Showing papers in "Oxford Journal of Legal Studies in 1982"

Economic loss in tort

Abstract: The law of torts severely restricts recovery by a plaintiff for financial losses suffered in consequence of the negligent conduct of the defendant.' In American law this is usually, and perhaps misleadingly, summarized by saying that there is no recovery for negligent interference with a contract. It is misleading because the restriction extends beyond contracts to other expected or normal financial gains that, but for the tort, would have been realized. In the other common law jurisdictions, this is referred to, perhaps again misleadingly, as the problem of economic loss. Here the term may mislead because many financial losses may not be losses at all in an economic sense, that is from the point of view of net social welfare.

The doctrine of exclusivity and the position of mixed agreements in the external relations of the european community

Abstract: The exclusive nature of the European Community's powers in the treaty-making field, and the boundary between these powers and those of the Member States, has produced some of the Court of Justice's most interesting and controversial case law. The judgments of the Court have to date concentrated on the existence and justification of the doctrine of exclusivity. It is now time to re-assess the effects of the doctrine, and its place in Community law. Its political consequences for the Member States are enormous, confirming, as it does, the extent to which they have transferred certain of their sovereign powers to the European Community-in relation not merely to domestic legislation, but to external, treaty-making powers, that most widely-accepted characteristic of the sovereign State.

Judicial review and the textbook writers

Abstract: In the closing years of the last decade two jurists, reflecting upon the problems of the legal order in contemporary western societies, came to different conclusions about the prospects for administrative law. To Alice Tay,' administrative lawyers would inherit the earth, while Mark Tushnet,2 echoing the sentiments of some of his American colleagues, doubted that administrative law, as presently understood, had a place of any importance in the administrative order of the day. Despite these apparently different conclusions, both writers saw the problem in similar terms: as the State, in order to achieve a variety of social goals, has taken control of wider spheres of social and economic activity, so the legal framework has become increasingly characterized by the combination of broad statutory provisions and the vesting in officials of wide discretionary powers. The result has been that State regulation enters into areas traditionally thought of as private, in order to impose within these domains certain conceptions of the public good. At the same time, within these areas the emphasis has moved from private rights, guaranteed by explicit legal norms and enforceable by legal institutions, to a system in which power is exercised by officials according to a wide sense of the public interest, which includes, but is much wider than the personal interests of individuals. But if conceptions of the public interest within these areas of discretion are variable and sectional, and dependent upon the assessment of the administrative official, then questions for the legal order arise. To what extent can these areas of power be subject to traditional notions of law with its emphasis on fixed and continuing principles with general application, and upon a particular method of reasoning on the part of legal institutions? The risk is that courts with their characteristic methods of control and accountability are either pushed to the margin of public affairs and become ineffectual, or that the exercise of legal control itself becomes discretionary, sectional and subjective in the same way as the institutions that it seeks to control.3

The Economic Loss Problem: A Comment on Bishop

Abstract: William Bishop has written an interesting and important article on an issue that has puzzled legal scholars for quite some time: the general non-recoverability of pure economic loss.' Pure economic loss arises out of interference with a plaintiff's contractual relations or with his non-contractual prospective gain. Physical loss to person or property, where it occurs at all, is restricted to third parties. If the plaintiff's person or property had been injured by the wrongful conduct of another and financial loss were associated with that, then there would obviously be no bar to recovery. But where economic loss is not associated with the plaintiff's physical loss it is often said that the law disallows recovery. While this is something of an exaggeration,2 the rule of non-recovery has been repeated often enough by the courts to warrant some form of explanation. Bishop's article is extremely complex. The various points he makes are sometimes subject to so many qualifications that the basic thrust of his argument can be very unclear.3 In addition, the distinction between normative and positive analysis, which is usually emphasized by economists, is not adhered to as rigorously as one would hope. At the outset, we are told that 'the principal focus of this paper is not positive but normative'.4 In the conclusion, on the other hand, he emphasizes that, generally speaking, the courts 'have reached results that seem broadly efficient'.' The positive-normative distinction is important because if Bishop intends to present a normative case for courts deciding economic loss questions in accordance with efficiency criteria then he needs to present arguments as to its desirability. He has, in fact, presented none and I seriously

Children in divorce: some further data

Abstract: This paper presents the main findings of a small research project conducted at the Centre for Socio-Legal Studies, Wolfson College, Oxford. It was intended to complement the large scale survey of the manner of disposition of the custody issue after divorce based on an examination of court records and published in 1977.' That study was based on a representative sample of divorce cases involving children under eighteen filed during 1974 in ten courts in England and Wales and in the Court of Session in Edinburgh. A total of 855 cases was examined. The data yielded information on the proposals and patterns of arrangement made by parties for their children on divorce and the courts' responses to them. Some of this will be referred to shortly. An outstanding finding of that study was, when the totality of divorce cases is considered, how insignificant the role of the courts appears to be. Only 6.9 per cent of the English cases were classified as being contested on custody or access at time of hearing, but this may be an underestimate.2 Of the uncontested cases, the court order changed the children's residential status quo in only o-6 per cent (four) cases: in all the rest, it simply confirmed the arrangements agreed between the parties. In only two of the thirty-nine cases where custody was considered contested was a child moved from one parent to the other without the agreement of the parents. But despite the relative smallness of the number of cases which are contested and (particularly) which result in a court imposed solution, they are still

Intentional torts: some thoughts on assault and battery

Abstract: This article is about two torts, assault and battery, which together with false imprisonment' constitute the action of trespass to the person which has survived to the present day. Assault and battery are not fashionable or popular torts in the sense that they are not much used to vindicate rights as is the modern tort of negligence, even when they are capable of being so used. Indeed, it is fairly unusual today to see reported cases of civil assault and battery. Why is this so? First of all, many of the cases of intentional2 assault and battery are also crimes and recent developments3 in compensating victims of crimes, which have generally made it easier to obtain compensation, are naturally relied upon by the victims of such crimes rather than the civil actions for assault and battery-especially as there is some evidence to suggest that many of those who commit these intentional torts are impecunious and therefore not in a position to pay the damages that may be awarded against them.4 Secondly, there is, or so it would seem, a certain confusion, perhaps even ignorance, about the ingredients of the intentional torts of assault and battery. Quite recently a Canadian judge expressed the view that 'the distinction between assault and battery had been blurred, and that when we now speak of an assault, it may include a battery'.' The requirements of directness, the nature of an 'intentional' act, the kind of contact required for battery, the kind of threat required for assault, the sort of apprehension sufficient for assault, the relevance of the knowledge of the plaintiff and defendant of the assault and battery and the question of consent are all matters which are not dealt with adequately or with sufficient clarity in the textbooks. This may have contributed to what appears to be a certain reluctance

A hard look at ‘hard cases’: The nightmare of a noble dreamer

Abstract: The business of judging has long engaged the attention and, in some cases, the imagination of legal theorists. Such curiosity is understandable and desirable for the judicial enterprise lies at the heart of the entire legal process. There is the universal conviction that something noble and fundamental is at stake when judges decide cases. It is doubtless platitudinous, but no less true, to observe that judges, unlike Rabelais' Judge Bridlegoose,' do not decide cases simply on the throw of a dice. Instead, judges strive conscientiously to reach conclusions which are manifestly explicable in terms of previous decisions. In so doing, judges articulate their reasons for making particular decisions. Although most judges do not make explicit their method of reasoning, the existence of some method is necessarily implicit; 'in law, as in all other things, we shall find that the only difference between a person without a philosophy and someone with a philosophy is that the latter knows what his philosophy is'.2 Yet the process of adjudication disguises something else of equal significance for the legal theorist. All lawyers agree that it is the duty of the judges to maintain the law and apply it in deciding cases. However, before a judge can decide what the law is on any particular issue, he must have some working notion of what law is. Accordingly, a deep theory of what amounts to law is necessarily presupposed in the act of adjudication and any account of it.

The foundations of rules for the choice of law

Abstract: This article is concerned with the objectives which underlie choice of law rules in the conflict of laws. The discussion will be confined to aspects of contract, tort and marriage law. In the United States, particularly, much is made of the interests which countries or legal systems are said to have in the application of their rules to the question in issue, and, for some, choice of law mainly consists of an investigation into the presence or absence of such interests. It will be suggested, however, that the question of a country or legal system having an interest or concern in its rules being applied really only arises if the purpose of the rules in question is to protect or advance the public interest of that country. As regards such domestic rules, the relevant choice of law rules may well have as their object the protection of the interest of the country concerned. For the most part, however, the purpose of rules of contract and tort, and to some extent of marriage law also, is to do justice to individuals, and as regards those domestic rules, the idea that a country or legal system can have an interest or concern in their application in some cases, but not in others, is misconceived. Similarly, if the policy of a rule is to do justice to parties to a dispute, that policy can tell us nothing about the scope of the rule's application in cases involving foreign elements. Rather, the applicability of such a rule in conflict cases depends on principles of justice germane to the conflict of laws. What we shall be concerned with then is, firstly, to identify the limited areas where the advancement or protection of interests of countries is a factor which influences choice of law rules, and then to see what general principles of justice can be identified as the foundation of choice of law rules.

Can strict liability be generalized

Abstract: Epstein's book is part of the recent American trend to elaborate comprehensive theories of liability, allegedly based upon rational foundations' The title of the book aptly conveys the author's central concern As a theory of strict liability, it stands opposed to the common law principle of fault (negligence) As an attempt to reformulate tort law, it strives to maintain the latter as a system of 'corrective justice', in opposition to the modern economic approach, with its pronounced utilitarian features The author is, therefore, confronted with a triple task: to offer a critique of the traditional negligence principle, to develop his own systematic theory of tort liability, and to demonstrate its superiority over alternative modern economic theories The need to conduct a kind of two-front war against diametrically opposed systems weakens the thrust of the author's intellectual efforts The abrupt changes of front, as arguments shift, is often confusing for the reader and the author himself is finally induced to admit that his opposition to the two rival systems is by no means of equal intensity In his final comments he states, indeed, that, as against the economic theories, the similarities between the common law of negligence and his system of strict liability are perhaps more important than the differences and, thereby suggests that the bulk of cases will be decided in the same way under either system If the choice between the two systems, therefore, comes down to a few cases, why then the whole considerable effort?