Judge-made risk regulation and tort law: an introduction

Abstract

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) (<www.esl.eur.nl/research/directory/programmes/bact/>). The conference was organised in collaboration with the Royal Netherlands Academy of Arts and Sciences (KNAW).

In support of “no-fault” civil liability rules for artificial intelligence

“…The law, in fact, binds economic and social activities in order to contribute to the pursuit of welfare; on the other hand, however, the law cannot arbitrarily define its objectives and (especially) the means. The actual functioning of the economic and social contexts faced must be taken into the utmost consideration, in order to develop well-founded, affordable, reliable and effective rules (de Jong et al 2018 ).…”