To Inspect and Make Safe: On the Morally Responsible Liability of Property Owners

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There is currently a stalemate over the correct approach to legal liability. To take a prominent example, it remains a point of contention whether land owners should be held liable for injuries to trespassers. Many of those who insist that land owners should be held liable for injuries to trespassers maintain this for purely economic or pragmatic reasons. In contrast, those on the other side frequently defend their view on the grounds that, in such trespass cases, owners are not morally responsible for the injuries. We maintain that the best way forward for all parties in this debate is to recognize the existence of “morally responsible liability”—of cases where owners qua owners are morally responsible for damages caused by their property. Once this is recognized, the debate can be framed in terms of whether there are economic or pragmatic reasons for legal liability to diverge from morally responsible liability. Unfortunately, there is no good account of morally responsible liability in the literature. Taking lessons from the failings of the few extant accounts, we draw on the work of A. M. Honoré and Jeremy Waldron to develop an account of our own. We argue that owners are morally responsible for damages caused by their property when and because their taking ownership of something leads to increased risk to others. We explain how and why such increases in risk come about, and how our account captures our intuitions concerning various cases, including those concerning injuries to trespassers.

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... This reasoning has been translated, in the realm of intellectual property, into a right to exclude others from using the invention in question. Here we need to keep in mind that, as with property rights for tangible objects , intellectual property rights consist in a so-called "bundle of rights", which may or may not incorporate a series of sub-rights (Faraci and Jaworski 2014). Besides having a right to exclude others, it is of special relevance to find out whether owners of innovations also have the right to use the invention, the right to destroy the invention, and the right to transfer these rights (that is, to alienate the invention). ...
Employing a social justice framework, this book examines the effects of innovation incentives and policies in agriculture. It addresses access to the objects of innovation, the direction of science and the type of innovations that are available, opportunities to participate in research and development, as well as effects on future generations. The book examines the potential value of preventive and reconciliatory measures, drawing on concepts from procedural and restorative justice. As such it offers a comprehensive analysis of the main social justice dimensions affected by agricultural innovation. It gives academics and policy analysts an extensive overview of the deep impact of innovation on society and the environment, and the expectations the general public has from the scientific community.
The scope and type of property rights recognized over the effectiveness of antibiotics have a direct effect on how those claiming ownership engage in the exploitation and stewardship of this scarce resource. We examine the different property claims and rights the four major interest groups are asserting on antibiotics: (i) the inventors, (ii) those demanding that the resource be treated like any other transferable commodity, (iii) those advocating usage restrictions based on good stewardship principles and (iv) those considering the resource as common heritage of humankind.
Innovation in agriculture brings about a number of positive and negative externalities. In this chapter I will focus on one particular externality, which is how innovation affects the consumption of non-renewable or slowly renewable resources that are essential for securing the human right to food in the future. The reproduction and massive use of some of these innovations require the right to destroy the effectiveness of resources that were not created by the inventor nor those buying the inventions. The use of pesticides leads to a loss of their effectiveness due to biological resistance, leading to the destruction of the resource (i.e. of its effectiveness) and genetic pollution (i.e. an increase in resistant biological organisms). Similarly, the use of high-yield crop varieties leads to the loss of soil fertility. While the destruction of these resources is inevitable when using these inventions, there are a number of measures that can be taken to prolong the active life of these resources. Users of these resources can comply with strict usage regulations and exclusive rights holders can assert substantial pressure to make sure users generally comply with such policies.
The moral acceptability of intellectual property rights is often assessed by comparing them to central instances of rights to material property. Critics of intellectual ownership claim to have found significant differences. One of the dissimilarities pertains to the extent of the control intellectual property rights bestow on their holders over the material property of others. The main idea of the criticism of intellectual ownership built around that dissimilarity is that, in light of the comparison with material property rights, the power is excessive. In this article, I assess this objection to intellectual property rights in connection with patents and copyrights. I maintain that it is implausible.
There is a common view, dating back at least to Hume, that property rights presuppose scarcity. This paper is a critical examination of that thesis. In addition to questioning the thesis, the paper highlights the need to divorce the debate over this thesis from the debate over Intellectual Property (IP) rights (the area where it is most frequently applied). I begin by laying out the thesis’ major line of defense. In brief, the argument is that (1) property rights are legitimate only when necessary, (2) necessary only to avoid injury resulting from one party’s use or possession of a good over others’, and (3) that such injury is possible only where there is scarcity. While I accept (1) (at least for the sake of argument), I argue that each of three prominent theories of the justification of property rights cast doubt on (2) and (3). As it turns out, at the theoretical level, there are a number of different ways of dealing with this conflict. However, I argue, no matter which theoretical path one takes, it turns out that the practical implications of the relationship between property rights and scarcity have been woefully misconstrued. Finally, I recount an independent argument for the thesis under consideration and argue that, whether or not it is successful against IP, it does not extend as an argument against ownership of non-scarce goods in general. This serves to further highlight the need to distinguish arguments for the thesis under consideration from arguments against IP.
These highly original essays develop themes implicit in Herbert Hart and the author's Causation in the Law (2nd ed. 1985). Why should we be held responsible for the harm we cause? Honore proposes a theory of responsibility,'outcome responsibility', according to which, to be responsible, it is sufficient to have intervened in the world. To act and to be responsible is to assume certain risks, so that responsibility can be a matter of luck rather than fault or merit. Whether responsibility carries with it moral blame or legal liability is an important but secondary question. With the help of this theory he explains the moral basis of strict liability and of tort law in general; shows when there is a moral difference between positive acts and omissions; and indicates the extent to which the circumstances that cause a wrongdoer to do wrong should affect his responsibility. In 2001, writing in the Neue Juristische Wochenschrift Professor Reinhard Zimmermann selected Responsibility and Fault as one the foreign law books of the year, stressing that the argument that responsibility can be independent of fault would be especially interesting to German lawyers. From reviews of the hardback edition: "the essays present and defend the author's influential philosophical framework for the understanding of responsibility, and clarify its relation to, .. the law of torts and criminal law. The style throughout is elegant and often witty, and complex arguments...are developed with enviable lucidity." -Roderick Bagshaw (Law Quarterly Review) "Honore is never less than interesting and provocative. This splendid collection of essays can be strongly recommended to anyone interested in legal philosophy or in the moral dimensions of agency and responsibility." - R.A. Duff ( Philosophical Quarterly) "a marvellous collection of essays" William Lucy (Professional Negligence) " is a joy to read" -Dennis Klimchuk (Mind)
Tort liability often turns to a substantial degree on an actor's good or bad luck. For example, a driver may be lucky to be more skilled than average, or unlucky to be less. Alternatively, she may be lucky to avoid hitting a pedestrian, or unlucky to hit him, or very unlucky to hit a person with an 'eggshell skull.' Whether a person's conduct falls below the relevant standard of conduct, whether it causes injury, and how much liability results - these matters determine whether someone is a tortfeasor and, if so, how much she will have to pay in damages. And yet each of these factors lies outside of her control. Because tort liability is sensitive to luck in these ways, scholars such as Christopher Schroeder and Jeremy Waldron have condemned tort law as morally arbitrary. Others, such as Justice Holmes and Judge Posner, have seized on tort law's luck-sensitivity to argue that tort - which seems on its face to be a law of wrongs - really has nothing to do with wrongs. Assessments of conduct as right and wrong, they suppose, cannot possibly attribute so much significance to dumb luck. In this Article we are argue that the role of luck in torts does not undermine the case for understanding tort as a law of wrongs, nor does it make the case for dismissing tort law as morally arbitrary. Drawing upon the canonical articles on "moral luck" by Bernard Williams and Thomas Nagel, we argue that is false to suppose that an actor cannot be held responsible for having committed a wrong unless all the relevant features of the situation in which she acted were in principle subject to her control. The Article proceeds by distinguishing and explaining two aspects of tort law's luck-sensitivity: (1) luck regarding whether one's tortious conduct causes damage, and, if so, how much ("causal luck"); and (2) luck regarding whether one's efforts to comply with tort law's objective standards are successful ("compliance luck"). Causal luck, we argue, does not introduce objectionable arbitrariness into tort law. On the contrary, it is a natural and necessary feature of a body of law that is concerned to permit those who have been wronged to redress the wrongs done to them. As to the problem of compliance luck, we explain why it is sensible for courts and legislatures to fashion tort norms of conduct with external measures of compliance, and why such norms can properly count as norms that define "wrongs." We conclude by suggesting that careful attention to the particular senses in which torts are wrongs not only entails the rejection of familiar critiques of tort, but also sheds light on values that tort law can serve within in our legal system, as well as the content and operation of legal and extra-legal notions of wrongdoing and responsibility.
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In this Article, Professor Cupp argues that the Restatement (Third) of Torts’s creativity in addressing duty toward intentional, morally culpable trespassers is both appropriate and helpful for at least two reasons. First, jurisdictions’ approaches to assessing potential liability for injuries to intentional and morally culpable trespassers are untidy and divided. Thus, seeking to articulate a clear dominant rule would be problematic. Second, this unique category of tort claims has a highly disproportionate impact on public acceptance of the civil justice system. How these cases are adjudicated influences much more than the limited number of cases involving tort lawsuits by intentional, morally culpable trespassers. Because of the public’s perception of this subject of tort claims as emblematic of perceived problems with the broader civil justice system, this is an area in which thoughtful leadership by the ALI is particularly important.Professor Cupp then examines two torts cases involving injuries to trespassers that were heavily influential on the development of the Restatement (Third) of Torts's position on this issue. The first is the 1971 Iowa case of Katko v. Briney. The second is the mid-1980s California case of Bodine v. Enterprise High School, which prompted changes to the California Civil Code that effectively eliminated tort liability for land possessors when a criminal trespassers are injured on their property. He concludes by exploring the impact of the use of specific language, such as the word "flagrant," in the Restatement (Third) of Torts when describing criminal trespassers.
Should there be civil liability when a person who could easily and without risk rescue another fails to do so? It is argued that the failure to act does not cause the harm that follows, and that the misfeasance/nonfeasance distinction provides no basis for liability. In spite of this, it is maintained that there can sometimes be a duty to rescue, and even a right to be rescued, even in the absence of a voluntary undertaking or an explicit assumption of responsibility. There are convincing arguments for some sort of legal recognition of a duty to rescue, but these arguments do not support tort liability. Nor is a case for tort liability made with the argument that a growth of tort law in this direction would be compatible with the values most centrally involved in the division between torts and contracts. Furthermore, there is a case against tort liability — namely, that the purpose of tort liability is to compensate, that there are certain sorts of situations in which compensation is apposite, and that failure to rescue does not fit into these categories. Criminal liability is the appropriate way for the law to recognize a duty to rescue.
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