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Wrongs, Harms, and Compensation: Paying for our Mistakes Adam Slavny

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Wrongs, Harms and Compensation: Paying for our Mistakes Adam Slavny Digital Instant Download

Author(s): Adam Slavny

ISBN(s): 9780192864567, 0192864564

File Details: PDF, 2.90 MB

Year: 2023

Language: English

SKU: EB-51981806 Category: Medicine Tags: Adam Slavny, Harms and Compensation, Wrongs

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Wrongs, Harms, and Compensation: Paying for our Mistakes – Ebook Instant Download/Delivery ISBN(s): 9780192864567,0192864564

Product details:

ISBN-10 ‏ : ‎ 0192864564
ISBN-13 ‏ : ‎ 978-0192864567
Author(s): Adam Slavny

Non-instrumentalist private law theory has been dominated by an interpretivist methodology that seeks to understand the concepts, doctrines, and structures of the law in principled terms. This has resulted in the neglect of purely normative analysis and a failure to engage systematically with the methodologies of moral and political philosophy.

Wrongs, Harms, and Compensation: Paying for our Mistakes departs from this approach, arguing instead that the justification of tort law is dependent on our underlying moral corrective duties. In this book, Adam Slavny develops a pluralistic account of these duties, which encompasses both wrongful and non-wrongful conduct, complicating the view that torts should be regarded as a coherent set of wrongs. He also places the practice of enforcing corrective duties in a broader context, arguing that it should not be isolated or immune to critiques based on distributive justice, and that our duties are in fact consistent with institutional arrangements other than tort law, including various types of compensation schemes.

What emerges is neither a wholesale defence of or attack on tort law, but an insistence that its normative foundations are much more complex, diverse, and malleable than a focus on current legal practices would suggest.

Table contents:

1. Introduction

I. The Four-Fold Analysis

II. Map of the Book

2. Interpretivism and Foundationalism

Introduction

I. Defining Interpretivism and Foundationalism

A. Three Features of Interpretivism

B. An Alternative Methodology

II. The Limits of Interpretivism

A. Non-Comparativism

B. The Relationship between Explanation and Justification

C. Normative Distinctiveness

III. The Relevance of Moral Duties to Tort Theory

IV. Four Objections

A. Wrongs and Duties

B. Indeterminacy and Disagreement

C. The Divergence of Torts and Moral Wrongs

D. Legal Wrongs and Legal Authority

V. Hypothetical Case Analysis

Conclusion

3. Unpacking Corrective Duties

Introduction

I. Negating and Counterbalancing

A. Understanding the Distinction

B. Overriding the Presumption

C. Two Objections

II. The Normative Significance of Negating and Counterbalancing

A. Implications for Permissibility

B. Five Features of Interference

C. The Anti-Holmesian Argument

III. Primary and Secondary Duties

A. The Forward-looking Character of Secondary Duties

B. Two Objections

IV. Continuity or Responsiveness?

A. The Two Theses

B. The Central Objection to The Continuity Thesis

C. In Defence of the Responsiveness Thesis

Conclusion

4. Capacity and Cost Sensitivity in Negligence

Introduction

I. Clarifying the Two Metrics

A. Capacity Sensitivity

B. Cost Sensitivity

II. Is the Objective Standard of Care Capacity and Cost Insensitive?

III. Arguments for the Objective Standard

A. The Fairness Argument

B. The Equality Argument

C. The Mixed Account

IV. Defending Capacity and Cost Sensitivity

A. The Undue Burden Argument

B. The ‘Ought Implies Can’ Argument

C. The Variability Objection

Conclusion

5. Outcome Responsibility

Introduction

I. Four Arguments for Outcome Responsibility

A. The Fairness Argument

B. The Consistency Argument

C. Duties to Succeed

D. The Effacement Argument

II. Salvaging Outcome Responsibility

A. The Duty to Avoid Harm

B. What Response?

Conclusion

6. Fairness and Liability

Introduction

I. Understanding Non-Reciprocity

II. Some Objections to The Non-Reciprocity Principle

III. The Benefit Principle

A. Defending the Principle

B. Unwanted Benefits

IV. Avoidance Costs

A. In Defence of The Avoidance Principle

B. Choice and Opportunity

V. Choice Sensitive Fairness

Conclusion

7. Corrective and Distributive Justice

Introduction

I. The Priority of Corrective over Distributive Justice

II. The Parity of Corrective and Distributive Injustice

III. The Anti-Luck Objection

IV. The Priority of Distributive over Corrective Justice

A. Just and Unjust Holdings

B. Hypersensitivity

C. Let’s Hang on to What We’ve Got

V. The Division of Labour Argument

Conclusion

8. Compensation Schemes

Introduction

I. Three Arrangements

II. Compensation Scheme vs Tort without Insurance

III. Compensation Schemes vs Insurance-Backed Tort

A. Dischargeability

B. Accountability

C. Causation

IV. Tort Law, At-Fault, or No-Fault

Conclusion

Bibliography

Index

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