Posted by: janetfreilich | 20th Jul, 2015

Tort and the Taking or Assigning of Responsibility – John Golden

Post by John Golden

Readers of this blog might be interested in a Jotwell post by Scott Hershovitz of the University of Michigan and the associated draft paper by David Enoch of Hebrew University, Tort Liability and Taking Responsibility. (Thanks to my colleague Susan Morse for pointing this out!) The paper by Enoch explores the question of what benefit a tort system focused on negligence might provide that is absent from an idealized version of New Zealand’s no-fault system of compensation through the Accident Compensation Corporation. As described on page 4 of Enoch’s paper, “[w]e are to imagine the best (realistic) version of the New Zealand” system:

Accidents happen … at roughly the rates they happen elsewhere. People are harmed and compensated. But they are not compensated by “their” harmers. Rather, all risk-creators contribute to a general pool …, and those harmed are then compensated from this general pool.

Having described this idealized New Zealand system, Enoch asks how it might be improved. Enoch suggests that the system might be improved through addition of expectation that harmers “apologize to those they’ve harmed” (p. 4). He suggests that the “New-Zealand-plus-apology” system might be better than the bare New Zealand system because it “answers … some intuitive concerns naturally put in terms of taking responsibility for the consequences of our actions” (p. 23).

Hershovitz responds that tort law doesn’t so much revolve around the taking of responsibility as around the assigning of responsibility. Seeking to shift more attention to the victim as opposed to the harmer, Hershovitz suggests that what is critically “missing in New Zealand” is “an acknowledgment of the wrong,” as well as, possibly, a power in the victims “to vindicate their rights by, among other things, holding the people who hurt them responsible.” Hershovitz indicates that he’ll elaborate on these suggestions in a forthcoming paper. In the meantime, the existing Enoch-Hershovitz exchange might be taken as shedding some light on the nature and potential advantages of legal regimes such as tort and property, as compared to more bureaucratic, relatively depersonalized regimes that might replace them.

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