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Judge-made risk regulation and tort law: an introduction

  • Elbert R DE JONG, Michael G FAURE, Ivo GIESEN and Peter MASCINI
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Abstract
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This special issue is based on papers presented during a conference on judge-made risk regulation in February 2017. The conference was organised by Utrecht Centre for Accountability and Liability Law (Ucall) of Utrecht University (<ucall.rebo.uu.nl/en/>) and the research group Behavioural Approaches to Contract and Tort (BACT) of Erasmus School of Law (Rotterdam) (<www.esl.eur.nl/research/directory/programmes/bact/>). The conference was organised in collaboration with the Royal Netherlands Academy of Arts and Sciences (KNAW).

**

Dr ER de Jong is Associate Professor at Ucall. From April 2017 to April 2018 he is a visiting fellow at the Institute of European and Comparative Law of Oxford University, funded by the Dutch NWO program Rubicon. Professor MG Faure is Professor of Comparative and International Environmental Law at Maastricht University and Professor of Comparative Private Law and Economics at Erasmus School of Law. He is also director of BACT. Professor I Giesen is Professor of Private Law at Utrecht School of Law, member of Ucall and research director of Utrecht School of Law. Professor P Mascini is Professor of Empirical Legal Studies at the Erasmus School of Law and director of BACT.

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1 See eg Cane, P, “Using Tort Law to Enforce Environmental Regulation?” (2002) 41 Washburn LJ 427, 466 , and the contributions of Kysar and Loth to this special issue, as well as Weinrib, E, The Idea of Private Law (Oxford University Press 2012) 3 .

2 Honoré, T, Responsibility and Fault (Hart Publishing 1999) 79 .

3 See also de Jong, ER, “Private Law at the crossroads: judicial risk regulation in the context of health and environmental risks” in M Dyson (ed.), Regulating Risk through Private Law (Intersentia 2018).

4 District Court of The Hague, 24 June 2015, ECLI:NL:RBDHA:2015:7145. See, for a description of this judgment in light of judge-made risk regulation, de Jong, ER, “Dutch State Ordered to Cut Carbon Emissions” (2015) 6(3) European Journal of Risk Regulation 448 and see Loth’s contribution to this issue for an analysis of the legitimacy of this judgment.

5 District Court of The Hague, 7 September 2017, ECLI:NL:RBDHA:2017:10171.

6 See De Jong in this special issue.

7 One could think of the following type of procedures: a request for an injunction against a public or private actor, public authority liability, judicial review of public acts, or private actor liability.

8 See also Linden, AM, Canadian Tort Law (5th edn, Butterworths 1993) 2224 , who speaks about the ombudsman function of tort law.

9 See Kysar in this special issue.

10 See eg Spier, J and Magnus, U, Climate Change Remedies (Eleven International Publishing 2014).

11 See inter alia Viscusi, WK (ed.), Regulation through Litigation (American Enterprise Institute–Brookings Institution 2002); Morris, AP, Yandle, B and Dorchak, A, Regulation by Litigation (Yale University Press 2008) 1 ; Ewing, B and Kysar, D, “Prods and Pleas: Limited Government in an Era of Unlimited Harm” (2011) 121 Yale Law Journal 350 ; Luff, P, “Risk Regulation and Regulatory Litigation” (2011) 61 Rutgers Law Review 73 ; Faure, MG, “The complementary roles of liability, regulation and insurance in safety management: theory and practice” (2014) 6(6) Journal of Risk Research 689 . See, in relation to Dutch courts, de Jong, ER, “Private Law at the crossroads: judicial risk regulation in the context of health and environmental risks” in M Dyson (ed.), Regulating Risk through Private Law (Intersentia 2018); de Jong, ER, “Rechterlijke risicoregulering bij gezondheids- en milieurisico’s” [Judge-made risk regulation pertaining to health and environmental risks] (2015) Ars Aequi 872 .

12 See Kysar in this special issue. See also Goldberg, JCP and Zipursky, BC, “Tort Law and Responsibility” in J Oberdiek (ed.), Philosophical Foundations of the Law of Torts (Oxford University Press 2014) 17 .

13 Cane, supra, note 1.

14 For foundational work, see Coase, R, “The Problem of Social Cost” (1960) 3 The Journal of Law and Economics 1 ; Calabresi, G, “Some Thoughts on Risk Distribution and the Law of Torts” (1961) 70(4) Yale Law Journal 499 ; eg Posner, R, The Economics of Justice (Harvard University Press 1983).

15 Shavell, S, “Liability for Harm versus Regulation of Safety” (1984) 13(2) The Journal of Legal Studies 357 . See also Faure, supra, note 12.

* This special issue is based on papers presented during a conference on judge-made risk regulation in February 2017. The conference was organised by Utrecht Centre for Accountability and Liability Law (Ucall) of Utrecht University (<ucall.rebo.uu.nl/en/>) and the research group Behavioural Approaches to Contract and Tort (BACT) of Erasmus School of Law (Rotterdam) (<www.esl.eur.nl/research/directory/programmes/bact/>). The conference was organised in collaboration with the Royal Netherlands Academy of Arts and Sciences (KNAW).

** Dr ER de Jong is Associate Professor at Ucall. From April 2017 to April 2018 he is a visiting fellow at the Institute of European and Comparative Law of Oxford University, funded by the Dutch NWO program Rubicon. Professor MG Faure is Professor of Comparative and International Environmental Law at Maastricht University and Professor of Comparative Private Law and Economics at Erasmus School of Law. He is also director of BACT. Professor I Giesen is Professor of Private Law at Utrecht School of Law, member of Ucall and research director of Utrecht School of Law. Professor P Mascini is Professor of Empirical Legal Studies at the Erasmus School of Law and director of BACT.

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European Journal of Risk Regulation
  • ISSN: 1867-299X
  • EISSN: 2190-8249
  • URL: /core/journals/european-journal-of-risk-regulation
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