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Law Second Year > Tort Law - Tort Theory > Flashcards

Tort Law - Tort Theory Flashcards

1
Q

Who gives four possible bases of an action in tort?

A

Williams

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2
Q

Williams’ four possible bases for action in tort?

A

Appeasement, justice, deterrence and compensation

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3
Q

What judgment shows the difference between an analytical theory of tort law and a normative theory of tort law?

A

Lawrence v Fen Tigers

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4
Q

Lord Carnwath view of tort law in Lawrence v Fen

A

Normative - looking to public welfare

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5
Q

Lord Neuberger view of tort law in Lawrence v Fen

A

Analytical - tort exists to protect certain rights, so broader policy concerns have nothing to do with it

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6
Q

What is an instrumental theory of tort law?

A

Tort trying to remedy social problem

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7
Q

What is a non-instrumental theory of tort law?

A

Tort gives expression to moral principles

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8
Q

What is an analytical theory of tort law?

A

Interpreting and explaining tort law

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9
Q

What is a normative theory of tort law?

A

Justifying/reforming tort law

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10
Q

What is the social goal of injury compensation usually combined with?

A

Deterrence

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11
Q

What is the social goal of injury deterrence best seen as?

A

Reformist, normative theory of ‘optimal deterrence’

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12
Q

Where is the ‘economic efficiency’ idea most popular for tort?

A

USA

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13
Q

What judge in particular is a big advocate of economic efficiency?

A

Judge Richard Posner

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14
Q

Who accused Posner of ‘moral monstrousness’ and why?

A

Dworkin, because suggested wealth if a value of intrinsic/instrumental worth

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15
Q

What is the underlying principle of economic effiiency

A

Pareto-efficiency - moving resources to where they are most wanted by looking at society as an aggregate

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16
Q

What academic supports tort theory as being based on a structure of legal rights?

A

Stevens

17
Q

Who argued unitary theories to explain tort are ‘wrong-headed’?

A

Stevens

18
Q

How did Williams refer to Kantian corrective justice?

A

‘Ethical compensation’

19
Q

What academic in particular made corrective justice famous?

A

Weinrib

20
Q

Outline of corrective justice theory

A

First order duty to prohibit invasion of liberty, and second order to repair any invasion by taking from D and giving C

21
Q

Who compared CJT with distributive justice theory?

A

Aristotle

22
Q

Who argued CJT is about making good a wrong with regard to individuals needs?

A

Aristotle

23
Q

Who argued DJT is about making good a wrong with regard to EVERY individual’s needs?

A

Aristotle

24
Q

What academics support principle of civil recourse

A

Goldberg and Zipursky

25
Q

Principle of civil recourse

A

No right to a remedy, but legal power to demand one - first order duty, but no second order automatically - first need a trial

Law Second Year (62 decks)

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