Date: Thu, 3 Nov 2005 09:03:20 -0600

From: Richard Wright

Subject: UK Compensation Bill Published

From a justice standpoint, the social utility of the conduct should be irrelevant if this is interpreted in a utilitarian sense. However, the social value of the conduct should be relevant when this is interpreted in the equal freedom sense that underlies the concept of justice. The latter sense, I believe, is how the courts actually deal with social value. This was the thrust of my presentation to the Tort Law section of the Society of Legal Scholars in Sheffield in September 2004. The point is further elaborated, with discussions of English as well as American cases, in my article, "Hand, Posner, and the Myth of the 'Hand Formula'", available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=362800. The creation of risks to others is reasonable, even if significant, if the risks are acceptable from the standpoint of those put at risk because the risks are substantially outweighed by the (direct and indirect) expected benefits desired by those being put at risk, cannot be reduced further without significantly impairing those desired benefits, and are not too serious. The direct benefits are those expected by participants in the risky activity (employees of the defendant, consumers of the defendant's products, patients of the defendant doctor, spectators or participants in sporting activities, etc.). The indirect benefits are the benefits to everyone (each person) in society, including those put at risk, of socially valuable activities such as railroads, electricity, airplanes, cars, manufacture, etc. But purely private benefits to the defendant or others do not count, although they would under a utilitarian theory. Nor is it sufficient that some gain while others lose; all must gain, directly or indirectly, in order for the risk to be justified as an "irreducible" risk of a socially valuable activity.

-----------------------------------------------------------
From: Jason Neyers
Sent: Thursday, November 03, 2005 7:18 AM
To: Ken Oliphant
Subject: Re: [Fwd: ODG: UK Compensation Bill Published]

I would put a different spin on it. The legislature thought it had to act because according to the leading negligence decisions, the concept of justice which ties them together, and the remedial function of the judge, the social utility of the conduct should be strictly irrelevant. It was the lower courts misinterpreting the leading decisions or being sloppy with the concept of justice which gives the impression that Andrew alludes to.

<<<< Previous Message  ~  Index  ~  Next Message >>>>>