Introduction:
“… Part II constructs a problem-solving perspective by setting out the conceptual framework: what problems are, what solutions are, and why it is helpful to distinguish between solving a problem and implementing a solution. Part II also identifies the nature and limits of the decisionmaking processes by which individuals and courts solve problems. Part III uses these insights regarding problem solving to explain the various doctrines comprising tort law’s regulative dimensions, including intentional torts, negligence, strict liability, and enterprise liability. It shows how, through a combination of rule specificity and delegation to private ordering, tort doctrine avoids presenting courts with unadjudicable problems. Part IV uses the problem-solving perspectives from Parts II and III to identify and explain tort law’s constitutive dimensions, describing how tort doctrine empowers private actors to define and adjust, ex ante, the legal duties they owe one another and to specify, ex post, the particular ways in which those duties have been breached. As has been suggested, the analyses in Parts III and IV are connected; in many instances the tort doctrines that avoid assigning courts unadjudicable problems do so by delegating relevant problem-solving responsibilities to private risk managers …”
James A. Henderson, Jr, The Constitutive Dimensions of Tort: Promoting Private Solutions to Risk-Management Problems. FLORIDA STATE UNIVERSITY LAW REVIEW Volume 40, No. 2, 2013, 221.
First posted 2013-05-10 18:48:35
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