties the possibility of justice. Even if courts review evidence well, the fact and perception of greater judicial scrutiny (...) increases litigation costs and attorney screening of clients. Mistaken review of scientific evidence can decrease citizen access to the law, increase unfortunate incentives for firms not to test their products, lower deterrence for wrongful conduct and harmful products, and decrease the possibility of justice for citizens injured by toxic substances. This book introduces these issues, reveals the relationships that pose problems, and shows how justice can be denied. (shrink)

Tort claims have been studied for various reasons. Several studies have found that most tort claims are not related to negligent adverse events and most negligent adverse events do not result in tort claims. Several studies have examined the disposition of tort claims to understand the likelihood of payment once a claim has been made. Still others have proposed that tort-claims trend analysis may help administrators target their quality-improvement efforts and identify problems with quality that would not otherwise be captured.In (...) this article, we conduct a tort-claims analysis to explore areas for quality improvement, specifically for patient safety, in the Veterans Health Administration. Patient safety is an increasingly highlighted aspect of health-care delivery. Failure to assure patient safety can result in bad clinical outcomes, additional costs of care, and a negative organizational image. Filing a tort claim is one way for an individual to express concern about an organization. For our analysis, we draw from resolved tort claims in the Veterans Health Administration from fiscal years 1989 to 2000. (shrink)

Tort claims have been studied for various reasons. Several studies have found that most tort claims are not related to negligent adverse events and most negligent adverse events do not result in tort claims. Several studies have examined the disposition of tort claims to understand the likelihood of payment once a claim has been made. Still others have proposed that tort-claims trend analysis may help administrators target their quality-improvement efforts and identify problems with quality that would not otherwise be captured.In (...) this article, we conduct a tort-claims analysis to explore areas for quality improvement, specifically for patient safety, in the Veterans Health Administration. Patient safety is an increasingly highlighted aspect of health-care delivery. Failure to assure patient safety can result in bad clinical outcomes, additional costs of care, and a negative organizational image. Filing a tort claim is one way for an individual to express concern about an organization. For our analysis, we draw from resolved tort claims in the Veterans Health Administration from fiscal years 1989 to 2000. (shrink)

This article offers a refutation of the corrective justice interpretation of tort law – the view that it is essentially a system of corrective justice. It introduces a distinction between primary and secondary tort duties and claims that tort law is best understood as the union of its primary and secondary duties. It then advances two independent criticisms of the corrective justice interpretation. The article first argues that primary tort duties have nothing fundamentally to do with corrective justice and that, (...) if one understands what is meant by ``primary tort duties,'' one is compelled to regard this fact as a decisive objection to the corrective justice interpretation. Second, it argues that, whatever relation there is between secondary tort duties and corrective justice, that relation also holds between corrective justice and secondary duties of other legal branches. In sum, the concept of corrective justice is neither capable of unifying tort law nor of demarcating it from other legal branches.The article also offers a general alternative interpretation of tort law. Rather than being essentially corrective, tort law is essentially protective. Under this picture, if tort law has a most important point, it is the protection of legal subjects and valuable social interests from harm. This is the overarching ambition that unifies primary and secondary tort duties. It does not, however, demarcate tort law from other legal branches. (shrink)

At the core of the tort preemption cases before the U.S. Supreme Court is the extent to which state law can impose more stringent liability standards than federal law. The express preemption cases focus on whether the state law requirements are “different from, or in addition to” the federally imposed requirements. And the implied conflict preemption cases examine whether the state law standards are incompatible or at least at odds with the federal regulatory scheme. But the preemption cases in the (...) appellate pipeline - what I shall term the “second wave” of preemption cases - address a separate analytic question. Their focus is less on the substantive aspects of regulatory standards, and more on their enforcement. When can state tort law impose substantive duties or obligations that are “parallel” to federal requirements without thereby encroaching upon a federal agency’s discretionary enforcement prerogative? This is the new frontier in products liability preemption. My proposed model suggests that courts facing these new issues should solicit input from federal agencies before resolving them. The model thereby offers a hybrid private-public model for the regulation of health and safety. It advocates an extension of my “agency reference model” to the “enforcement preemption” context: courts should place more emphasis on FDA input when deciding whether tort requirements are “parallel” to federal dictates, and whether, even if they are, they nonetheless infringe on the federal agency’s discretionary enforcement prerogatives. Courts would thus seek guidance from federal agencies to determine whether a private right of action exists for the enforcement, via state law claims, of federal regulations. (shrink)

In this article, I examine John Goldberg and Benjamin Zipursky’s argument, set out in Recognizing Wrongs, that the ‘principle of civil recourse’ explains much of tort law. Specifically, I assess their claim that tort remedies are instances of civil recourse. I argue that while this label fits a variety of damages awards, it does not fit two significant tort remedies: injunctions and damages for pecuniary losses.

This exceptional collection of twenty-two essays on the philosophical fundamentals of tort law assembles many of the world's leading commentators on this particularly fascinating conjunction of law and philosophy. The contributions range broadly, from inquiries into how tort law derives from Aristotle, Aquinas, and Kant to the latest economic and rights-based theories of legal responsibility. This is truly a multi-national production, with contributions from several distinguished Oxford scholars of law and philosophy and many prominent scholars from the United States, Canada, (...) and Israel. A provocative closing essay by one of the world's leading moral philosophers illuminates how tort law enables philosophers to observe the abstract theories of their discipline put to the concrete test in the legal resolution of real-world controversies based on principles of right and wrong. (shrink)

The risk of tort liability for health maintenance organizations and other managed care plans has dramatically increased in recent years. This is due in part to the growing percentage of health care rendered through managed care plans. The cost-containment mechanisms commonly used by managed care plans, such as limiting access to services and/or choice of providers, creates a climate ripe for disputes that may end up in court. As dissatisfied patients and providers seek recourse in the courts, tort doctrines are (...) extended and new legal theories emerge as needed. For example, the concepts of direct and vicarious tort liability developed in the hospital context have been extended by courts to encompass HMOs. vicarious liability claims, based on ostensible agency or respondeat superior doctrines, have been brought against HMOs and managed care plans for negligent treatment by physicians selected to provide care to members. (shrink)

The risk of tort liability for health maintenance organizations and other managed care plans has dramatically increased in recent years. This is due in part to the growing percentage of health care rendered through managed care plans. The cost-containment mechanisms commonly used by managed care plans, such as limiting access to services and/or choice of providers, creates a climate ripe for disputes that may end up in court. As dissatisfied patients and providers seek recourse in the courts, tort doctrines are (...) extended and new legal theories emerge as needed. For example, the concepts of direct and vicarious tort liability developed in the hospital context have been extended by courts to encompass HMOs. vicarious liability claims, based on ostensible agency or respondeat superior doctrines, have been brought against HMOs and managed care plans for negligent treatment by physicians selected to provide care to members. (shrink)

This paper deals with the role of tort in the field of chemical air pollution regulation during the period 1863, when the first statutory intervention occurred, and 1881, when reforms to both the common law and statute were enacted. It compares the prominence of tort in this context with its significance in the field of injury to factory workers. The implications of tort's relevance in these contexts are then examined, having particular regard to those historiographies of Victorian government growth in (...) which the part played by tort is neglected. (shrink)

The book provides a comprehensive and principled account of the uncertainty problem that arises in tort litigation. It presents and critically examines the existing doctrinal solutions of the problem, as evolved in England, the United States, Canada, and Israel, and also offers a number of original solutions, such as imposition of collective liability and liability for evidential damage. Among the issues dealt with by the book are rapidly developing areas of tort law, such as mass torts, liability for imposing (...) risk and the like. The book combines the traditional doctrinal depiction of the law with general theoretical insights that include economic analysis. (shrink)

How can tort law be justified? There are well-known difficulties with the three traditional theories of tort law dominating the literature (namely, economic theory, corrective justice theory, and civil recourse theory). Recently, some have turned to moral contractualism in search of tort law’s foundation. One of the most prominent attempts was made by Gregory Keating. Keating’s account, however, has been subjected to powerful objections. In a recent paper, John Oberdiek, through a sympathetic critique of Keating’s account, develops a new version (...) of contractualist tort theory that is alleged to be at once superior to the three traditional theories of tort law and immune to the objections to Keating’s account. The aim of my paper is to critically assess Oberdiek’s account; I will argue that, while Oberdiek’s account does improve upon Keating’s in some important respects, it is ultimately unsatisfactory. (shrink)

Class action lawsuits and the justice that they are supposed to enforce have become of great concem to legislators in recent years. The traditional ruIes of tort liability cannot completely support the court decisions that have been reached. The rulings, however, are clearly in the interest of giving victims the justice that they are due. Legal scholars, such as Jules Coleman, claim that the conflicts between tort liability and class action justice cannot be reconciled in our legal system. I propose (...) an avenue of analysis whereby the principles of justice that support tort law are preserved as needed for modem issues, yet at the same time address the genuine public policy concems in these class actions. (shrink)

In a wide variety of contexts, individuals face a risk of being physically harmed by the conduct of others in the community. The extent to which the government protects individuals from such harmful behavior largely depends on the combined effect of administrative regulation, criminal law, and tort law. Unless these different departments are coordinated, the government cannot ensure that individuals are adequately secure from the cumulative threat of physical harm. What is adequate for this purpose depends on the underlying entitlement (...) to physical security. What one has lost for purposes of legal analysis depends on what one what was entitled to in the first instance. Consequently, any mode of safety regulation that requires an assessment of losses or costs ultimately depends on a prior specification of entitlements. For reasons of history and federalism, the entitlement in the United States can be derived from the common law of torts. In addition to establishing how costs should be measured, the tort entitlement also quantifies any distributive inequities that would be created by a safety standard and shows how they can be redressed within the safety regulation. When applied in this manner, the tort entitlement to physical security promotes substantive consistency across the different departments of law by serving as the distributive basis for environmental, health, and safety regulations that operate entirely outside of the tort system. (shrink)

This book develops a theory of tort law that integrates deontic and consequential approaches by applying justificational analysis to identify the factors, circumstances, and values that shape tort law. Drawing on Kantian and Rawlsian philosophy, and on the insights of game theorist Ken Binmore, this book refocuses tort law on a single theory of responsibility that explains and justifies the broad range of tort doctrine and concepts. Under this theory, tort law asks people to appropriately incorporate the well-being of others (...) into the decisions they make, explains when that duty applies, and explains the scope and limits of that duty. The theory also incorporates a theory of the evolutionary development of social values that people use, and ought to use, in meeting that duty and explains how decision-making from behind the veil of ignorance allows us to evaluate the is in light of the ought. (shrink)

Here I look at the views of Mackie about the transitivity of causal statements. Mackie suggests that we replace total transitivity with a calculation which assigns a proportional value to partial causes; this allows us to work out an overall proportion of a single event in a causal chain. I marry the philosophical discussion with a sketch of tort law by means of an unusual hypothetical. I suggest that Mackie’s proportional analysis could be have a useful practical application since current (...) tort law regards causality as transitive and that total responsibility may be placed on the originator of connected but distinct events. (shrink)

Here I look at the views of Mackie about the transitivity of causal statements. Mackie suggests that we replace total transitivity with a calculation which assigns a proportional value to partial causes; this allows us to work out an overall proportion of a single event in a causal chain. I marry the philosophical discussion with a sketch of tort law by means of an unusual hypothetical. I suggest that Mackie’s proportional analysis could be have a useful practical application since current (...) tort law regards causality as transitive and that total responsibility may be placed on the originator of connected but distinct events. (shrink)

This article examines the possible basis for legal liability of researchers who use the Internet in the collection of research data. In particular, it examines the potential legal issues associated with the protocols of ethnographers who use listserv, discussion board, blog, chat room and other sorts of web or Internet-based postings as the source of their data. The author assumes that the forum for participation is legitimate, in that the list, board, blog, chat, etc. is not created or otherwise concocted (...) by the researcher, but involves situations akin to off-line practices where a researcher would be listening to the conversation or watching the behavior of subjects in a public place. Since these practices do not involve direct interview or interaction with or treatment of "human subjects", much of the precedent involving negligence, informed consent, and related issues is not relevant; however, it is reviewed initially for guidance in suggesting the applicable, legal standards of conduct. This article does not discuss the use of the Internet as a collection device, e.g., in online surveys. Issues of legal harm arising from claims in negligence, privacy, and defamation for subsequent disseimination of such postings are evaluated. Although it is concluded that the likelihood for a success of such claims is small, analysis will include steps that researchers can take to ensure that such risk remains negligible. (shrink)