Bruce Chapman | University of Toronto (original) (raw)

Videos by Bruce Chapman

The values that we confront in legal decision-making often appear incommensurable. Some legal the... more The values that we confront in legal decision-making often appear incommensurable. Some legal theorists resist the possibility of incommensurability because it is feared that it presents an overwhelming obstacle to rational decision-making. However, in offering a close analysis of what is meant by proportional value satisfaction, I show that this fear is unfounded. Comparative measures of proportional value satisfaction do not require the values to be commensurable. I also show that the public significance of proportional value satisfaction, best achieved by equal proportional value satisfaction, is most appropriately implemented by a process attending to defeasible legal rules. Unlike a single-staged rule, a multi-staged defeasible rule, where claims are made seriatim by different parties with a personal authority that exists apart from the overall truth of the rule which supports the claim, provides the needed bi-lateral structure that respects the equal standing of the parties.

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Papers by Bruce Chapman

University of Pennsylvania Law Review, 2003

How to cite TSpace items Always cite the published version, so the author(s) will receive recogni... more How to cite TSpace items Always cite the published version, so the author(s) will receive recognition through services that track citation counts, e.g. Scopus. If you need to cite the page number of the author manuscript from TSpace because you cannot access the published version, then cite the TSpace version in addition to the published version using the permanent URI (handle) found on the record page. This article was made openly accessible by U of T Faculty. Please tell us how this access benefits you. Your story matters.

Philosophy and the law of torts / edited by Gerald J. Postema. p. cm.-(Cambridge studies in philo... more Philosophy and the law of torts / edited by Gerald J. Postema. p. cm.-(Cambridge studies in philosophy and law) Includes bibliographical references and index. 1. Torts-Philosophy. 1. Postema, Gerald J. II. Series. K923 P49 20001 346.03'0I-dc21 00-065174 This book is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.

In a recent speech entitled "What's Right About Corporate Governance?" the Chairman of the Ontari... more In a recent speech entitled "What's Right About Corporate Governance?" the Chairman of the Ontario Securities Commission, Edward Waitzer, paraphrasing an old aphorism, once advised that "people who live in glass houses should always answer the doorbell".1 It seems clear that Waitzer was offering some free advice to the leaders of our corporations: they should be more responsive to the public demancJ for increased social responsibility by corporations. Specifically, Waitzer's point was that corporate leader,S need to think more proactively and less defensively abo1.Jt criticisms directed at the~orporate sector. If they do not, then government wij.l rush into the vacuum and respond to the social demands that something be done about apparent corporate misbehaviour. However, these politically motivated responses, while possibly satisfying all the high profile requirements which. are so much cherished by elected politicians or publicly appointed officials, could well be totally misguided from a more purely economic point of view. In some respects I worry that Ronald Daniels' article, recently published in this Joumal,2 is insufficiently responsive to the call at the door in just the way that Waitzer suggests. However, before developing this point, it must be conceded at the outset that the article is an effective reply to any claim that a statutorily increased lev'el of personal directors' liability is an obvious solution to those difficulties which are generated by limited shareholder liability. In ..

The puzzle of defeasible rules At first glance it is hard to know what is meant when someone says... more The puzzle of defeasible rules At first glance it is hard to know what is meant when someone says: 'Well, that's the exception that proves the rule!' An exception hardly seems supportive of its rule; if anything, the exception seems to quallijr the rule and to take it down a peg. Far from proving the rule, an exception appears to render it less of a rule. Certainly it gives the rule less scope. It may even leave us thinking that the rule could be vulnerable to more * Professor of Law, Universiry ofToromo. 1 A more complete version of the saying, somecimes trotted om to make better sense of ir, is: 'the e.'<cepcion proves the rule so far as matters not excepted' (or in Latin, 'exceptio probat regulam de rebus non exceptis'; see Black's Law Dictionary). But chis version fares only slightly better than the original. 'Matters not excepted' are at best untouched by the exceprions; they are hardly proved by them. Worse, the possibility of further exceptions, even co mau:ers so far nor excepted, is suggested. So the puzzle of proof by way of e.'fception.s remains. 2 For disrussion of essenrially sequenced concepts, see B.

University of Toronto Law Journal , 2007

Law Phil, 1983

Some areas of the law, such as criminal law, have been the subject of much philosophical reflecti... more Some areas of the law, such as criminal law, have been the subject of much philosophical reflection and discussion, while others, such as labour law, have scarcely been considered. The law of tort falls somewhere in between. Yet, in a recent survey of the relevant literature one author has remarked that "[d]issatisfaction with existing tort law is a universal phenomenon. ''1 The same author refers to "the crisis in tort law" and points to the example of New Zealand as one instance where this dissatisfaction has led to the complete supplanting of the tort system by a system of social insurance. Before other jurisdictions follow New Zealand's example, however, it is important to have a firm understanding of exactly what values are promoted or protected by the traditional law of tort. Consequently, the 1981 project on Values in Tort Law, sponsored and directed by the Westminster Institute for Ethics and Human Values, subjected some of these values to careful philosophical scrutiny. The project involved two meetings of lawyers and philosophers to discuss drafts of papers and the general issues in tort law. The symposium papers in this and the next issue of Law and Philosphy result from that project. In this issue, in the first of a two-part article, Jules Coleman surveys some of the current tort literature. Receiving particular attention are arguments from retribution, responsibility, and reciprocity of risk, the latter two being closely associated with the important work of Professors Epstein and Fletcher respectively. Part II of Professor Coleman's article, which looks to theories of

Law Phil, 1982

Some areas of the law, such as criminal law, have been the subject of much philosophical reflecti... more Some areas of the law, such as criminal law, have been the subject of much philosophical reflection and discussion, while others, such as labour law, have scarcely been considered. The law of tort falls somewhere in between. Yet, in a recent survey of the relevant literature one author has remarked that "[d]issatisfaction with existing tort law is a universal phenomenon. ''1 The same author refers to "the crisis in tort law" and points to the example of New Zealand as one instance where this dissatisfaction has led to the complete supplanting of the tort system by a system of social insurance. Before other jurisdictions follow New Zealand's example, however, it is important to have a firm understanding of exactly what values are promoted or protected by the traditional law of tort. Consequently, the 1981 project on Values in Tort Law, sponsored and directed by the Westminster Institute for Ethics and Human Values, subjected some of these values to careful philosophical scrutiny. The project involved two meetings of lawyers and philosophers to discuss drafts of papers and the general issues in tort law. The symposium papers in this and the next issue of Law and Philosphy result from that project. In this issue, in the first of a two-part article, Jules Coleman surveys some of the current tort literature. Receiving particular attention are arguments from retribution, responsibility, and reciprocity of risk, the latter two being closely associated with the important work of Professors Epstein and Fletcher respectively. Part II of Professor Coleman's article, which looks to theories of

ABSTRACT De sociale of maatschappelij- ke waarde van ouderdoms- pensioen wijkt af van de waarde d... more ABSTRACT De sociale of maatschappelij- ke waarde van ouderdoms- pensioen wijkt af van de waarde die daar door een in- dividu met zijn individuele levensverwachting aan ge- hecht kan worden. In dit op- zicht zijn pensioenen te ver- gelijken met levensreddende technologieën en wijkt een ouderdomspensioenverzeke- ring af van andere verzeke- ringen. Het artikel van Chapman is gestoeld op de Amerikaanse praktijk, jurisprudentie en regelgeving. Bij lezing dient men er op bedacht te zijn dat de Nederlandse context op onderdelen fundamenteel af- wijkt van de Amerikaanse. Inleiding van de redactie

University of Toronto Law Journal, Mar 24, 2015

ABSTRACT This article is the text of an introductory address presented at the Faculty of Law on 2... more ABSTRACT This article is the text of an introductory address presented at the Faculty of Law on 23 October 2009 in celebration of Professor Ernest Weinrib&#39;s receiving the 2009 Killam Prize, Canada&#39;s most distinguished annual award for outstanding scholarly achievement. It offers a very personal interpretation of the contributions that Weinrib has made to private-law scholarship over the last thirty years and is organized around three closely related questions that he has addressed in his work: What is a theory? What is a theory of law? and What is a theory of private law? His answers to these different questions land Weinrib in three different worlds — the world of the university, the world of the law school, and the world of legal practice — but it is Weinrib&#39;s special contribution as a legal philosopher to have brought all three much closer together.

ABSTRACT In the 1993-94 Term the Supreme Court of Canada decided nine torts cases. Some of the is... more ABSTRACT In the 1993-94 Term the Supreme Court of Canada decided nine torts cases. Some of the issues treated in these decisions raise fundamental questions for the proper understanding of tort law. Three of these, Cunningham v. Wheeler, Cooper v. Miller, and Shanks v. McNee, all concerned the vexing question of when to deduct collateral benefits from damages, and were dealt with under one set of judgments. Two others, Brown v. British Columbia (Minister ofTransportation and Highways) and Swinamer v.Nova Scotia (Attorney General), both of which concerned negligence actions against public authorities, while treated separately in different judgments, involved much overlap in the judicial opinions offered. This review of the 1993-94 Term will deal with these five cases in some detail in Parts II and III. This leaves four cases, each of which received independent treatment from the Court. Two of these Gibney v. Gilliland and Granville Savings and Mortgage Co. v. Slevin are hardly worth a mention. However, the remaining two tort cases the Court chose to during hear this Term are more interesting. The first of these, Galaske v. O&#39;Donnell, which dealt with a driver&#39;s duties to ensure that child passengers wear seat-belts, is discussed briefly in Part IV. The other case, Toneguzzo-Norvell v. Burnaby Hospital, which dealt with measures of damages, including measures of lost earnings that might reflect systemic future discrimination against female infant plaintiffs, is discussed at more length in Part V.

Corporate Liability Strategies and the Costs of Legal Controls,93,yALE LJ. 857, 859 (1984) (discu... more Corporate Liability Strategies and the Costs of Legal Controls,93,yALE LJ. 857, 859 (1984) (discussing the de facto practice of unitary enterprise liability despite the theoretical availability of dual liability against both the enterprise and the individual employee). 3.. Jennifer Arlen, The Potentially Perverse Effecis of Corporate Criminal Liability, 23 J. LEGAL STUD. 833 (1994). While Arlen's analysis focuses explicitly on vicarious corporate criminalliability, she claims that her arguments may be equally relevant to vicarious civil liability. Id. at 837. In the latter context, unlike the former, reduced vicarious corporate liability does imply increased personal liability against the employee, at least if the plaintiff is to continue to be able to recover fully for losses. 4. See, e.g., CAL LAB. CoDE § 2800 (Deering 1991).

Our intuitions can conflict when choosing between saving one person from a loss and a larger numb... more Our intuitions can conflict when choosing between saving one person from a loss and a larger number of persons from each suffering that same loss, or some smaller loss. When the loss is the same we think that a larger number of persons suffering the loss makes the situation worse and should be decisive for saving them. But when their individual losses are smaller, or different, their greater number sometimes seems not to count at all in what we should choose. I analyze whether this intermediate position, where the numbers only sometimes count, is coherent. Using Frances Kamm’s interpretation of John Taurek’s argument (that the numbers never count), I show that we can deny Taurek’s No Worse Claim (so that the numbers sometimes count) and yet accept his Individual Loss Claim (so that the numbers do not always count), but only if we give up comparing losses across persons under cardinal unit commensurability. Instead we should use interpersonally non-comparable ratio scale measures, so...

Philosophy and the Law of Torts, 2001

The University of Toronto Law Journal, 1979

The values that we confront in legal decision-making often appear incommensurable. Some legal the... more The values that we confront in legal decision-making often appear incommensurable. Some legal theorists resist the possibility of incommensurability because it is feared that it presents an overwhelming obstacle to rational decision-making. However, in offering a close analysis of what is meant by proportional value satisfaction, I show that this fear is unfounded. Comparative measures of proportional value satisfaction do not require the values to be commensurable. I also show that the public significance of proportional value satisfaction, best achieved by equal proportional value satisfaction, is most appropriately implemented by a process attending to defeasible legal rules. Unlike a single-staged rule, a multi-staged defeasible rule, where claims are made seriatim by different parties with a personal authority that exists apart from the overall truth of the rule which supports the claim, provides the needed bi-lateral structure that respects the equal standing of the parties.

19 views

University of Pennsylvania Law Review, 2003

How to cite TSpace items Always cite the published version, so the author(s) will receive recogni... more How to cite TSpace items Always cite the published version, so the author(s) will receive recognition through services that track citation counts, e.g. Scopus. If you need to cite the page number of the author manuscript from TSpace because you cannot access the published version, then cite the TSpace version in addition to the published version using the permanent URI (handle) found on the record page. This article was made openly accessible by U of T Faculty. Please tell us how this access benefits you. Your story matters.

Philosophy and the law of torts / edited by Gerald J. Postema. p. cm.-(Cambridge studies in philo... more Philosophy and the law of torts / edited by Gerald J. Postema. p. cm.-(Cambridge studies in philosophy and law) Includes bibliographical references and index. 1. Torts-Philosophy. 1. Postema, Gerald J. II. Series. K923 P49 20001 346.03'0I-dc21 00-065174 This book is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.

In a recent speech entitled "What's Right About Corporate Governance?" the Chairman of the Ontari... more In a recent speech entitled "What's Right About Corporate Governance?" the Chairman of the Ontario Securities Commission, Edward Waitzer, paraphrasing an old aphorism, once advised that "people who live in glass houses should always answer the doorbell".1 It seems clear that Waitzer was offering some free advice to the leaders of our corporations: they should be more responsive to the public demancJ for increased social responsibility by corporations. Specifically, Waitzer's point was that corporate leader,S need to think more proactively and less defensively abo1.Jt criticisms directed at the~orporate sector. If they do not, then government wij.l rush into the vacuum and respond to the social demands that something be done about apparent corporate misbehaviour. However, these politically motivated responses, while possibly satisfying all the high profile requirements which. are so much cherished by elected politicians or publicly appointed officials, could well be totally misguided from a more purely economic point of view. In some respects I worry that Ronald Daniels' article, recently published in this Joumal,2 is insufficiently responsive to the call at the door in just the way that Waitzer suggests. However, before developing this point, it must be conceded at the outset that the article is an effective reply to any claim that a statutorily increased lev'el of personal directors' liability is an obvious solution to those difficulties which are generated by limited shareholder liability. In ..

The puzzle of defeasible rules At first glance it is hard to know what is meant when someone says... more The puzzle of defeasible rules At first glance it is hard to know what is meant when someone says: 'Well, that's the exception that proves the rule!' An exception hardly seems supportive of its rule; if anything, the exception seems to quallijr the rule and to take it down a peg. Far from proving the rule, an exception appears to render it less of a rule. Certainly it gives the rule less scope. It may even leave us thinking that the rule could be vulnerable to more * Professor of Law, Universiry ofToromo. 1 A more complete version of the saying, somecimes trotted om to make better sense of ir, is: 'the e.'<cepcion proves the rule so far as matters not excepted' (or in Latin, 'exceptio probat regulam de rebus non exceptis'; see Black's Law Dictionary). But chis version fares only slightly better than the original. 'Matters not excepted' are at best untouched by the exceprions; they are hardly proved by them. Worse, the possibility of further exceptions, even co mau:ers so far nor excepted, is suggested. So the puzzle of proof by way of e.'fception.s remains. 2 For disrussion of essenrially sequenced concepts, see B.

University of Toronto Law Journal , 2007

Law Phil, 1983

Some areas of the law, such as criminal law, have been the subject of much philosophical reflecti... more Some areas of the law, such as criminal law, have been the subject of much philosophical reflection and discussion, while others, such as labour law, have scarcely been considered. The law of tort falls somewhere in between. Yet, in a recent survey of the relevant literature one author has remarked that "[d]issatisfaction with existing tort law is a universal phenomenon. ''1 The same author refers to "the crisis in tort law" and points to the example of New Zealand as one instance where this dissatisfaction has led to the complete supplanting of the tort system by a system of social insurance. Before other jurisdictions follow New Zealand's example, however, it is important to have a firm understanding of exactly what values are promoted or protected by the traditional law of tort. Consequently, the 1981 project on Values in Tort Law, sponsored and directed by the Westminster Institute for Ethics and Human Values, subjected some of these values to careful philosophical scrutiny. The project involved two meetings of lawyers and philosophers to discuss drafts of papers and the general issues in tort law. The symposium papers in this and the next issue of Law and Philosphy result from that project. In this issue, in the first of a two-part article, Jules Coleman surveys some of the current tort literature. Receiving particular attention are arguments from retribution, responsibility, and reciprocity of risk, the latter two being closely associated with the important work of Professors Epstein and Fletcher respectively. Part II of Professor Coleman's article, which looks to theories of

Law Phil, 1982

Some areas of the law, such as criminal law, have been the subject of much philosophical reflecti... more Some areas of the law, such as criminal law, have been the subject of much philosophical reflection and discussion, while others, such as labour law, have scarcely been considered. The law of tort falls somewhere in between. Yet, in a recent survey of the relevant literature one author has remarked that "[d]issatisfaction with existing tort law is a universal phenomenon. ''1 The same author refers to "the crisis in tort law" and points to the example of New Zealand as one instance where this dissatisfaction has led to the complete supplanting of the tort system by a system of social insurance. Before other jurisdictions follow New Zealand's example, however, it is important to have a firm understanding of exactly what values are promoted or protected by the traditional law of tort. Consequently, the 1981 project on Values in Tort Law, sponsored and directed by the Westminster Institute for Ethics and Human Values, subjected some of these values to careful philosophical scrutiny. The project involved two meetings of lawyers and philosophers to discuss drafts of papers and the general issues in tort law. The symposium papers in this and the next issue of Law and Philosphy result from that project. In this issue, in the first of a two-part article, Jules Coleman surveys some of the current tort literature. Receiving particular attention are arguments from retribution, responsibility, and reciprocity of risk, the latter two being closely associated with the important work of Professors Epstein and Fletcher respectively. Part II of Professor Coleman's article, which looks to theories of

ABSTRACT De sociale of maatschappelij- ke waarde van ouderdoms- pensioen wijkt af van de waarde d... more ABSTRACT De sociale of maatschappelij- ke waarde van ouderdoms- pensioen wijkt af van de waarde die daar door een in- dividu met zijn individuele levensverwachting aan ge- hecht kan worden. In dit op- zicht zijn pensioenen te ver- gelijken met levensreddende technologieën en wijkt een ouderdomspensioenverzeke- ring af van andere verzeke- ringen. Het artikel van Chapman is gestoeld op de Amerikaanse praktijk, jurisprudentie en regelgeving. Bij lezing dient men er op bedacht te zijn dat de Nederlandse context op onderdelen fundamenteel af- wijkt van de Amerikaanse. Inleiding van de redactie

University of Toronto Law Journal, Mar 24, 2015

ABSTRACT This article is the text of an introductory address presented at the Faculty of Law on 2... more ABSTRACT This article is the text of an introductory address presented at the Faculty of Law on 23 October 2009 in celebration of Professor Ernest Weinrib&#39;s receiving the 2009 Killam Prize, Canada&#39;s most distinguished annual award for outstanding scholarly achievement. It offers a very personal interpretation of the contributions that Weinrib has made to private-law scholarship over the last thirty years and is organized around three closely related questions that he has addressed in his work: What is a theory? What is a theory of law? and What is a theory of private law? His answers to these different questions land Weinrib in three different worlds — the world of the university, the world of the law school, and the world of legal practice — but it is Weinrib&#39;s special contribution as a legal philosopher to have brought all three much closer together.

ABSTRACT In the 1993-94 Term the Supreme Court of Canada decided nine torts cases. Some of the is... more ABSTRACT In the 1993-94 Term the Supreme Court of Canada decided nine torts cases. Some of the issues treated in these decisions raise fundamental questions for the proper understanding of tort law. Three of these, Cunningham v. Wheeler, Cooper v. Miller, and Shanks v. McNee, all concerned the vexing question of when to deduct collateral benefits from damages, and were dealt with under one set of judgments. Two others, Brown v. British Columbia (Minister ofTransportation and Highways) and Swinamer v.Nova Scotia (Attorney General), both of which concerned negligence actions against public authorities, while treated separately in different judgments, involved much overlap in the judicial opinions offered. This review of the 1993-94 Term will deal with these five cases in some detail in Parts II and III. This leaves four cases, each of which received independent treatment from the Court. Two of these Gibney v. Gilliland and Granville Savings and Mortgage Co. v. Slevin are hardly worth a mention. However, the remaining two tort cases the Court chose to during hear this Term are more interesting. The first of these, Galaske v. O&#39;Donnell, which dealt with a driver&#39;s duties to ensure that child passengers wear seat-belts, is discussed briefly in Part IV. The other case, Toneguzzo-Norvell v. Burnaby Hospital, which dealt with measures of damages, including measures of lost earnings that might reflect systemic future discrimination against female infant plaintiffs, is discussed at more length in Part V.

Corporate Liability Strategies and the Costs of Legal Controls,93,yALE LJ. 857, 859 (1984) (discu... more Corporate Liability Strategies and the Costs of Legal Controls,93,yALE LJ. 857, 859 (1984) (discussing the de facto practice of unitary enterprise liability despite the theoretical availability of dual liability against both the enterprise and the individual employee). 3.. Jennifer Arlen, The Potentially Perverse Effecis of Corporate Criminal Liability, 23 J. LEGAL STUD. 833 (1994). While Arlen's analysis focuses explicitly on vicarious corporate criminalliability, she claims that her arguments may be equally relevant to vicarious civil liability. Id. at 837. In the latter context, unlike the former, reduced vicarious corporate liability does imply increased personal liability against the employee, at least if the plaintiff is to continue to be able to recover fully for losses. 4. See, e.g., CAL LAB. CoDE § 2800 (Deering 1991).

Our intuitions can conflict when choosing between saving one person from a loss and a larger numb... more Our intuitions can conflict when choosing between saving one person from a loss and a larger number of persons from each suffering that same loss, or some smaller loss. When the loss is the same we think that a larger number of persons suffering the loss makes the situation worse and should be decisive for saving them. But when their individual losses are smaller, or different, their greater number sometimes seems not to count at all in what we should choose. I analyze whether this intermediate position, where the numbers only sometimes count, is coherent. Using Frances Kamm’s interpretation of John Taurek’s argument (that the numbers never count), I show that we can deny Taurek’s No Worse Claim (so that the numbers sometimes count) and yet accept his Individual Loss Claim (so that the numbers do not always count), but only if we give up comparing losses across persons under cardinal unit commensurability. Instead we should use interpersonally non-comparable ratio scale measures, so...

Philosophy and the Law of Torts, 2001

The University of Toronto Law Journal, 1979

This chapter offers a slightly different account of what corrective justice requires for the paym... more This chapter offers a slightly different account of what corrective justice requires for the payment of monetary damages. Specifically, it argues that while corrective justice does require full compensation for the costs of future care, at least in so far as these involve pecuniary losses, and does require full compensation for the loss of future earnings, it does not require full compensation for non-pecuniary losses. This is true despite the fact that such losses have been caused by the defendant’s wrongdoing, and lie within its ambit. The reason for this is that corrective justice corrects for wrongdoing within the space of rights, not welfare. While welfare under the aspect of rights is ultimately attended to by a damages award under corrective justice, the fact that monetary damages can have no utility for the correction of non-pecuniary welfare losses under this aspect is decisive against the award of such damages.