Nuisance Law versus Tort Law When Transaction Costs are High. A Law and Economics Perspective of the Italian Legal System (original) (raw)
Guido Calabresi on Torts: Italian Courts and the Cheapest Cost Avoider
2009
Guido Calabresi proposed to replace the dominating paradigm of fault with simpler strict liability rules that put liability on the most appropriate actors (the cheapest cost avoiders). Assuming that the objective function of the tort system is the mimimization of the sum of the injury and injury avoidance costs associated with accidents (primary costs), risk-spreading costs (secondary costs), and administrative costs (tertiary costs), he suggested that the adoption of strict liability, targeted to specified activities, would achieve the goal of cost minimization. The core of an extremely richer message was that the cheapest cost avoider test would abate the administrative costs of courts. Moreover, the manufacturers' ability to spread the costs of strict liability through the prices charged for their products would effectively insure product users against the risks of injury. This masterpiece of normative analysis has deployed an ever increasing influence on thinking about tort law, not only in the US but also in Europe. This paper aims to trace the impact of Calabresi's ideas on Italian case-law.
The “Demand for Justice” in Italy: Civil Litigation and the Judicial System
Italian Institutional Reforms: A Public Choice Perspective, 2008
This study provides an interpretative scheme of the so-called "demand for justice" in Italy. Using a microeconomic model of the choice of litigants, the characteristics of the judicial, legal, and economic systems have been modeled as they influence the decisions of the two parties and may cause opportunistic behavior, which, in their turn, may have an impact on the shape of the two systems. An empirically testable model has been derived from this theoretical framework. The empirical analysis shows that lengthy time-spans and raised costs of associated processes and high market rates have a disincentive effect on recourse to justice, which seems to prevail over that connected to opportunistic behavior of the plaintiff. We do not find evidence for the socalled pathological demand hypothesis, which has been emphasized in recent literature.
The Italian Law Journal, 2019
The development of Italian civil liability rules since the 1865 Civil Code to the present day is clearly marked by the influence of foreign models. This article tries to detect these foreign influences, starting from those of the French Code Napoléon on the 1865 Civil Code, moving on to those of Pandectist legal thinking on the 1942 Civil Code, and ending with the influences of the common law experiences and European legislation on some sectors of Italian tort law. The final results of this research is a much more complicated and nuanced picture than what is expected, as the Italian system has not only been a passive receptacle of ideas developed in other countries, but has also been able, throughout its history, to mould those foreign ideas with original concepts, so creating an original system, largely independent from its sources of inspiration.
Calabresi and Behavioural Tort Law and Economics
Written in honour of Guido Calabresi, this essay discusses critically several of the basic assumptions of the neo-classic model of tort law: one being that rational individuals will respond to applicable tort rules, striving to maximise their utility and to satisfy their own self-interest. Insights from behavioural law and economics are used to show that decision-making often takes place in a way that is different from that assumed by traditional economic models. The paper discusses the consequences of the behavioural literature for the economic analysis of law. It also demonstrates that Calabresi's approach to tort law is more differentiated and flexible than some of the more formal models. This approach has the advantage that it allows one to take into account all kinds of cognitive limitations, errors, and information problems, as did Calabresi himself in many of his publications on this issue in the 1960s and 1970s. The paper illustrates how Guido Calabresi was already aware of cognitive limits: for instance, concerning the ability of parties to assess how much they should spend 'for their own good'. This led him to arrive at balanced conclusions with regard to normative consequences of these limits. Many of the ideas of behavioural law and economics were hence already implicit in Calabresi's writings.
The Costs of The Costs of Accidents
2008
Guido Calabresi's The Costs of Accidents' is unquestionably the most important book written in tort theory during the past fifty years. Much of what has been written since the book's publication either extends Calabresi's insights or reacts critically to them; some essays do a bit of both. Its lessons are by now so absorbed as to constitute part of the common understanding of the subject. The Costs of Accidents not only provides the intellectual framework within which the current debate occurs, but the language in which it is expressed as well. In time, the expression "cheapest cost avoider" will no doubt find its way into the Italian translation of the Oxford English Dictionary and may even appear someday as an entry in the Authorized Version. The Costs of Accidents has redefined both tort law and tort theory-often, but not always, for the betterment of each. The primary aim of law is to regulate conduct through normsusually rules-that create reasons, grounds, or warrants for action. Many of these reasons take the form of rights, privileges, and liberties on the one hand, and duties and other encumbrances on the other. Arguably, both the laws of tort and crime impose duties or prohibitions on agents, whereas the law of contract confers powers on individuals to create legally enforceable rights and duties. To be sure, we can imagine certain acts currently proscribed by statute no longer being criminalized, and others not currently prohibited by law coming to be proscribed. Still, it is difficult to imagine a legal regime that does not include a criminal law, that is, a body of law designed to prohibit certain conduct and to hold those who fail to comply with its demands liable to punishment-state imposed hard treatment consisting primarily of the loss of liberty and assorted legal rights. In contrast to the criminal law that imposes duties, contract law confers powers. In particular, it empowers individuals to create a le
A. Lasso - The Civil Wrong Between Private Relationships and Social Order
A new approach to the functions of liability allows the observation of civil wrong from two different perspectives: the relationship between the wrongdoer and the injured party and the system of values in its natural aspiration to stability. The unjust harm caused by the wrongdoer may entail the reinstatement of the victim's property and the concomitant protection of important social interests. The Roman tradition, the law-making process of the Middle ages, the experiences of some European countries and the recent case law evolution show the continuous swinging of civil liability between the compensatory function for the damage caused and the punitive sanction for the wrongful conduct. I. The Need for Effective and Full Protection of the Human Person The civil liability system is influenced – more than any other sector of private law – by the deep economic transformation and the ceaseless social and cultural changes of our times. The technological revolution, the organization of a complex IT system, and the use of sophisticated means of wealth production have caused greater fragility of human persons, exposing their psychological and physical well-being to previously unthinkable aggressions and exponentially increasing the need for their effective and full protection. 1 The passage from a simple social structure, based on the movement of goods that are essential for survival, to a complex organization built on relentless market development, has already led to a new understanding of the concept of damages. A different approach to the problem of infringement of absolute and immediate legal situations 2 and, in particular, of rights having the individual as Associate Professor of Private Law, University of Calabria. 1 The insights of outstanding legal theory highlight some dramatic aspects of the historical period we are witnessing, especially with respect to the negative consequences of efficiency-driven human conduct: P. Perlingieri, 'Mercato, solidarietà e diritti umani', in Id, Il diritto dei contratti fra persona e mercato. Problemi del diritto civile (Napoli: Edizioni Scientifiche Italiane, 2003), 251, states that over the last decades efforts have been focused more on raising the average level of wealth than on organizing an institutional structure of just society that may be able to forestall the proliferation of harmful events. 2 The expression civil liability indicates the instrument through which a system responds to the infringement of an interest to be preserved, by imposing an obligation for the wrongdoer to compensate for the damages caused to third parties. Traditionally, the infringement of a