Principles of Compensation Flashcards
Ways of Conducting Compensation and Regulation
- tort + no-fault = reparation systems -> seeks to both compensate victims AND regulate the risks
- vs. background institutions do one or the other
Reparation Systems
- aim of compensation and regulation merge
- tort + no-fault plans
- seek to offset harm caused by accident by providing full or partial compensation to victim + impose duty of making reparation on actor responsible for the harm
Background Institutions
- legal mechanisms that EITHER compensate victim or regulate risky activity - don’t do both
Background Mechanisms of Compensation
- through private loss insurance + gov benefit programs
- lack regulatory impact b/c don’t try to fasten particular accident costs on the specific risky activity that gave rise to them
Loss Insurance - Basic Concept
- operates on principle of contract
- benefits up to policy limits for victims who have paid/arranged for protection in advance
Government Compensation Programs
- social insurance or welfare
- transfer funds in restricted amounts to all eligible individuals suffering certain defined needs or economic misfortunes (whether physical accident or otherwise)
Regulation
- undertaken by government in host of substantive + procedural methods, including: licenses, recalls, shut-down orders, statutory norms backed by injunctions + criminal processes
- regulatory form of greatest importance = fashioning of safety, health + environmental standards by administrative agencies
Elements of Tort Adjudication
- liability rules
- adjudicatory processes
- tort damages
- financing left to defs
Forms of Tort Liability
1- fault liability (negligence plus liability insurance)
2- activity liability (liability based on type of activity itself, regardless of fault)
—> four types: vicarious liability (hybrid), nuisance, dangerous activities, + products liability
Non-Tort Reparation Plans - Elements
- attribution rules
- administrative process
- compensation limits
- financing specified
Non-Tort Reparation Plans - Examples
3 - actor-financed activity plans (ex: workers’ comp) -> actors contribute to fund for accidents characteristic of the activity, + victims recover on non-fault basis
4- victim-financed activity plans (ex: auto no-fault) -> potential victims of an activity contribute to fund for characteristic accidents
Background Institutions - Examples
- private loss insurance
- government benefit programs
- government regulation
Principles of Compensation - Keeton
3 Core Ones:
- fault principle
- strict accountability principle (activity)
- welfare principle (need)
Prof also added choice (largely tied to contract)
Keeton - Core Idea
- notion that the aforementioned principles are each used as rationales for legal programs, + they often co-exist and compete w/ each other in legal systems across the world
- mixed system, but they all compete for dominance
Sequel to Workmen’s Compensation Acts - Smith
- written in 1914
- discusses impending passage of Workmen’s Compensation Act
- argues that if workers are entitled to compensation from employers w/o fault under the Act, public will ultimately demand extension of comparable ability to recover beyond workers w/o fault, + both statutes + common law will change (Prof described as prescient, but a bit overly apocalyptic, given that in the end our legal system just became a mixed system)
