I. TORT LAW AND JUDGE-MADE RISK REGULATION Although the tale about tort law and risks is almost as old as time itself, the concept of judge-made risk regulation is an odd one out in the world of tort law scholarship. Traditionally, tort law practitioners and (most) scholars understand the tort law system as an individual dispute resolution mechanism with its very raison d'etre to do justice in a bipolar relationship between the plaintiff and the defendant. 1 According to this conception, tort law offers a victim the possibility to hold the wrongdoer accountable for his alleged wrongful behavior and when he or she does so, a civil judge allocates the responsibilities in relation to the risks involved between the proceeding parties. 2 The judge determines the extent to which the plaintiff or the defendant is ex ante responsible for the management of the risk and whether the defendant ex post has to compensate the victim for the costs of the negative consequences of a risk that has materialised. Central to the concept of judge-made risk regulation is, 3 first, the acknowledgement that tort adjudication may also have implications transcending the legal and non-legal interest of the litigating parties; this is indicated by the term "regulation" in the concept. The "risk" part of the concept indicates that judgements may also affect prospective behaviour and that tort law is not only an instrument for the post hoc compensation of wrongful behaviour. In other words, the concept of judge-made risk regulation indicates that a civil judge in a certain way also operates as a "semi-regulator". * 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) (
Although judicial decisions in tort law primarily determine the (correlative) responsibilities and liabilities of the proceeding parties, they also have regulatory effects on non-litigants. In this contribution, these regulatory consequences of tort law will be analysed in light of a court’s quest when it decides a tort claim involving (uncertain) risks. It will be argued that decisions in tort law about uncertain risks involve the possible occurrence of a false positive (eg accepting liability for a non-existing risk) and a false negative (eg denying liability for a real risk). False positives and false negatives have adverse consequences for the parties to the proceedings but, bearing in mind the regulatory effects of tort adjudication, potentially also for non-litigants. While courts might want to avoid both, scientific uncertainties and complexities make it difficult for them to assess to what extent there is a chance of either a false positive or a false negative occurring. Therefore, they necessarily need to determine which party bears the risk of the involved errors. In addition, the question arises whether courts should also take the potential regulatory consequences of their rulings into account and, if yes, how? To that purpose, they can employ a bipolar reasoning style and a multipolar reasoning style. Although tort law is about determining the applicable rights and obligations between the plaintiff and defendant (bipolar reasoning), in light of the regulatory implications of tort law and developments in several tort systems, the relevance of considerations transcending this bipolar relationship (multipolar reasoning) is increasing. However, the possibilities for courts to engage in multipolar reasoning are restrained by the bipolar nature of tort law which gives rise to information and specialism deficits. This will be illustrated by referring to issues in relation to setting the standard of care and examining causation.
District Court of The Hague, 24 June 2015, The Urgenda Foundation v. The Netherlands, ECLI:NL:RBDHA:2015:7145The Dutch State has to ensure that the Dutch emissions in the year 2020 will be at least 25% lower than those in 1990.The parties agree that the severity and scope of the climate problem make it necessary to take measures to reduce greenhouse gas emissions. Based on the State's current policy, the Netherlands will achieve a reduction of 17% at most in 2020, which is below the norm of 25% to 40% for developed countries deemed necessary in climate science and international climate policy.With this order, the court has not entered the domain of politics. The court must provide legal protection, also in cases against the government, while respecting the government's scope for policymaking. For these reasons, the court should exercise restraint and has limited therefore the reduction order to 25%, the lower limit of the 25%-40% norm.
Strict Liability and the Aims of Tort LawBespreking van het proefschrift van mr. A.D. On P r o f . m r . E . R . d e J o n g * 1 Inleiding Een proefschriftonderzoek doen naar strict liability getuigt om verschillende redenen van ambitie. Er zijn al boekenkasten over volgeschreven door toonaangevende rechtswetenschappers en internationale samenwerkingsverbanden. Strict liability is in het verleden bijvoorbeeld een welkom onderwerp geweest in verschillende Europese rechtsvergelijkende projecten. 1 Het is nog niet zo gemakkelijk om aan die discussie iets vernieuwends en origineels toe te voegen. Daarnaast is het een rechtsfiguur dat in verschillende rechtsstelsels uiteenlopende verschijningsvormen kent. 2 Strict liability is een diffuus begrip. * Prof. mr. E.R. de Jong is hoogleraar Privaatrecht aan het Molengraaff Instituut voor Privaatrecht en het Utrecht Centre for Accountability and Liability Law van de Universiteit Utrecht en raadsheer-plaatsvervanger in het gerechtshof Arnhem-Leeuwarden.
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