Tsachi Keren-Paz | Keele University (original) (raw)

Papers by Tsachi Keren-Paz

In this article we argue that clients who purchased commercial sex from victims of forced prostit... more In this article we argue that clients who purchased commercial sex from victims of forced prostitution should be liable in torts towards the victims. Such an approach is both normatively defensible and doctrinally feasible. In a previous article we argued that clients' liability should be strict. Here we advance an alternative argument (directed at those refusing to impose strict liability) that clients' liability could be grounded in notions of fault. Taking the risk of submitting victims to non-consensual sex is a faulty behaviour which should lead to liability in battery, and alternatively in negligence. To establish fault-based liability it is sufficient to show that a reasonable client should have known about the existence of the phenomenon of forced prostitution and about his inability to rule-out the possibility that the plaintiff is forced. We list the factors which support the conclusion that such risk-taking is unreasonable, including the low social value of purcha...

Tissue Engineering Part A, 2014

Medical innovation occupies a position somewhere between standard practice and clinical research,... more Medical innovation occupies a position somewhere between standard practice and clinical research, but innovation is primarily intended to benefit an individual patient where standard treatment fails. Medical innovations in the area of regenerative medicine have the potential to completely transform medical practice, but rely upon some major revision to the nature of treatments beyond drug-based therapies. There is considerable investment in scientific and clinical research, but further attention could be paid to legal barriers to medical innovation imposed by the threat of medical malpractice. We survey in this article the legal framework for making determinations of medical malpractice in general, and highlight the issues specific to innovative treatments. In essence, liability could be imposed for failing to adequately inform the patient about the innovative nature of the suggested therapy or based on the fact that the risks outweighed the benefits. As for the latter, we examine whether liability is likely to be based merely on deviating from existing practice or on an examination on the merits of the treatments' risks and benefits. The facts that some risks are unforeseeable and some benefits are external to the patient complicate negligence determinations. The first fact relates to the problem of judging adverse events in hindsight; the second, to the obligation to make decisions based on the patient's best interest and avoid conflict of interests. In addition, we evaluate the relationship between the obligations to secure the patient's informed consent and to avoid clinical negligence. We identify the need for further research to examine the significance of the putative anti-innovation bias that current liability regimen has, and to examine whether a move to strict liability might avoid such bias, while being fair to patients who contribute for the advancement of medical knowledge by participating in innovative therapies.

Journal of European Tort Law, 2014

SSRN Electronic Journal, 2000

The purpose of this article is to examine two issues central to the tort of negligence: the role ... more The purpose of this article is to examine two issues central to the tort of negligence: the role of reliance in establishing a duty of care; and the relationship between the harm-within-risk rule and the rule excluding liability for coincidental harm as tests for legal causation. I will use the unusual facts of Bhamra v Dubb in which the defendant caterer was under a duty not to serve eggs for religious reasons, and the guest suffered from a known egg allergy and ultimately died, as a platform for this analysis.

While the Court of Appeal was correct in establishing a duty towards Bhamra on Bhamra’s reliance that eggs would not be served, it erred in limiting the duty to those aware that they suffer from egg allergy. Assuming there are reasons to avoid imposing a general duty on caterers towards those who are foreseeably people of ordinary susceptibility, guests avoiding a product for religious reasons have informational and medical susceptibilities which justify that a duty be owed to them. More generally, reliance on misrepresentation that a food served is ‘free from’ could justify duty and liability even in the absence of a claimant’s knowledge of his egg allergy.

As a matter of legal causation, I defend the position (recently challenged in the literature) that the rule against liability for coincidences is different from the harm-within-risk rule. The injury suffered by a (hypothetical) guest unaware of his egg allergy is neither coincidental nor outside the scope of the relevant risk. It is not a coincidence, since the risk of suffering an allergy injury is typically increased by a ‘free from’ misrepresentation. The harm is within the relevant risk, since the guest’s informational vulnerability is one of the reasons which makes serving him with eggs negligent – the fear he would suffer also a physical injury.

In this article I examine the case for restitutionary-based strict liability towards patients who... more In this article I examine the case for restitutionary-based strict liability towards patients who were injured from risks which were unforeseeable at the time of treatment: involuntarily, the patient has advanced knowledge which will prevent harm to future patients. This situation is analogous to necessitous interventions, so it is fair to compensate the patient for the costs she incurred in providing this benefit. The argument is based on both an emerging consensus by English restitution scholars about the appropriate scope of a common law necessity doctrine, and on comparative approach of the civilian concept of negotiorum gestio and the hybrid Israeli solution to this topic.  Professor of Private Law, Keele University. t.keren-paz@keele.ac.uk. For helpful comments on previous drafts I would like to thank

Medical innovation occupies a position somewhere between standard practice and clinical research,... more Medical innovation occupies a position somewhere between standard practice and clinical research, but innovation is primarily intended to benefit an individual patient where standard treatment fails. Medical innovations in the area of regenerative medicine have the potential to completely transform medical practice but rely upon some major revision to the nature of treatments beyond drug based therapies. There is considerable investment in scientific and clinical research, but further attention could be paid to legal barriers to medical innovation imposed by the threat of medical malpractice.
We survey in this paper the legal framework for making determinations of medical malpractice in general, and highlight the issues specific to innovative treatments. In essence, liability could be imposed for failing to adequately inform the patient about the innovative nature of the suggested therapy, or based on the fact that the risks outweighed the benefits. As for the latter, we examine whether liability is likely to be based merely on deviating from existing practice, or on an examination on the merits of the treatments’ risks and benefits. The facts that some risks are unforeseeable and some benefits are external to the patient complicate negligence determinations. The first fact relates to the problem of judging adverse events in hindsight; the second, to the obligation to make decisions based on the patient’s best interest and avoid conflict of interests.
In addition, we evaluate the relationship between the obligations to secure the patient’s informed consent and to avoid clinical negligence. We identify the need for further research to examine the significance of the putative anti-innovation bias that current liability regime has, and to examine whether a move to strict liability might avoid such bias, while being fair to patients who contribute for the advancement of medical knowledge by participating in innovative therapies.

Sex Trafficking: A Private Law Response examines existing and potential causes of action against ... more Sex Trafficking: A Private Law Response examines existing and potential causes of action against sex traffickers, clients and the state and argues for fair and effective private law remedies. Combining a theoretical inquiry about the borders of liability in torts and restitution with a political commitment to protecting the interests of victims of sex trafficking, this book offers a comparative doctrinal and socio-legal analysis of private law remedies, their justification, and their effectiveness. All those directly involved in breaching the rights of victims of sex trafficking should compensate them for their losses, and make restitution of the profits made at their expense.

The book calls for extending the scope of traffickers’ liability and for extending the scope of available defendants — beyond traffickers — to clients and the state. The remedies for traffickers’ obligations to make restitution of profits and to compensate their victims in torts should be cumulative. The state should make restitution to victims of what it confiscated from traffickers as proceeds of crime, since the money belongs to victims, not to traffickers. Clients who had direct contact with victims should be strictly liable to victims in battery, and more controversially, in the proprietary tort of conversion. Clients who purchased commercial sex indiscriminately — where there is the possibility that their consumption contributes to trafficking — should be liable to victims under a theory of negligence, although such liability should be limited in terms of time, geographical scope and amount.

Some of the claims made in the book and issues discussed include recognising a duty of care for contribution to trafficking by posing demand in the market; overcoming complex factual causation problems; deviating from the principle of full compensation by imposing liability on clients for an amount falling short from her entire damage from being trafficked, and yet not purely proportional; allowing the victim to sue clients in conversion for the direct sexual contact with her, as if she were a chattel; imposing liability on clients for direct contact in battery, despite the victims’ apparent consent to the sexual contact; expanding the exercise of tracing of proceeds to what is paid by the client to the trafficker in exchange for the victim’s forced labour; viewing the trafficker as the victim’s fiduciary; and challenging the traditional position that a claim by a non-forced prostitute against a client who received a service and refuses to pay is barred as contravening the public order.

To the anti-trafficking literature and the feminist debate on prostitution, the book offers a course of action which enables to transcend some of these debates, is empowering to victims and cannot be accused of forcing the status of victims on consenting sex workers.

Keywords: Torts, Restitution, Sex Trafficking, Prostitution, Negligence, Battery, Conversion, Strict Liability

In this paper I make two sets of comments about Coleman’s analysis of tort law in Risks and Wrong... more In this paper I make two sets of comments about Coleman’s analysis of tort law in Risks and Wrongs. First, I highlight the limited role of corrective justice (CJ) in explaining tort liability and the role of other considerations. Here my account is partially compatible with Coleman’s. At time it develops existing themes; at other times it completes his account by referring to issues neglected in Coleman’s analysis; yet at other times it criticises several aspects of Coleman’s account.
In particular I examine Colman’s treatment of distributive justice (DJ) constraints on the operation of CJ, his unjustified exclusion of egalitarian considerations in determining the scope of liability, the relevance of DJ in determining the content of CJ duties to repair, and a potential overlap between the goals of deterrence and CJ. I also critically examine his view about the issue of institutional competence and his account of products liability.
My second set of comments refers to Coleman’s analytical account of what CJ is – what liability is explicable as a matter of CJ and what is not. I have several queries about the usefulness and cogency of important parts of this account including the distinction between wrongs and wrongful gains, the relationship between wrongdoing, wrongs and liability rules, and Coleman’s account of wrongdoing which is, at the same time, too wide and too narrow.

Tsachi Keren-Paz Keele University - Keele School of Law July 13, 2010 VULNERABLE SUBJECTIV... more Tsachi Keren-Paz
Keele University - Keele School of Law

July 13, 2010

VULNERABLE SUBJECTIVITIES: MOBILITY, NORMATIVE SPACES, AND THE FEMALE LEGAL SUBJECT, S. FitzGerald, ed., Routledge, Forthcoming

Abstract:
This chapter examines the possible grounds on which the state of destination could be under an obligation to assist victims of trafficking, and the scope of such obligation. In particular, I will evaluate the relative importance of the concept of vulnerability in interrogating such a ground, in comparison to other grounds. After distinguishing between legal and moral obligations the chapter identifies, in the context of trafficking, four main grounds on which to recognise the state’s obligation to assist victims: (1) fault by the state in the way it dealt with victims; (2) fairness - the fact that the state's acts and omissions (even if not faulty) harmed victims and benefited the state and its residents; (3) the state's failure (even if not faulty) to protect the victim from a serious violation of her rights by a third party within its jurisdiction - such obligation could be linked with a social contract theory; and (4) welfare state rationale - the obligation to meet basic needs and assist the vulnerable. These grounds are distinguished from an obligation to make restitution to victims of any direct benefit received by the state at victims’ expense.

Keywords: Compensation, Restitution, Victims Of Trafficking, Moral Obligations, State Liability

In AT v Dulghieru four victims of human trafficking successfully sued two of their traffickers fo... more In AT v Dulghieru four victims of human trafficking successfully sued two of their traffickers for sexual enslavement for periods of one to two months. The claimants were awarded a total of ₤601,000 in damages for pain and suffering and loss of amenity, aggravated damages and exemplary damages. The court held that the purpose of exemplary damages in cases like this is the prevention of unjust enrichment. This case comment briefly analyses some of the typical issues raised in such claims, including the basis of liability, proving pecuniary damages and traffickers’ liability for victims’ detention by the authorities. Most importantly, it suggests what should be the relationship between compensation, restitution and punitive damages. Victims of trafficking should be awarded both significant damages for their sexual enslavement and all the profit made at their expense. In addition, human trafficking is an activity which justifies the award of a truly punitive element in exemplary damages, over and above full restitution. The comment notes the confusion between the punitive and restitutionary roles of exemplary damages revealed by the case (and other English decisions) and suggests that the court might have failed to award full restitution to the claimants.

Medical Law Review, 2010

for useful discussions and comments on previous drafts, to Shlomi Bahri, Ram Gamliel, and Avi Zan... more for useful discussions and comments on previous drafts, to Shlomi Bahri, Ram Gamliel, and Avi Zanco for excellent research assistance, and to Colman Law School for its financial support of this project. 1 Of course, criminal and disciplinary proceedings, if existing, are likely to produce significant reputation loss. The effect of these proceedings on the analysis is examined briefly below. 2 Other regimes (such as reversing the burden of proof ) also create and distribute reputation loss to a different extent. Space limitations prevent me from exploring this point here.

In this paper, we argue that clients who purchase commercial sex from victims of forced prostitut... more In this paper, we argue that clients who purchase commercial sex from victims of forced prostitution should be strictly liable in torts towards the victims. Such an approach is both normatively defensible and doctrinally feasible. Fairness and equality demand that clients would compensate victims, even if one refuses to acknowledge that purchasing sex from a prostitute who might be a victim is a faulty behaviour. Clients profit from the activity of purchasing commercial sex, so fairness demands they will bear the costs they impose on victims who are unable to refuse the contact. Strict liability will bring about desirable distributive results along the lines of sex, class and race. Imposing strict liability will ensure consistency of the English law of trespass and it is supported by several instrumental considerations.

Such strict liability could be grounded in battery, despite the appearance of apparent consent by the victim to sell sexual services to the client. This is so for two main reasons. First, the extreme coercion operated on the victim renders her consent void so that an innocent third party cannot rely on the appearance of consent. Secondly, the client should be considered as having constructive notice with respect to the trafficker’s coercion. Our argument is supported by – but does not hinge upon accepting – the insight that the client’s behaviour is ultimately faulty.

Keywords: Torts, Strict Liability, Battery Trafficking, Prostitution

Law and Philosophy, 2010

In this article I argue that clients who purchase commercial sex from forced prostitutes should b... more In this article I argue that clients who purchase commercial sex from forced prostitutes should be strictly liable in tort towards the sex-slaves. Such an approach is both normatively defensible and doctrinally feasible. As I have argued elsewhere, fairness and equality demand that clients compensate sex-slaves even if one refuses to acknowledge that fault is involved in purchasing sex from a prostitute who might be forced. In this article I argue that such strict liability could be grounded in the tort of conversion, and not only (as argued elsewhere) in battery. Since the quintessential experience of sex-slaves is that of being treated as chattels, the appropriate legal response is to allow them to benefit from the strict liability imposed on those who interfere with an owner’s dominion over his property. Accordingly, sex-slaves should be viewed as both subjects and objects. As subjects they can sue clients for the violation of their sexual autonomy manifested by their treatment as objects. This approach is both advantageous to sex-slaves, in the sense it affords them protection that might not otherwise exist, and fair, since the ultimate response to the objectification of sex-slaves by clients should be to afford the former a proprietary-based claim against the latter. I further explain why my approach is not problematic on conceptual grounds, anti-commodification sentiments or feminist concerns with the symbolic message of my solution: that the law treats women as property.

The problem of sex trafficking, while stirring much academic interest, has not triggered almost a... more The problem of sex trafficking, while stirring much academic interest, has not triggered almost any analysis from a private law perspective. This essay begins to fill-in this gap, by paying attention to victims' claims against traffickers in unjust enrichment.

First I present an analytical framework to the litigation of private-law responses against traffickers while distinguishing between loss- and gain-based claims.

Second, I argue that gain-based claims should take the form of unjust enrichment cause of action, rather than claims in labor (or contract) law. Channeling victims' claims to labor courts is undesirable for conceptual, expressive and practical reasons. A labor response overlooks lack of consent, banalizes trafficking as a labor dispute (rather than viewing it as slavery), short-changes victims with respect to the size of the awards, and burdens them with the need to file multiple law-suits. It is lacking in terms of deterrence, and in terms of corrective, distributive and retributive justice. I explain how labor law's practical deficiency derives from its conceptual inadequacy to deal with trafficking, and that applying protective labor law to victims' claims does not solve the conceptual problem, and might worsen the practical problem. Therefore I criticize the tendency of Israeli lower courts to channel gain-based claims to labor courts and to view such claims as claims for wages. Alongside this I argue, that even within a labor framework the labor court awarded victims much less than it should have.

Third, I examine the possibility to ground the gain-based claims (enslaving the victim and selling her) in conversion. After explaining the practical limitation of such a claim, I present a counter-intuitive claim (which will be developed further in future work) that the conceptualization of the victim as property might be desirable. The relationship between the practical and symbolic effects of labor, conversion and unjust enrichment claims is discussed.

Fourth, I conceptualize the victim's unjust enrichment claim. I distinguish between the wrong involved in forcing the victim to provide sex services and that involved in taking the fruits of the enslavement. Accordingly I distinguish between two subtraction claims (duress and appropriation) and the principle of no profiting from one's serious wrongdoing. I flash out the major doctrinal ramifications from an unjust enrichment claim: that inalienability and illegality claims should not bar victim's recovery, that victims have a right to all proceeds made from their enslavement--so no deduction should be allowed to reflect traffickers' expenses--and that the burden should shift to defendants to disprove their enrichment.

Fifth, I defend the view that traffickers' liability should be joint and several with respect to both loss- and gain-based claims. At the very least, traffickers who sold the victim should be liable with the buyers to compensation and restitution.

Sixth, I argue that the victim's loss- and gain-based remedies should be cumulative and not alternative, based on both corrective justice and numerous policy considerations. Such novel claim has potential ramifications to other instances in which a breach of duty caused both loss to the plaintiff and gain to the defendant.

Seventh, I sketch required reforms with respect to awarding damages, and improving victims' access to justice and recoverability of awards.

Finally, I note on the question whether the analysis is applicable to other victims of trafficking and to non-forced sex workers.

Keywords: Human Trafficking, Sex-Trafficking, Slavery, Forced Prostitution, Unjust Enrichment, Restitution for wrongs, Conversion, Labor law, Corrective Justice, Distributive Justice, Equality, Retributive Justice, Deterrence

This book argues for the incorporation of an egalitarian sensitivity into tort law, and more g... more This book argues for the incorporation of an egalitarian sensitivity into tort law, and more generally, into private law. None of the four main arguments pitched against private law egalitarianism - illegitimacy, randomness, excessive cost and ineffectiveness - can justify a conclusion that tort law has no role in promoting equality. After illuminating the existing regressive nature of tort law and offering an applicatory framework for incorporating egalitarian sensitivity into tort doctrine, the book examines in greater detail three aspects of the tort of negligence: means sensitive standard of care, maternal prenatal duty and the use of negligence to combat discrimination. The book further highlights some required changes to the principle of full compensation in order to make damages more egalitarian.

Keywords: Torts, Distributive Justice, Equality, Negligence

An attempt to promote equality by reformulating private law doctrine often faces the objection th... more An attempt to promote equality by reformulating private law doctrine often faces the objection that such an attempt en-croaches excessively on one's predictability and liberty interests, especially given the alternative to redistribute through the tax system. In this article, the author attempts to reveal the short-comings of this critique.

Concerning the effect of private law redistribution on predictability, the author argues that insurance enables policy-makers to create redistributive rules with little lost-predictability cost. Moreover, contrary to common belief, in some instances, the more egalitarian rule would also be more predictable. With respect to liberty, the author shows that, in some cases, private law redistribution might be more effective than the tax system in improving the lot of the disadvantaged. This outcome is espe-cially likely when the normativity of law is taken into account, as well as the understanding that advancing equality involves more than progressive redistribution of wealth in society. In such cases, even if private law redistribution costs more in terms of liberty, it might be justified for its better promotion of equal-ity. Furthermore, the critique regarding excessive encroachment on liberty concentrates exclusively on the liberty interests of the well-to-do and neglects the liberty interests of the disadvan-taged. When the latter are taken into account, it is less clear that private law redistribution actually costs more in terms of liberty.

Private law redistribution might be justified on two addi-tional grounds. First, its symbolic message might be more em-powering to the disadvantaged. Private law redistribution can be seen as rectifying the existing regressive distributive effects of private law as opposed to being an act of charity. Second, even if tax redistribution enjoys theoretical superiority to private law redistribution, the latter might need to be pursued if the former is not likely to take place.

Keywords: Tort Law, Equality, Distributive Justice, Liberty

Social & Legal Studies, 2005

In this article I seek to apply a general claim about tort law -that it should promote as one of ... more In this article I seek to apply a general claim about tort law -that it should promote as one of its goals a better attainment of distributive justice -to the context of maternal prenatal duty. My argument is that, contrary to common belief among lawyers, the negative burden that a maternal prenatal duty of care would place on potential defendants' autonomy, although significant, is not a convincing reason in itself to oppose such a duty. Crucial to this argument is the fact that it is the autonomy of women that is limited. Moreover, and somewhat counter-intuitively, I argue that a genuine distributive-egalitarian concern can in fact support the imposition of liability, within the limits of actual insurance coverage, when certain conditions are met, at least according to one understanding of this concern.

Theoretical Inquiries in Law, 2003

conclusion that the normative evaluation of one's action as negligent or not cannot be separated ... more conclusion that the normative evaluation of one's action as negligent or not cannot be separated from the distributive results that this action entails. The egalitarian concern works at the duty stage as an excuse for not imposing liability for wrongful activity. In contrast, at the standard stage, it works as a justification that turns an otherwise wrongful activity into a legitimate one. My claim is that morally we should usually expect more care from the better-off than from the disadvantaged. Findings of negligence are based on the failure to balance properly between one's interests and those of another. In deciding to what extent the defendant should burden herself in order to prevent a loss to potential victims, one morally relevant criterion is the relative ability of the injurer and victim to bear precaution costs and expected accident loss, respectively.

This Article responds to one challenge to the aspiration to incorporate distributive-egalitarian ... more This Article responds to one challenge to the aspiration to incorporate distributive-egalitarian sensitivity into tort law. Arguably, any attempt to effect redistribution by means of tort law is bound to be random and, hence, unjust. There are two facets to the randomness charge: partiality of the participants and crudeness of the distributive result. I argue that the randomness charge, in both its aspects, does not provide a convincing reason to oppose infusing tort law with distributive-egalitarian sensitivity. The charge of randomness is based on two factual assumptions and one normative claim: namely, that existing tort law has no significant redistributive effect; that redistribution through tort law is especially susceptible to the charge of randomness; and that random progressive redistribution is less fair than the status quo distribution. In this Article, I challenge all three claims. I first argue that existing tort law has inevitable distributive consequences and that these consequences are predominantly regressive. I then raise four challenges to the assumption that distribution through tort law is partial, arguing that either such distribution is not partial at all or that it is no more partial than the distribution produced by alternative mechanisms: localized distributive justice; participation through insurance; the complement thesis; and no comparative randomness. Next, I develop a methodology for comparing the fairness of the post-tort litigation redistribution with that of the status quo distribution. This methodology is based on the respective proximity of these distributions to the reference point of society's ideal distributive scheme. Applying this methodology, I argue that partial progressive redistribution is fairer than the status quo distribution. Regarding the problem of partiality of participants, I maintain that any injustice that arises from treating differently members of the same group is overridden by the more egalitarian distribution achieved between the different groups, namely, that the inter-group justice outweighs the intra-group injustice. With respect to the problem of the crudeness of the distributive result, I posit that adopting a guideline for redistribution that is pro-disadvantaged rather than anti-well-to-do ensures the superiority of the partial progressive redistribution relative to the status quo. Furthermore, even under a more radical anti-well-to-do benchmark for redistribution, that superiority might still be maintained. Finally, I apply my three claims to the context of gender inequality and lost earnings. I argue that the theoretical framework developed in this Article provides support for gender-neutral damages awards for lost earnings.

In this article we argue that clients who purchased commercial sex from victims of forced prostit... more In this article we argue that clients who purchased commercial sex from victims of forced prostitution should be liable in torts towards the victims. Such an approach is both normatively defensible and doctrinally feasible. In a previous article we argued that clients' liability should be strict. Here we advance an alternative argument (directed at those refusing to impose strict liability) that clients' liability could be grounded in notions of fault. Taking the risk of submitting victims to non-consensual sex is a faulty behaviour which should lead to liability in battery, and alternatively in negligence. To establish fault-based liability it is sufficient to show that a reasonable client should have known about the existence of the phenomenon of forced prostitution and about his inability to rule-out the possibility that the plaintiff is forced. We list the factors which support the conclusion that such risk-taking is unreasonable, including the low social value of purcha...

Tissue Engineering Part A, 2014

Medical innovation occupies a position somewhere between standard practice and clinical research,... more Medical innovation occupies a position somewhere between standard practice and clinical research, but innovation is primarily intended to benefit an individual patient where standard treatment fails. Medical innovations in the area of regenerative medicine have the potential to completely transform medical practice, but rely upon some major revision to the nature of treatments beyond drug-based therapies. There is considerable investment in scientific and clinical research, but further attention could be paid to legal barriers to medical innovation imposed by the threat of medical malpractice. We survey in this article the legal framework for making determinations of medical malpractice in general, and highlight the issues specific to innovative treatments. In essence, liability could be imposed for failing to adequately inform the patient about the innovative nature of the suggested therapy or based on the fact that the risks outweighed the benefits. As for the latter, we examine whether liability is likely to be based merely on deviating from existing practice or on an examination on the merits of the treatments' risks and benefits. The facts that some risks are unforeseeable and some benefits are external to the patient complicate negligence determinations. The first fact relates to the problem of judging adverse events in hindsight; the second, to the obligation to make decisions based on the patient's best interest and avoid conflict of interests. In addition, we evaluate the relationship between the obligations to secure the patient's informed consent and to avoid clinical negligence. We identify the need for further research to examine the significance of the putative anti-innovation bias that current liability regimen has, and to examine whether a move to strict liability might avoid such bias, while being fair to patients who contribute for the advancement of medical knowledge by participating in innovative therapies.

Journal of European Tort Law, 2014

SSRN Electronic Journal, 2000

The purpose of this article is to examine two issues central to the tort of negligence: the role ... more The purpose of this article is to examine two issues central to the tort of negligence: the role of reliance in establishing a duty of care; and the relationship between the harm-within-risk rule and the rule excluding liability for coincidental harm as tests for legal causation. I will use the unusual facts of Bhamra v Dubb in which the defendant caterer was under a duty not to serve eggs for religious reasons, and the guest suffered from a known egg allergy and ultimately died, as a platform for this analysis.

While the Court of Appeal was correct in establishing a duty towards Bhamra on Bhamra’s reliance that eggs would not be served, it erred in limiting the duty to those aware that they suffer from egg allergy. Assuming there are reasons to avoid imposing a general duty on caterers towards those who are foreseeably people of ordinary susceptibility, guests avoiding a product for religious reasons have informational and medical susceptibilities which justify that a duty be owed to them. More generally, reliance on misrepresentation that a food served is ‘free from’ could justify duty and liability even in the absence of a claimant’s knowledge of his egg allergy.

As a matter of legal causation, I defend the position (recently challenged in the literature) that the rule against liability for coincidences is different from the harm-within-risk rule. The injury suffered by a (hypothetical) guest unaware of his egg allergy is neither coincidental nor outside the scope of the relevant risk. It is not a coincidence, since the risk of suffering an allergy injury is typically increased by a ‘free from’ misrepresentation. The harm is within the relevant risk, since the guest’s informational vulnerability is one of the reasons which makes serving him with eggs negligent – the fear he would suffer also a physical injury.

In this article I examine the case for restitutionary-based strict liability towards patients who... more In this article I examine the case for restitutionary-based strict liability towards patients who were injured from risks which were unforeseeable at the time of treatment: involuntarily, the patient has advanced knowledge which will prevent harm to future patients. This situation is analogous to necessitous interventions, so it is fair to compensate the patient for the costs she incurred in providing this benefit. The argument is based on both an emerging consensus by English restitution scholars about the appropriate scope of a common law necessity doctrine, and on comparative approach of the civilian concept of negotiorum gestio and the hybrid Israeli solution to this topic.  Professor of Private Law, Keele University. t.keren-paz@keele.ac.uk. For helpful comments on previous drafts I would like to thank

Medical innovation occupies a position somewhere between standard practice and clinical research,... more Medical innovation occupies a position somewhere between standard practice and clinical research, but innovation is primarily intended to benefit an individual patient where standard treatment fails. Medical innovations in the area of regenerative medicine have the potential to completely transform medical practice but rely upon some major revision to the nature of treatments beyond drug based therapies. There is considerable investment in scientific and clinical research, but further attention could be paid to legal barriers to medical innovation imposed by the threat of medical malpractice.
We survey in this paper the legal framework for making determinations of medical malpractice in general, and highlight the issues specific to innovative treatments. In essence, liability could be imposed for failing to adequately inform the patient about the innovative nature of the suggested therapy, or based on the fact that the risks outweighed the benefits. As for the latter, we examine whether liability is likely to be based merely on deviating from existing practice, or on an examination on the merits of the treatments’ risks and benefits. The facts that some risks are unforeseeable and some benefits are external to the patient complicate negligence determinations. The first fact relates to the problem of judging adverse events in hindsight; the second, to the obligation to make decisions based on the patient’s best interest and avoid conflict of interests.
In addition, we evaluate the relationship between the obligations to secure the patient’s informed consent and to avoid clinical negligence. We identify the need for further research to examine the significance of the putative anti-innovation bias that current liability regime has, and to examine whether a move to strict liability might avoid such bias, while being fair to patients who contribute for the advancement of medical knowledge by participating in innovative therapies.

Sex Trafficking: A Private Law Response examines existing and potential causes of action against ... more Sex Trafficking: A Private Law Response examines existing and potential causes of action against sex traffickers, clients and the state and argues for fair and effective private law remedies. Combining a theoretical inquiry about the borders of liability in torts and restitution with a political commitment to protecting the interests of victims of sex trafficking, this book offers a comparative doctrinal and socio-legal analysis of private law remedies, their justification, and their effectiveness. All those directly involved in breaching the rights of victims of sex trafficking should compensate them for their losses, and make restitution of the profits made at their expense.

The book calls for extending the scope of traffickers’ liability and for extending the scope of available defendants — beyond traffickers — to clients and the state. The remedies for traffickers’ obligations to make restitution of profits and to compensate their victims in torts should be cumulative. The state should make restitution to victims of what it confiscated from traffickers as proceeds of crime, since the money belongs to victims, not to traffickers. Clients who had direct contact with victims should be strictly liable to victims in battery, and more controversially, in the proprietary tort of conversion. Clients who purchased commercial sex indiscriminately — where there is the possibility that their consumption contributes to trafficking — should be liable to victims under a theory of negligence, although such liability should be limited in terms of time, geographical scope and amount.

Some of the claims made in the book and issues discussed include recognising a duty of care for contribution to trafficking by posing demand in the market; overcoming complex factual causation problems; deviating from the principle of full compensation by imposing liability on clients for an amount falling short from her entire damage from being trafficked, and yet not purely proportional; allowing the victim to sue clients in conversion for the direct sexual contact with her, as if she were a chattel; imposing liability on clients for direct contact in battery, despite the victims’ apparent consent to the sexual contact; expanding the exercise of tracing of proceeds to what is paid by the client to the trafficker in exchange for the victim’s forced labour; viewing the trafficker as the victim’s fiduciary; and challenging the traditional position that a claim by a non-forced prostitute against a client who received a service and refuses to pay is barred as contravening the public order.

To the anti-trafficking literature and the feminist debate on prostitution, the book offers a course of action which enables to transcend some of these debates, is empowering to victims and cannot be accused of forcing the status of victims on consenting sex workers.

Keywords: Torts, Restitution, Sex Trafficking, Prostitution, Negligence, Battery, Conversion, Strict Liability

In this paper I make two sets of comments about Coleman’s analysis of tort law in Risks and Wrong... more In this paper I make two sets of comments about Coleman’s analysis of tort law in Risks and Wrongs. First, I highlight the limited role of corrective justice (CJ) in explaining tort liability and the role of other considerations. Here my account is partially compatible with Coleman’s. At time it develops existing themes; at other times it completes his account by referring to issues neglected in Coleman’s analysis; yet at other times it criticises several aspects of Coleman’s account.
In particular I examine Colman’s treatment of distributive justice (DJ) constraints on the operation of CJ, his unjustified exclusion of egalitarian considerations in determining the scope of liability, the relevance of DJ in determining the content of CJ duties to repair, and a potential overlap between the goals of deterrence and CJ. I also critically examine his view about the issue of institutional competence and his account of products liability.
My second set of comments refers to Coleman’s analytical account of what CJ is – what liability is explicable as a matter of CJ and what is not. I have several queries about the usefulness and cogency of important parts of this account including the distinction between wrongs and wrongful gains, the relationship between wrongdoing, wrongs and liability rules, and Coleman’s account of wrongdoing which is, at the same time, too wide and too narrow.

Tsachi Keren-Paz Keele University - Keele School of Law July 13, 2010 VULNERABLE SUBJECTIV... more Tsachi Keren-Paz
Keele University - Keele School of Law

July 13, 2010

VULNERABLE SUBJECTIVITIES: MOBILITY, NORMATIVE SPACES, AND THE FEMALE LEGAL SUBJECT, S. FitzGerald, ed., Routledge, Forthcoming

Abstract:
This chapter examines the possible grounds on which the state of destination could be under an obligation to assist victims of trafficking, and the scope of such obligation. In particular, I will evaluate the relative importance of the concept of vulnerability in interrogating such a ground, in comparison to other grounds. After distinguishing between legal and moral obligations the chapter identifies, in the context of trafficking, four main grounds on which to recognise the state’s obligation to assist victims: (1) fault by the state in the way it dealt with victims; (2) fairness - the fact that the state's acts and omissions (even if not faulty) harmed victims and benefited the state and its residents; (3) the state's failure (even if not faulty) to protect the victim from a serious violation of her rights by a third party within its jurisdiction - such obligation could be linked with a social contract theory; and (4) welfare state rationale - the obligation to meet basic needs and assist the vulnerable. These grounds are distinguished from an obligation to make restitution to victims of any direct benefit received by the state at victims’ expense.

Keywords: Compensation, Restitution, Victims Of Trafficking, Moral Obligations, State Liability

In AT v Dulghieru four victims of human trafficking successfully sued two of their traffickers fo... more In AT v Dulghieru four victims of human trafficking successfully sued two of their traffickers for sexual enslavement for periods of one to two months. The claimants were awarded a total of ₤601,000 in damages for pain and suffering and loss of amenity, aggravated damages and exemplary damages. The court held that the purpose of exemplary damages in cases like this is the prevention of unjust enrichment. This case comment briefly analyses some of the typical issues raised in such claims, including the basis of liability, proving pecuniary damages and traffickers’ liability for victims’ detention by the authorities. Most importantly, it suggests what should be the relationship between compensation, restitution and punitive damages. Victims of trafficking should be awarded both significant damages for their sexual enslavement and all the profit made at their expense. In addition, human trafficking is an activity which justifies the award of a truly punitive element in exemplary damages, over and above full restitution. The comment notes the confusion between the punitive and restitutionary roles of exemplary damages revealed by the case (and other English decisions) and suggests that the court might have failed to award full restitution to the claimants.

Medical Law Review, 2010

for useful discussions and comments on previous drafts, to Shlomi Bahri, Ram Gamliel, and Avi Zan... more for useful discussions and comments on previous drafts, to Shlomi Bahri, Ram Gamliel, and Avi Zanco for excellent research assistance, and to Colman Law School for its financial support of this project. 1 Of course, criminal and disciplinary proceedings, if existing, are likely to produce significant reputation loss. The effect of these proceedings on the analysis is examined briefly below. 2 Other regimes (such as reversing the burden of proof ) also create and distribute reputation loss to a different extent. Space limitations prevent me from exploring this point here.

In this paper, we argue that clients who purchase commercial sex from victims of forced prostitut... more In this paper, we argue that clients who purchase commercial sex from victims of forced prostitution should be strictly liable in torts towards the victims. Such an approach is both normatively defensible and doctrinally feasible. Fairness and equality demand that clients would compensate victims, even if one refuses to acknowledge that purchasing sex from a prostitute who might be a victim is a faulty behaviour. Clients profit from the activity of purchasing commercial sex, so fairness demands they will bear the costs they impose on victims who are unable to refuse the contact. Strict liability will bring about desirable distributive results along the lines of sex, class and race. Imposing strict liability will ensure consistency of the English law of trespass and it is supported by several instrumental considerations.

Such strict liability could be grounded in battery, despite the appearance of apparent consent by the victim to sell sexual services to the client. This is so for two main reasons. First, the extreme coercion operated on the victim renders her consent void so that an innocent third party cannot rely on the appearance of consent. Secondly, the client should be considered as having constructive notice with respect to the trafficker’s coercion. Our argument is supported by – but does not hinge upon accepting – the insight that the client’s behaviour is ultimately faulty.

Keywords: Torts, Strict Liability, Battery Trafficking, Prostitution

Law and Philosophy, 2010

In this article I argue that clients who purchase commercial sex from forced prostitutes should b... more In this article I argue that clients who purchase commercial sex from forced prostitutes should be strictly liable in tort towards the sex-slaves. Such an approach is both normatively defensible and doctrinally feasible. As I have argued elsewhere, fairness and equality demand that clients compensate sex-slaves even if one refuses to acknowledge that fault is involved in purchasing sex from a prostitute who might be forced. In this article I argue that such strict liability could be grounded in the tort of conversion, and not only (as argued elsewhere) in battery. Since the quintessential experience of sex-slaves is that of being treated as chattels, the appropriate legal response is to allow them to benefit from the strict liability imposed on those who interfere with an owner’s dominion over his property. Accordingly, sex-slaves should be viewed as both subjects and objects. As subjects they can sue clients for the violation of their sexual autonomy manifested by their treatment as objects. This approach is both advantageous to sex-slaves, in the sense it affords them protection that might not otherwise exist, and fair, since the ultimate response to the objectification of sex-slaves by clients should be to afford the former a proprietary-based claim against the latter. I further explain why my approach is not problematic on conceptual grounds, anti-commodification sentiments or feminist concerns with the symbolic message of my solution: that the law treats women as property.

The problem of sex trafficking, while stirring much academic interest, has not triggered almost a... more The problem of sex trafficking, while stirring much academic interest, has not triggered almost any analysis from a private law perspective. This essay begins to fill-in this gap, by paying attention to victims' claims against traffickers in unjust enrichment.

First I present an analytical framework to the litigation of private-law responses against traffickers while distinguishing between loss- and gain-based claims.

Second, I argue that gain-based claims should take the form of unjust enrichment cause of action, rather than claims in labor (or contract) law. Channeling victims' claims to labor courts is undesirable for conceptual, expressive and practical reasons. A labor response overlooks lack of consent, banalizes trafficking as a labor dispute (rather than viewing it as slavery), short-changes victims with respect to the size of the awards, and burdens them with the need to file multiple law-suits. It is lacking in terms of deterrence, and in terms of corrective, distributive and retributive justice. I explain how labor law's practical deficiency derives from its conceptual inadequacy to deal with trafficking, and that applying protective labor law to victims' claims does not solve the conceptual problem, and might worsen the practical problem. Therefore I criticize the tendency of Israeli lower courts to channel gain-based claims to labor courts and to view such claims as claims for wages. Alongside this I argue, that even within a labor framework the labor court awarded victims much less than it should have.

Third, I examine the possibility to ground the gain-based claims (enslaving the victim and selling her) in conversion. After explaining the practical limitation of such a claim, I present a counter-intuitive claim (which will be developed further in future work) that the conceptualization of the victim as property might be desirable. The relationship between the practical and symbolic effects of labor, conversion and unjust enrichment claims is discussed.

Fourth, I conceptualize the victim's unjust enrichment claim. I distinguish between the wrong involved in forcing the victim to provide sex services and that involved in taking the fruits of the enslavement. Accordingly I distinguish between two subtraction claims (duress and appropriation) and the principle of no profiting from one's serious wrongdoing. I flash out the major doctrinal ramifications from an unjust enrichment claim: that inalienability and illegality claims should not bar victim's recovery, that victims have a right to all proceeds made from their enslavement--so no deduction should be allowed to reflect traffickers' expenses--and that the burden should shift to defendants to disprove their enrichment.

Fifth, I defend the view that traffickers' liability should be joint and several with respect to both loss- and gain-based claims. At the very least, traffickers who sold the victim should be liable with the buyers to compensation and restitution.

Sixth, I argue that the victim's loss- and gain-based remedies should be cumulative and not alternative, based on both corrective justice and numerous policy considerations. Such novel claim has potential ramifications to other instances in which a breach of duty caused both loss to the plaintiff and gain to the defendant.

Seventh, I sketch required reforms with respect to awarding damages, and improving victims' access to justice and recoverability of awards.

Finally, I note on the question whether the analysis is applicable to other victims of trafficking and to non-forced sex workers.

Keywords: Human Trafficking, Sex-Trafficking, Slavery, Forced Prostitution, Unjust Enrichment, Restitution for wrongs, Conversion, Labor law, Corrective Justice, Distributive Justice, Equality, Retributive Justice, Deterrence

This book argues for the incorporation of an egalitarian sensitivity into tort law, and more g... more This book argues for the incorporation of an egalitarian sensitivity into tort law, and more generally, into private law. None of the four main arguments pitched against private law egalitarianism - illegitimacy, randomness, excessive cost and ineffectiveness - can justify a conclusion that tort law has no role in promoting equality. After illuminating the existing regressive nature of tort law and offering an applicatory framework for incorporating egalitarian sensitivity into tort doctrine, the book examines in greater detail three aspects of the tort of negligence: means sensitive standard of care, maternal prenatal duty and the use of negligence to combat discrimination. The book further highlights some required changes to the principle of full compensation in order to make damages more egalitarian.

Keywords: Torts, Distributive Justice, Equality, Negligence

An attempt to promote equality by reformulating private law doctrine often faces the objection th... more An attempt to promote equality by reformulating private law doctrine often faces the objection that such an attempt en-croaches excessively on one's predictability and liberty interests, especially given the alternative to redistribute through the tax system. In this article, the author attempts to reveal the short-comings of this critique.

Concerning the effect of private law redistribution on predictability, the author argues that insurance enables policy-makers to create redistributive rules with little lost-predictability cost. Moreover, contrary to common belief, in some instances, the more egalitarian rule would also be more predictable. With respect to liberty, the author shows that, in some cases, private law redistribution might be more effective than the tax system in improving the lot of the disadvantaged. This outcome is espe-cially likely when the normativity of law is taken into account, as well as the understanding that advancing equality involves more than progressive redistribution of wealth in society. In such cases, even if private law redistribution costs more in terms of liberty, it might be justified for its better promotion of equal-ity. Furthermore, the critique regarding excessive encroachment on liberty concentrates exclusively on the liberty interests of the well-to-do and neglects the liberty interests of the disadvan-taged. When the latter are taken into account, it is less clear that private law redistribution actually costs more in terms of liberty.

Private law redistribution might be justified on two addi-tional grounds. First, its symbolic message might be more em-powering to the disadvantaged. Private law redistribution can be seen as rectifying the existing regressive distributive effects of private law as opposed to being an act of charity. Second, even if tax redistribution enjoys theoretical superiority to private law redistribution, the latter might need to be pursued if the former is not likely to take place.

Keywords: Tort Law, Equality, Distributive Justice, Liberty

Social & Legal Studies, 2005

In this article I seek to apply a general claim about tort law -that it should promote as one of ... more In this article I seek to apply a general claim about tort law -that it should promote as one of its goals a better attainment of distributive justice -to the context of maternal prenatal duty. My argument is that, contrary to common belief among lawyers, the negative burden that a maternal prenatal duty of care would place on potential defendants' autonomy, although significant, is not a convincing reason in itself to oppose such a duty. Crucial to this argument is the fact that it is the autonomy of women that is limited. Moreover, and somewhat counter-intuitively, I argue that a genuine distributive-egalitarian concern can in fact support the imposition of liability, within the limits of actual insurance coverage, when certain conditions are met, at least according to one understanding of this concern.

Theoretical Inquiries in Law, 2003

conclusion that the normative evaluation of one's action as negligent or not cannot be separated ... more conclusion that the normative evaluation of one's action as negligent or not cannot be separated from the distributive results that this action entails. The egalitarian concern works at the duty stage as an excuse for not imposing liability for wrongful activity. In contrast, at the standard stage, it works as a justification that turns an otherwise wrongful activity into a legitimate one. My claim is that morally we should usually expect more care from the better-off than from the disadvantaged. Findings of negligence are based on the failure to balance properly between one's interests and those of another. In deciding to what extent the defendant should burden herself in order to prevent a loss to potential victims, one morally relevant criterion is the relative ability of the injurer and victim to bear precaution costs and expected accident loss, respectively.

This Article responds to one challenge to the aspiration to incorporate distributive-egalitarian ... more This Article responds to one challenge to the aspiration to incorporate distributive-egalitarian sensitivity into tort law. Arguably, any attempt to effect redistribution by means of tort law is bound to be random and, hence, unjust. There are two facets to the randomness charge: partiality of the participants and crudeness of the distributive result. I argue that the randomness charge, in both its aspects, does not provide a convincing reason to oppose infusing tort law with distributive-egalitarian sensitivity. The charge of randomness is based on two factual assumptions and one normative claim: namely, that existing tort law has no significant redistributive effect; that redistribution through tort law is especially susceptible to the charge of randomness; and that random progressive redistribution is less fair than the status quo distribution. In this Article, I challenge all three claims. I first argue that existing tort law has inevitable distributive consequences and that these consequences are predominantly regressive. I then raise four challenges to the assumption that distribution through tort law is partial, arguing that either such distribution is not partial at all or that it is no more partial than the distribution produced by alternative mechanisms: localized distributive justice; participation through insurance; the complement thesis; and no comparative randomness. Next, I develop a methodology for comparing the fairness of the post-tort litigation redistribution with that of the status quo distribution. This methodology is based on the respective proximity of these distributions to the reference point of society's ideal distributive scheme. Applying this methodology, I argue that partial progressive redistribution is fairer than the status quo distribution. Regarding the problem of partiality of participants, I maintain that any injustice that arises from treating differently members of the same group is overridden by the more egalitarian distribution achieved between the different groups, namely, that the inter-group justice outweighs the intra-group injustice. With respect to the problem of the crudeness of the distributive result, I posit that adopting a guideline for redistribution that is pro-disadvantaged rather than anti-well-to-do ensures the superiority of the partial progressive redistribution relative to the status quo. Furthermore, even under a more radical anti-well-to-do benchmark for redistribution, that superiority might still be maintained. Finally, I apply my three claims to the context of gender inequality and lost earnings. I argue that the theoretical framework developed in this Article provides support for gender-neutral damages awards for lost earnings.

In this chapter, I evaluate an increasing tendency of courts across different jurisdictions to re... more In this chapter, I evaluate an increasing tendency of courts across different jurisdictions to remedy (albeit inconsistently) injury to autonomy (‘ITA’) mainly in the tort of negligence, but also through consumer protection and contract law, thus recognising a protected interest in autonomy as a new type of substantive private interest. I will focus on scenarios similar to Bhamra v Dubb, in which the consumer, contrary to reasonable expectation consumes food which they prefer to avoid due to ethical or religious preferences. By this, the chapter aims to contribute both to the general question whether ITA should be compensated in different contexts (medical, consumer, personal status and so on) and in the more specific context of ‘avoided’ food.

My goals are both conceptual and normative. Part II distinguishes between three types of ITA. This distinction often eludes courts with the result of much confusion and inconsistency. I will focus mainly on type 2: cases in which the claimant is brought to an inferior state of affairs without his consent and where the ITA is not consequent on violation of an already protected interest. Part III explores three constitutive elements of ITA – meaningful choice; reliance (as opposed to expectation) interest; and irreversibility. Part IV provides a normative defence to providing a remedy for type 2 ITA (which is at the heart of this chapter) in appropriate circumstances.

The standard liberal account of autonomy, at least as applied to tort law, focuses on the ability to make choices simpliciter. The focus of this chapter is on a thicker notion of autonomy – protecting choices that are informed by one’s personal beliefs, ethics, values, attitudes and world view, or have a significant bearing on the way the claimant leads their life. According to such a view, not all acts that affect choice are equal – choices closely connected with the attempt to live by one’s values are more fundamental than those that are not, and as such deserve protection. Accordingly, interactions bringing the claimant to an inferior state of affairs since they undermine the claimant’s worldview or have a significant bearing on the way they lead their life deserve compensation in either negligence or contract, even if the harm is entirely non-pecuniary and non-corporeal.