Introduction

The last decade of the twentieth century witnessed a fascinating resurgence of interest in, commentary on and litigation about equitable remedies. There are many reasons for this trend that has continued unabated but a prominent one is the presence of fraud. In litigation the aftermath of the collapses of BCCI and Asil Nadir's Polly Peck company, the Maxwell saga, and mortgage fraud have all made their contribution. One consequence ‘is that courts are increasingly concerned with attempts by the victims of fraud to trace their money and recover it, not from the fraudsters or their confederates, who have usually disappeared, but from those through whose hands it has passed’ (Millett QC (now Lord Millett) ‘Tracing the Proceeds of Fraud’ (1991) 107 LQR 71). Frequently the passage of money has involved sophisticated exercises in money laundering, often through bank accounts in several countries. Put simply money laundering is the process by which the proceeds of fraud or some other criminal activity are converted into assets which appear to have a legitimate origin, the purpose of the process being that the assets can then be retained permanently or even possibly recycled to finance further crimes. The process of tracing and the legal remedies by which the proceeds of fraud may be recovered have involved to some degree the processes and remedies provided by equity, and it is broadly within this commercial context that our study of equitable remedies is located.

Introduction

In the previous two chapters we considered, inter alia, the relationship between trusts law and contemporary trusteeship, including the management of the trust and the powers and duties of trustees associated with that function. One emerging consideration was how far does or should the law seek to intervene to limit the autonomy that settlors might confer on trustees in their management of the trust? In this chapter we focus on the means of controlling trustees, the scope of beneficiaries' rights and the effectiveness of remedies available to them. The appointment and removal of trustees and the control over the exercise of their discretion, issues central to an assessment of trustee autonomy in managing the trust, are considered in sections 2 and 3, whilst the measure of trustee personal liability for breach of trust forms the subject-matter of section 4. Beneficiaries are not restricted to a reliance on the personal liability of trustees as a means of securing recompense for some breach of trust. There may be circumstances where beneficiaries wish to take advantage of the proprietary remedies that the law provides where some breach of trust has occurred. In section 5 we briefly introduce the proprietary remedies that may be available to a beneficiary where the personal remedy against trustees proves inadequate. The full range of the proprietary remedies that equity makes available in cases of breach of trust or where there is some breach of fiduciary duty are considered in detail in Chapter 14.

abstract. The goal of achieving remediation for violation of collective rights is well matured in civil law and common law nations. Modern collective rights identified in an increasing number of constitutions in civil law countries include, to name only two: (1) the right to a safe and healthy environment; and (2) the right to preservation of public space. It is seen readily that collective vindication of such rights has the potential to sound in the common law themes of private nuisance and public nuisance. These collective rights and their remediation have recently acquired great importance in Latin America, due most significantly to their increasing inclusion in national constitutions and civil codes. To a degree, the same phenomenon has visited Europe, both at the level of the law of individual nations and in their current examination by a European Union Commission.

This chapter is based upon the foregoing, together with the congruence of certain of these collective rights with rights protected in the modern law of torts as recognized in one or another form in many common law and civil code nations. Adverting with special focus to the constitutions and the civil codes of Colombia and France, one approaches the question of how the process might work with these questions, among others, in mind: What are the limits of the judge to put into practice these rights? What is the popular action and how does it work? What other participative mechanisms exist to vindicate collective rights? What are the types of claims being presented currently?

abstract. Throughout the common-law world, there is no liability for negligence unless the defendant breached a duty of care owed to the plaintiff. But when is such a duty owed? In the foundational judgment of English negligence law in 1932, Donoghue v. Stevenson, Lord Atkin asserted that “there must be, and is, a general conception of relations giving rise to a duty of care.” Lord Atkin thereby gave expression to the view that the law cannot treat the collection of duties as a chaotic miscellany of disparate norms. Rather, the systematic nature of legal norms requires both that all duties of care be thematically unified through the same underlying principle and that each particular duty be internally coherent. More recently, however, courts seem to have given up on the attempt to formulate or appeal to a general conception of duty and have returned to the multiplicity of particular duties that Lord Atkin deplored. This has caused a “disintegration of duty.”

The general conception of the duty of care – its theoretical basis, its structural constituents, its more recent disintegration back into particular duties, and the need to recapture what a general conception of duty implies – is the subject of the present chapter. It first shows through an analysis of the landmark cases of the Twentieth Century how duty fits with other negligence concepts (failure to exercise reasonable care, factual causation, and proximate cause) to connect the defendant's act to the plaintiff's injury in a normatively coherent way. It then sets out the internal structure of the duty of care, that is, what its constituents must be if it is to reflect a coherent conception of wrongdoing.

abstract. As human societies developed, a bedrock necessity was the development of expectations and norms that protected individuals and families from wrongful injury, property damage, and taking. Written law, dating to the Babylonian codes and early Hebrew law, emphasized congruent themes. Such law protected groups and individuals from wrongful injury, depredation of the just deserts of labor, interference with the means of individual livelihood, and distortion of the fair distribution of wealth.

Hellenic philosophers identified the goals of society as the protection of persons and property from wrongful harm, protection of the individual's means of survival, discouragement of self-aggrandizement, and the elevation of individual knowledge that would carry forward and perfect such principles. Roman law was replete with proscriptions against forced taking and unjust enrichment, and included rules for ex ante contract-based resolution of potential disagreement. Customary law perpetuated these efficient economic tenets within the Western world and beyond. The common law has pursued many of the same ends. From the translation of the negligence formula of Judge Learned Hand into a basic efficiency model to the increasing number of judicial opinions that rely explicitly upon economic analysis, efficiency themes can be predicted to enjoy a continued and increasingly conspicuous place in modern tort analysis.

INTRODUCTION

Tort law represents a society's revealed truth as to the behaviors it wishes to encourage and the behaviors it wishes to discourage.

abstract. European nations have yet to elaborate a developed body of decisional law, individually or collectively, in the subject matters of toxic torts and products liability. In the final decades of the twentieth century, European countries, and Italy particularly, were confronted with a surge of criminal litigation that placed in question whether the obstacles to proving individual causation have been overcome by the expedient of replacing the notion of condicio sine qua non, or but for causation, with the standard of risk elevation. Beginning in 2000, in Italy and elsewhere, courts took this different tack. There followed, however, an influential decision of the Italian Supreme Court that held that simple risk elevation would not suffice to prove individual causation in criminal prosecutions. Rather, the prosecution would be required to prove not only “but for” cause, but also sustain that burden beyond a reasonable doubt. The high bar established by the Italian court has been implemented in numerous holdings by inferior courts.

At the same time, in an increasing number of Italian universities, professors of civil liability systems have begun to teach the evidentiary and doctrinal approaches used by U.S. civil courts. The effect has been to make clear that toxic torts and products liability ought not be considered a part of criminal law, but instead should be discussed and litigated in civil trials, pursuant to the preponderance of the evidence standard. Should this development continue, the salutary effect of Italy's employment of U.S. tort model can only increase in the future, particularly in light of the Restatement (Third) of Torts to traditional causation standards.

For the last forty years, no body of law within the civil justice system has experienced greater ferment than has the law of torts. This dynamism withal, the most prominent identified objectives of tort law continue to be the creation of an optimally uniform body of law that gives notice to all that certain behaviors that cause injury or loss to others will trigger obligations, usually including (1) the cessation of the conduct; and (2) compensation of the injured party for harm caused in a measure that will place him, to the extent money damages can do so, in the status quo ante. More recently, these corrective justice motivations have been reevaluated and enlarged to include tort law justifications with an economic basis. These economic models have been assigned modifiers such as “law and economics” or “efficiency-deterrence” or “cheapest cost avoider.” As a general proposition, the economic paradigms suggest that the informed and rational individual will make decisions that tend to ensure that the benefits he enjoys by his activities are not outweighed by the sum total of the internalized potential liability costs, including secondary and social costs.

The uneasy heterogeneity existing between the “corrective justice” and the “efficiency” models for tort norms is but one of the modern fault lines in the field. The movement, once seemingly inexorable, from fault-based liability to strict liability is now seen to have produced tort rules of responsibility that are either only nominally “strict,” are limited to the most select of circumstances, or both.

abstract. The reform of contributory negligence into a scheme of apportioning liability based on comparative fault is among the most significant developments in tort law during the Twentieth Century. Its significance goes beyond the rejection of the common law's “all or nothing” attitude about liability and has extended to modification of many other aspects of tort law that developed because of the entrenchment of contributory negligence.

At about the same time as courts and legislatures adopted comparative fault, the advent of large toxic substances case congregations emerged – asbestos, Agent Orange, DES, silicone gel breast implants, and tobacco are among the most notable of such. Many of these cases present difficult problems of causation because the connection between exposure to the agent and disease is only dimly understood. The best scientific evidence is provided by epidemiology, which is group-based and statistical in nature.

The confluence of comparative fault principles and probabilistic evidence of causation raises the question of whether liability should be imposed proportionally based on the probability of causation in toxic substances cases. Many scholars have argued for rejection of the customary “more likely than not” standard for the burden of proof and for adoption of a proportional liability rule. This chapter critically assesses those proposals by looking carefully at the precision and fallibility of the epidemiological evidence on which the scholars' proposals rely. After concluding that proportional liability would not provide the deterrence benefits claimed for it, this chapter considers the implications of its analysis for employing proportional liability in other areas of tort law.

This collection originated in a colloquium held at Pace University School of Law in November 2003. The title of the colloquium and the title originally envisioned for this collection was the future of torts. The scholars invited to give papers at this gathering include many of the leading torts scholars in the United States, with contributions also from scholars from Australia, Canada, Colombia, and Italy. Each was asked to prepare a paper responding in some way to the question of what will be the future directions of tort law. All, with the exception of the University of Milan's Federico Stella, were able to present their papers at the School of Law, and the eleven invited papers, together with that of Prof. Stella, were each of the highest quality, innovative, and provocative.

However, by the time the participants completed their final papers some months later, two things had become clear. First, and a point mentioned by some early on, it is unlikely that any volume today could fulfill the promise entailed in a title the future of torts. Moreover, even if such an ambitious title could be validated by the work of some individual author or authors, no one could reasonably expect that a group of such highly individualistic scholars as convened here would cleave harmoniously to any single objective, even one so deceptively simple as that of viewing torts prospectively.

abstract. This chapter considers, from the perspective of future users, an intriguing aspect of the architecture that the Reporters of the American Law Institute have chosen for the current Draft Restatement (Third) of Torts: Liability for Physical Harm. In restating legal principles currently applied in the United States, the ALI also must preserve the constitutionally vital phenomenon of judicial lawmaking by which the common law will continue to develop in the future. It is faced with stark political choices. The first concerns how welcoming a restatement text is to, say, the future expansion of liability beyond the current case law precedents. The second concerns what is the appropriate future balance of lawmaking power among trial judge, jury, and appellate court. These choices are the “ghosts at the feast” of restatement. This chapter argues that the otherwise puzzling, polarized treatment of the duty of care within the architecture of the Draft Restatement reflects choices made by the Reporters as to how much future common law development there should be and what is the most appropriate institutional location for it to take place. A consideration of those choices highlights a deep fracture in United States tort law between the loud rhetoric in support of jury decision making and the many, typically covert, maneuvers made to prevent issues from reaching the jury.

abstract. One of the fundamental choices that the law must make in dealing with physical and financial harm is whether to deal with these through the legal commands of the tort law or through the business arrangements of private contracts. The modern direction on this question has tended to displace contractual arrangements, which frequently impose sharp restrictions on the recovery of consequential damages, with tort rules that allow an injured plaintiff to recover the full measure of compensation for physical injury while allowing contractual limitations to control the recovery for financial loss. One theme of this chapter is that the structure of the arrangements in the two cases are sufficiently similar to undercut that distinction in ways that allow contract rules to govern in both settings. A second theme is to examine the decline of the privity rules, which traditionally allowed a purchaser to sue only his or her immediate vendor for various forms of harm. The original justification of privity was an effort to force distant parties, for example, manufacturer and consumer when there is an intervening retailer, to get into privity with each other. But the actual history is otherwise in that the principle of freedom of contract was largely rejected at the same time that the privity limitation was overcome: contracting was not possible even for parties in privity. Ironically, however, the privity limitation continues to play a role in a number of important contexts, environmental and financial losses, where unlimited liability is thought to be potentially ruinous.

abstract. Responsibility theory suggests that the more correct information a person has about a dangerous thing or situation, the more likely it is that the person will make informed choices about how to confront such risks, and the more likely such choices will be cost-effective and rational. The premises for these conclusions include: (1) at an individual level, that people are rational beings, and that more and better information about risk permits people to make informed decisions; (2) at a social level, that people strive to make just, socially-beneficial choices when they can do so without undue harm to themselves; and (3) at a political level, that the more personal decision making that can be left to individuals, the less that government interferes with personal choice.

This chapter inquires into the extent to which tort law does and should impose responsibility on actors for harm to persons who possess full risk information, either because the risk was obvious or the victim was warned about it. Put otherwise, when a person chooses to engage a risk about which he or she has full information and is injured as a result, should that person bear responsibility for the harmful result?

The chapter proceeds to develop a model Liability Shield program that would shield manufacturers from liability if they provide consumers with full information of product hazards. Although such a program is attractive in abstract responsibility theory, it is seen to rest perilously upon twin pillars wrought of little more than fantasy: human rationality, an ideal that is undermined by real-world frailties of human cognition and behavior; and institutional responsibility, undermined by real-world obstacles to fair and efficient behavior by manufacturers and safety agencies.

abstract. This chapter evaluates the risks of open-ended judicial review of complex tort issues, and specifically design issues. Not confined to products liability design defect matters, this chapter examines other areas, including medical malpractice, governmental, and environmental designs that have been the subject of challenge by injured plaintiffs. It explores such themes as institutional competency, as well as the bona fides of traditional tort contemplations of enterprise liability, the prima facie case, and evidentiary requisites. The chapter concludes that courts have avoided open-ended design review in each of the major contexts in which the pressures to engage in such review are the greatest. In product design litigation, the primary means of controlling the negligence concept is the requirement, where adopted, that plaintiff prove both the technological feasibility of a safer alternative design and but-for causation. In medical malpractice litigation, where the safer-alternative-design approach is not available, courts rely on professional custom to supply specific standards that render negligence claims adjudicable. As for negligence claims against the government, where neither safer-alternative-design nor reliance-on-custom solutions are available, courts and legislatures have built on the traditional principle of sovereign immunity to allow courts to impose tort liability on governmental actors while avoiding open-ended review of complex institutional designs. In each context, courts have adopted an approach unavailable in the others by which to contain the negligence concept and keep it with its proper bounds.