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Flashcards in Tort Law - Tort Theory Deck (25):
1

Who gives four possible bases of an action in tort?

Williams

2

Williams' four possible bases for action in tort?

Appeasement, justice, deterrence and compensation

3

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

Lawrence v Fen Tigers

4

Lord Carnwath view of tort law in Lawrence v Fen

Normative - looking to public welfare

5

Lord Neuberger view of tort law in Lawrence v Fen

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

6

What is an instrumental theory of tort law?

Tort trying to remedy social problem

7

What is a non-instrumental theory of tort law?

Tort gives expression to moral principles

8

What is an analytical theory of tort law?

Interpreting and explaining tort law

9

What is a normative theory of tort law?

Justifying/reforming tort law

10

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

Deterrence

11

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

Reformist, normative theory of 'optimal deterrence'

12

Where is the 'economic efficiency' idea most popular for tort?

USA

13

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

Judge Richard Posner

14

Who accused Posner of 'moral monstrousness' and why?

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

15

What is the underlying principle of economic effiiency

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

16

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

Stevens

17

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

Stevens

18

How did Williams refer to Kantian corrective justice?

'Ethical compensation'

19

What academic in particular made corrective justice famous?

Weinrib

20

Outline of corrective justice theory

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

21

Who compared CJT with distributive justice theory?

Aristotle

22

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

Aristotle

23

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

Aristotle

24

What academics support principle of civil recourse

Goldberg and Zipursky

25

Principle of civil recourse

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

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