Chinese courts routinely ask defendants to pay damages without evidence of negligence while relying on concepts such as fairness, substantive justice, or discretion. This chapter examines how Chinese courts arrive at decisions that feel fair or just in cases where they refer to those ideas. Analysis of a dataset of 10,000 judicial decisions in personal injury cases suggests that Chinese courts refer to these concepts when they impose liability on two types of parties: (1) participants in a shared activity and (2) those who control a physical space. By assigning legal responsibility in these cases, Chinese courts acknowledge traumatic harm, spread economic losses through communities, and, when they award substantial sums, act as agents of redistribution. These practices survived the 2021 adoption of the Civil Code, which reduced courts’ discretion to impose equitable liability in tort cases. This study therefore points to several potentially distinctive features of China’s embrace of legal heterodoxy in tort law. Those features include the ongoing influence of China’s socialist and pre-revolutionary legal traditions, divergence between legal provisions and legal practice, and the possibility that heterodox practices will serve bureaucratic interests and Party-state goals along with other social policy goals.

The reasonable person standard is key to both Criminal Law and Torts. What does and does not count as reasonable behavior and decision-making is frequently deter- mined by lay jurors. Hence, laypeople’s understanding of the term must be considered, especially whether they use it predominately in an evaluative fashion. In this corpus study based on supervised machine learning models, we investigate whether laypeople use the expression “reasonable” mainly as a descriptive, an evaluative, or merely a value-associated term. We find that “reasonable” is predicted to be an evaluative term in the majority of cases. This supports prescriptive accounts, and challenges descriptive and hybrid accounts of the term – at least given the way we operationalize the latter. Interestingly, other expressions often used interchangeably in jury instructions (e.g. “careful,” “ordinary,” “prudent,” etc.), however, are predicted to be descriptive. This indicates a discrepancy between the intended use of the term “reasonable” and the understanding lay jurors might bring into the courtroom.

Legal outcomes often depend on whether conduct is reasonable. But how do we judge what is reasonable? What are the relevant criteria? Legal theorists have long debated these questions. This chapter outlines some of the leading theories. It then describes recent experimental work probing whether those theories align with lay judgments of what is reasonable. The findings indicate that reasonableness is best understood as a hybrid concept – a product of multiple inputs. Working from this perspective, the chapter raises important additional questions about reasonableness – questions that experimental jurisprudence is well suited to explore.

This chapter offers an example of conceptual instrumentalist analysis. Being instrumentalist in nature, the analysis focuses on the degree to which one plausible doctrinal design or another best advances the underlying social policies sought to be achieved in a given area of law. Unlike classic empirical analysis, however, the social policies at play in conceptual instrumentalist analysis are not concrete practical benefits that might be furthered in the real world, like greater compensation or deterrence, but are instead more abstract preferred outcomes, like greater fairness or the presence of sufficient fault by a certain party before the imposition of legal liability. Of course, appellate court analysis of any particular legal issue might involve elements of both empirical and conceptual instrumentalist analysis.

The focus of the analysis in this chapter is the tort law requirement of causation. The account presented seeks to explain the structure of this long-standing requirement, the meaning ascribed to the distinction between actual and proximate cause, and the rationale underlying the various exceptions to the main rule that have been developed over time.

This chapter focuses on the litigation that followed the tsunami, which hit the Okawa Elementary School. The tsunami resulted in the death of the children visiting the school. The following litigation concerned the question of whether appropriate safety measures had been put in place at the school before the tsunami occurred. The two lawyers leading the litigation for the parents of the children report on how they used innovative approaches in the litigation proceedings. The legal innovation employed concerns the composition of the litigation team, the involvement of the children’s parents, the creation of witness statements addressing the emotional aspects of the disaster, the identification of the entity that should be liable, the doctrine determining liability, digitalisation of litigation and the distribution of risk in modern societies.

This chapter addresses the role of tax advice in encouraging aggressive and abusive tax planning by high-end taxpayers. It begins with a discussion of the different roles of tax advice, one of which is its use as a form of tax penalty insurance. The chapter then shows how the rich benefit disproportionately from the ability to avoid penalties through tax advice. After describing these effects, we offer a proposal for incorporating means adjustments into the tax penalty defense rules, focusing specifically on tax advice, and we respond to potential objections and concerns.

Every civil wrong has a number of requirements that must be satisfied before the plaintiff may obtain compensation for resulting harm. One requirement common to all wrongs is that the harm must be attributable to the defendant’s wrongful conduct. It may broadly be said that the defendant’s wrongful conduct must constitute a cause of the harm. This always involves an inquiry into whether there is a historical link in fact between the wrong and the harm, and usually also a value judgement on whether liability for the harm ought to be imposed upon the defendant.

With regard to wrongs actionable only on proof of damage (for example, negligence), the attribution of responsibility for harm is part of establishing liability rather than a matter of remedy. With regard to wrongs actionable per se, the attribution of responsibility for harm is a matter of remedy since nominal damages can be awarded in the absence of loss. In any event, it is customary to discuss attribution of responsibility in books on remedies, and this book follows that custom.

A contract may be breached by one party (the defendant) through defective performance, delayed performance, or a total failure to perform. If the contract breached is enforceable at common law, the innocent party (the plaintiff) can generally claim common law damages for any loss suffered as a result of the breach. The assessment of such damages and the attribution of responsibility for such loss are generally governed by the rules discussed in Chs 2 to 4 for civil wrongs in general. Specific rules for breach of contract are discussed in this chapter: the assessment of damages and the attribution of responsibility.

The advent of automated driving systems forces us to reconsider legal concepts such as negligence, recklessness, and volition and will lead to new narratives in criminal courts on how to understand these established concepts. New mala prohibita may also need to be developed, impacting human and nonhuman drivers. One question in this reconfiguration will be whose powers of perception and/or agency will be deemed relevant. Automated driving systems have their own hermeneutics in the sense of their algorithms; can, and if so how, will humans understand their actions? Interdisciplinary collaborations are required to deal with new technologies, but jurists are often unacquainted with technology, and the experts who guide them are not usually jurists. Translation problems between disciplines may occur, as well as responsibility gaps, with negative consequences for both new legislation and individual cases. This chapter argues that automated driving systems require a hermeneutics of the situation, a framework to guide factual and legal interpretation for these systems that is interdisciplinary in nature and bridges legal, ethical, and technical challenges.

This chapter provides an overview of the legal and medical principles that underpin medical negligence litigation, including the definition of medical negligence, what constitutes a psychiatric injury, the psychiatric evaluation and practical issues which commonly arise, when undertaking a psychiatric assessment in the context of clinical negligence litigation. After criminal negligence, the elements of civil negligence are set out including duty of care and standard of care. Legal concepts of causation and psychiatric injury differ from medical or scientific causation. The professional obligations on the forensic psychiatry as expert are to be neutral and objective, to obtain and document consent, to structure how instructions are taken and how reports are written in the light of court guidelines. As with all areas of medicine, the expert must comply with the ethical, professional and legal obligations of doctors. Patient privacy and confidentiality of personal health information must be protected. Most, if not all, patients referred by their solicitors, or by the defendant medical indemnity body, will already feel betrayed and let down by the medical profession. They will be fearful and distrustful. On the other side, there is a clinician who fears reputational damage.

AI will disrupt the existing tort settlement. Tort law should be tech-impartial – that is, it should not encourage or discourage the adoption of new technologies where they generate the same level of risk, and victim rights should not be eroded by the use of new technologies in place of existing systems of work. Existing tort law is poorly suited to address some AI challenges, and a liability gap will emerge as systems replace employees since AI does not have legal personality and cannot commit a tort. A form of AI statutory vicarious liability should apply in commercial settings to address the liability gap and as the tech-impartial solution.

This chapter takes a psychological perspective on tort law decision-making, drawing on psychological theory, empirical research, and legal practices in tort litigation to assess the state of knowledge about decision-making in tort cases. It examines how plaintiffs decide to bring a lawsuit, how defendants respond, and the process of dispute resolution in tort cases. Most tort cases do not go to trial, but trial decisions remain significant as a framework for negotiations. The chapter also draws on psychological theory and research to describe how the judge and the jury as decision-makers resolve legal issues and reach liability verdicts and damage awards in tort cases. Psychological heuristics, biases, and other psychological phenomena affect decision-making in intentional tort, negligence, and strict liability cases, and judgments about liability and damages. The chapter closes with suggestions for further investigations of understudied topics in tort law decision-making.

Tort law is a compelling and dynamic area of law, affecting many aspects of individuals’ lives. A strong understanding of tort principles is important for legal practice, as lawyers may be required to represent clients in a range of tort disputes, from a physical altercation in a bar, to a fall in a supermarket or possibly the lowering of a client’s reputation through defamatory material posted on the internet. At its core, a tort is a civil wrong. Deriving from the Latin word tortum (‘wrong’), a tort is an act or omission that infringes upon the rights of individuals in society, allowing the aggrieved individual to seek a legal remedy.

Once a plaintiff has established that a duty of care is owed and has been breached and that the breach has resulted in damage the burden of proof then shifts to the defendant. In an action for negligence, the plaintiff’s claims can be defeated if the defendant can prove a relevant defence. The key defences to an action in negligence are the following:

• The plaintiff’s failure to take reasonable care of their own safety, or ‘contributory negligence’

• The plaintiff’s previous acceptance of the risk – their voluntary assumption of the risk created by the defendant’s conduct

• The plaintiff’s intoxication or willing undertaking of dangerous recreational or unlawful activities may operate as a defence in some jurisdictions. In others, it may be relevant to establishing that a breach has occurred

• Statutory defences, including the plaintiff’s delay in initiating proceedings

  A defendant who wishes to rely on one of these defences must: (1) plead these matters by filing a defence that raises the matters; and (2) produce evidence to prove them on the balance of probabilities. The defendant bears the onus of proving the defence.

This chapter covers the medical malpractice system: how it works, what its goals are, and how it influences provider behavior. The chapter begins by defining key terminology in tort law and explaining the process by which a medical malpractice case is brought and resolved, as well as the goals that this system is trying to achieve. Then discussion turns to how this system creates incentive for actions that run counter to its goals and the problems that are likely to arise, along with some empirical evidence of the existence of said problems.

This paper explores the relevance of the concept of revelation in Roman augury. Although augury is often regarded, not without reason, as being preoccupied with matters of narrow import and significance, it is a craft based on the detection and interpretation of divine signs, and thus builds into its operating process the question of the extent and quality to which the gods disclose to mankind their will and their attitudes. Revelation thus proves a productive vantage point on the workings of Roman augury, and more broadly of Roman public divination.

This chapter develops and critiques the major economic arguments in tort law, focusing mostly on the model of bilateral precaution, which attempts to analyze the foundational choice between negligence and strict liability. It also responds to “least-cost avoider” arguments and shows how little progress economic thinking has made in understanding most of tort law. The commonplace conclusion that tort law has easily succumbed to the law-and-economics movement is incorrect.