Based on the findings of several research studies of professionals in both the property-liability insurance industry and the life insurance industry, the paper makes and supports several important points. First, ethical challenges in the insurance industry involve not only a series of ethical dilemmas frequently faced by those working in the business, but also a variety of factors that hinder those working in the industry as they seek to resolve the ethical dilemmas encountered in the (...) course of their work. Both of these two components of ethical challenges must be understood by those in the financial services industry who will deal with insurance operations in the future. Second, whereas the life insurance business and the property-liability insurance business have traditionally been viewed as being quite different from one another and still are in terms of operations and regulation, the research findings show that they are no longer very different in terms of the key ethical challenges faced by those working in the two segments of the industry. The paper shows how during the past decade the ethical challenges in the property-liability insurance industry have become quite similar to those in the more troubled life insurance industry. (shrink)

Relevance of the article is determined that the effective functioning of the reinsurance market greatly depends on the development of its infrastructure because it creates opportunities for implementation of reinsurance services, mediates, accelerates and facilitates placement and execution of reinsurance contracts. Given the state of the domestic insurance market mediation necessary means to enhance its development and integration into the global reinsurance market. The article is a study of measures to enhance the role of mediation in the insurance (...) market of Ukraine. The article provided a critical assessment of the legal status of insurance mediation in Ukraine. Factors that determine its role in the insurance market of Ukraine. Established quantitative and cost indicators of intermediation of brokers in insurance and reinsurance, given their logical explanation. Suggestions to create appropriate conditions for the development of mediation in the insurance and reinsurance markets in Ukraine. Mediation plays an important role in the development of the insurance market of Ukraine since: helping the participants to choose the most optimal proposal for the establishment of additional guarantees of the insurance liabilities; strengthening partnerships and trust between the reinsurer and the reinsurer; improves the quality and dynamics of sales reinsurance services; supports a healthy competitive environment in the reinsurance market. It was established that the quantitative and cost indicators of intermediation of brokers in insurance and / or reinsurance in Ukraine do not match. By number of deals leadership position with insurers-residents, the cost - non-resident reinsurers. The most attractive segment for mediation turned provision of agreements with non-resident reinsurers for property insurance. To create the appropriate conditions for the development of mediation in the insurance and reinsurance markets of Ukraine should: increase transparency of brokers to introduce their professional liability insurance and the formation of guarantee funds. (shrink)

Beginning with the seminal work by Williams and Nagel, moral philosophers have used auto accident hypotheticals to illustrate the phenomenon of moral luck. Moral luck is present in the hypotheticals because two equally careless drivers are assessed differently because only one of them caused an accident. This Article considers whether these philosophical discussions might contribute to the public policy debate over compensation for auto accidents. Using liability and insurance practices in the United States as an illustrative example, the (...) Article explains that auto liability insurance substantially mitigates moral luck and argues that, as a result, the moral luck literature is unlikely to make a significant contribution to this public policy debate. The debate would benefit more from philosophical analysis of victims’ luck, which is not as substantially mitigated by liability insurance. (shrink)

The design of collaborative robotics, such as driver-assisted operations, engineer a potential automation of decision-making predicated on unobtrusive data gathering of human users. This form of ‘somatic surveillance’ increasingly relies on behavioural biometrics and sensory algorithms to verify the physiology of bodies in cabin interiors. Such processes secure cyber-physical space, but also register user capabilities for control that yield data as insured risk. In this technical re-formation of human–machine interactions for control and communication ‘a dissonance of attribution’ :7684, 2019. https://doi.org/10.1073/pnas.1805770115) (...) is created between perceptions of phenomena, materials and decision-making. This reconfigures relations not only between humans and machines, objects and subjects, but possibly disrupts attributive functions in the social system of Law. What it requires is shifting a legal accountability for action from a sovereignty of the human to a new materialist account based on a ‘cognitive assemblage’ between physiological data, computation and algorithmic sensing. This paper investigates the function of law as a guidance system to acknowledge this account of sensory and algorithmic computation as autonomous ‘sensing agents’ that may be accountable in situations of risk. This assemblage of robotic computation and sensory determination requires a clearer legal differentiation across the current static terminologies of person, property, liability and rights that maintain strict separations of object from subject. To neglect this, we argue, law will solely impute attributions of error to humans despite evidence of operation via mutual control. (shrink)

Tort law and liability insurance have a complex interaction in which each shapes the evolution and effects of the other. This interaction and its many forms and facets in different international contexts must be comprehended to understand fully the ethical responsibilities of liability insurers. This essay builds on previous scholarship on the tort law–liability insurance interaction through a series of observations from the perspective of a global reinsurer. It seeks in part to extend previous analyses (...) of this interaction by also considering issues in the developing world. It seeks to make some normative questions and stances explicit concerning this interaction, as well as to identify some empirical questions that still need to be answered. The responsibility of liability insurers includes ethically shaping the responsibility of others in interaction with tort law in countless diverse situations. (shrink)

As an important corporate governance mechanism, directors’ and officers’ liability insurance is theoretically associated with corporate financialization because it directly affects incentive constraints and risk preference of enterprise managers. However, whether there is a causal relationship in fact has not been sufficiently empirically investigated. Using a sample of Chinese non-financial listed companies in Shanghai and Shenzhen A-shares from 2008 to 2020, this paper empirically analyzes how corporate subscription to directors’ and officers’ liability insurance affects corporate financialization (...) and examines the mediating role played by risk-taking, financing constraints, and audit quality. The study finds that corporate subscription to D&O insurance increases corporate financialization. In terms of the influential mechanism, subscription to D&O insurance promotes financialization by increasing risk-taking, alleviating financing constraints, and improving audit quality. In addition, the results in the heterogeneity analysis suggest that the promotion of financialization by subscribing to D&O insurance is more significant in state-owned enterprises, growth and decline stage enterprises, and non-dual-employment enterprises. (shrink)

The deposit insurance makes the value of deposits independent from the behavior of other depositors or from the value of bank assets. Its existence induces a moral hazard which might threaten the stability of the banking system. The efficiency of the DI depends on the control of moral hazard, which means the agents’ responsibilisation, depositors included. There is a conflict between the DI principles and the present propositions improving this mechanism.The possible solutions in order to solve this paradox are (...) the restriction of the insurance coverage only for the demand deposits and the implementation of the double liability for the bank shareholders.The demand deposits insurance eliminates the incentive to bank runs caused by the fear of lack of liquidity, whereas the term deposits are exposed to losses which reduce the moral hazard induced by the demand deposit insurance.The double liability forces the shareholders of the defaulting banks to make supplementary payments limited to the nominal value of the owned shares. This combines the advantages of the limited liability and the unlimited liability.The efficiency of both propositions implies the enforcement of a closure rule of the banks whose net worth is close to zero.La garantie des dépôts rend la valeur des dépôts indépendante du comportement des autres déposa- nts ou de la valeur des actifs bancaires. Son instauration induit un aléa moral qui peut menacer la stabilité du système bancaire. L’efficacité de ce mécanisme dépend de la maîtrise de l’aléa moral. Cela suppose, entre autres, la responsabilisation des agents, y compris des déposants. Par conséquent, il existe un conflit entre le principe de la garantie des dépôts et les propositions courantes d’amélioration de ce dispositif.Les solutions envisagées dans cet article pour résoudre ce paradoxe sont la limitation de la garantie aux seuls dépôts à vue et l’instauration de la double responsabilité pour les actionnaires des banques.La garantie des dépôts à vue élimine l’incitation à la ruée due à la crainte de manque de liquidité, tandis que les dépôts à terme sont assortis d’une clause permettant à la banque de refuser tout retrait anticipé. Les titulaires des dépôts à terme s’exposent à des pertes, ce qui réduit l’aléa moral induit par la garantie des dépôts à vue.La double responsabilité oblige les actionnaires des banques défaillantes à effectuer des versements supplémentaires dans la limite de la valeur nominale des actions détenues. Cela réunit les avantages de la responsabilité limitée et de la responsabilité illimitée.L’efficacité des deux propositions suppose l’application d’une règle de fermeture des banques dont l’actif net avoisine zéro. (shrink)

This article considers the interplay between intellectual property rights and classic property rights raised by Hoffman v. Monsanto (2005) and advances the idea that intellectual property law can serve as an autonomous source of liability for intellectual property owners. The article develops the conceptual advantages of demarcating physical and intellectual properties and allocating rights and responsibilities based on the respective property sphere. It introduces a theoretical Hohfeldian framework, in which the grant of a positive (...) limited-term monopoly right entails a corresponding duty, to establish intellectual property law as a source of internal limits on intellectual property rights. The article is a prolegomena to a detailed matrix of those rights and duties within intellectual property law. This matrix could support patentee duties that go beyond public disclosure of the invention and could establish patent law as an alternative legal framework to tort law to address harms caused by inventions. (shrink)

캘러브레시와 멜라메드가 전개한 법 분석의 틀은 재산법이나 불법행위법과 같은 개별 영역에서 전통적으로 분석되어 오던 다양한 법적 관계를 통합하는 역할을 하리라 기대된다. 캘러브레시와 멜라메드는 관련 분야의 연구자들이 간과해 왔던 오염 문제를 해결하기 위해 자신들의 모델을 사용하고, 또한 형사 제재 관련 쟁점에 그러한 모델을 적용함으로써 통합적 접근의 효용을 입증하고자 한다.

Environmental politics needs more than piecemeal institutional efforts and more than calls for a set of 'new' values. It needs a realistic, comprehensive, and effective policy programme. Such a programme can be derived from a conjunction of Hardin's work on the 'tragedy of the commons' and Beck's analysis of the 'risk society', and involves exploiting the possibilities for the internalisation of risk provided by the insurance and reinsurance industries. Such exploitation requires tailored changes to the politico-legal environment, enforcing strict (...) liability for the production of risk, permitting any and all agents adversely effected by such negative externalities to initiate action for damages. The aim is not to clog up social and economic life with endless legal disputation, but through such a threat to ensure that environmentally significant investment and productive strategies are actively constrained by actuarially calculated strategies for risk internalisation. (shrink)

The complexity and emergent autonomy of Generative AI systems introduce challenges in predictability and legal compliance. This paper analyses some of the legal and regulatory implications of such challenges in the European Union context, focusing on four areas: liability, privacy, intellectual property, and cybersecurity. It examines the adequacy of the existing and proposed EU legislation, including the Artificial Intelligence Act (AIA), in addressing the challenges posed by Generative AI in general and LLMs in particular. The paper identifies potential (...) gaps and shortcomings in the EU legislative framework and proposes recommendations to ensure the safe and compliant deployment of generative models. (shrink)

Third-party property insurance (TPPI) protects insured drivers who accidentally damage an expensive car from the threat of financial ruin. Perhaps more importantly though, TPPI also protects the victims whose losses might otherwise go uncompensated. Ought responsible drivers therefore take out TPPI? This paper begins by enumerating some reasons for why a rational person might believe that they have a moral obligation to take out TPPI. It will be argued that if what is at stake in taking responsibility is (...) the ability to compensate our possible future victims for their losses, then it might initially seem that most people should be thankful for the availability of relatively inexpensive TPPI because without it they may not have sufficient funds to do the right thing and compensate their victims in the event of an accident. But is the ability to compensate one's victims really what is at stake in taking responsibility? The second part of this paper will critically examine the arguments for the above position, and it will argue that these arguments do not support the conclusion that injurers should compensate their victims for their losses, and hence that drivers need not take out TPPI in order to be responsible. Further still, even if these arguments did support the conclusion that injurers should compensate their victims for their losses, then (perhaps surprisingly) nobody should to be allowed to take out TPPI because doing so would frustrate justice. (shrink)

There is currently a stalemate over the correct approach to legal liability. To take a prominent example, it remains a point of contention whether land owners should be held liable for injuries to trespassers. Many of those who insist that land owners should be held liable for injuries to trespassers maintain this for purely economic or pragmatic reasons. In contrast, those on the other side frequently defend their view on the grounds that, in such trespass cases, owners are not (...) morally responsible for the injuries. We maintain that the best way forward for all parties in this debate is to recognize the existence of “morally responsible liability ”—of cases where owners qua owners are morally responsible for damages caused by their property. Once this is recognized, the debate can be framed in terms of whether there are economic or pragmatic reasons for legal liability to diverge from morally responsible liability. Unfortunately, there is no good account of morally responsible liability in the literature. Taking lessons from the failings of the few extant accounts, we draw on the work of A. M. Honoré and Jeremy Waldron to develop an account of our own. We argue that owners are morally responsible for damages caused by their property when and because their taking ownership of something leads to increased risk to others. We explain how and why such increases in risk come about, and how our account captures our intuitions concerning various cases, including those concerning injuries to trespassers. (shrink)

Microinsurance is the provision of insurance services to the poor, usually in developing countries. One of the key criteria of poverty is vulnerability even to minor events. In such cases, even micro coverage can make a major difference, yet still be funded by an affordable contribution by the insured. Like any kind of insurance, microinsurance can cover different risks to life, health, farming, property among other things. Our paper sketches how one could address and develop microinsurance business (...) ethics. First, we introduce microinsurance to the business ethics community and business ethics to the microinsurance community. Our draft of microinsurance ethics is then developed from two angles: as a holistic understanding of ideals and possible ethical conflicts in key stakeholder relationships and by distinguishing eight challenges when targeting the poor and when marketing microinsurance. As an open ending, the article suggests a three-stage action research design focusing on how microinsurance could (and should) internalize ethics, respecting rather than neglecting national- and local-cultural conditions. (shrink)

This book presents startling evidence that state monopolies can produce better outcomes than the free market. It provides an empirical comparison of the property insurance market in five European countries: Britain, Spain, France, Switzerland, and Germany. The market and cost structures of insurers in each country are described, and particular features of each market and the outcomes for customers examined. The regulatory frameworks vary widely from country to country and so do the market outcomes, both in terms of (...) premium level and in terms of available insurance cover.In view of the increase in major floods and other forms of natural damage over the last decades, the non-availability of insurance cover in many competitive insurance systems is likely to become a major political issue. This book shows that state monopoly is an adequate policy response. Competitive insurance systems are shown to provide incomplete cover at a substantially higher cost. In mixed systems, where the private sector can obtain reinsurance from the state the state tends to end up paying most of the costs while the private insurance companies keep most of the premium income.The book will be of interest to academic economists interested in privatization, regulation, the theory of the firm, and insurance; Policy-makers concerned with regulation and privatization; Insurance companies, regulators, and analysts. (shrink)

The liability regime for officers and directors of German companies combines strict and lenient elements. Officers and directors are liable for simple negligence, they bear the burden of proof for establishing diligent conduct, and they are liable for unlimited damages. These elements are worrisome for the reason that managers are confronted with the full downside risk of the enterprise even though they do not internalize the benefits of the corporate venture. This overly strict regime is balanced by other features (...) of the regime, namely comprehensive insurance and systematic under-enforcement. Even though the authority to enforce claims against the management is divided between three different actors - the supervisory board, the shareholders assembly, and individual shareholders - enforcement has remained the exception. Furthermore, under the current system of Directors’ and Officers’ liability insurance, board members do not feel the bite of liability as they are protected by an insurance cover that is contracted and paid for by the corporation. Thus, the current German system may combine the worst of two worlds, i.e., the threat of personal liability for excessively high amounts of damages in exceptional cases, and the practical irrelevance of the liability regime in run-of-the-mill cases. The present Article analyzes the shortcomings of the present regime and submits proposals for reform. (shrink)

To a large extent liability for ICT perils is still a grey area, even though an increasing number of information security researchers adopt economic approaches to highlight market mechanisms and externalities. That is why this article focuses on the need for increased awareness of externalities and liability among ICT professionals and their customers. This is critical to achieve in order to promote appropriate ICT technologies and services with comprehensible privacy and security protection. What is needed is a better (...) understanding of the consequences of externalities from ICT perils. This would benefit customers and increase trust in ICT products and services which in turn may even increase suppliers' profit margin; customers would be prepared to buy more services and products if contracts and service level agreements would accept more liability. Moreover, suppliers could sell guaranties and insurances on top of their products and services. The result would be a win-win situation and would benefit society at large. (shrink)

Abstract:This paper examines economic arguments employers sometimes use to justify restricting or excluding from employment those workers who are likely to incur high costs in health care insurance. We argue that, although profit-making is a legitimate goal for businesses, hiring practices based on non-job-related criteria violate principles of self determination, autonomy, discrimination, justice, and privacy. We conclude that hiring practices based on liability-driven ethics are not morally justified, but that as long as health care insurance and employment (...) are linked, businesses will continue to have an incentive to use liability-driven arguments. (shrink)

Theoretical arguments regarding the effect of corporate social responsibility (CSR) on firm liability risk are abundant; however, empirical evidence about this relationship is scarce. We investigate the relationship between CSR and the personal liability risk of a firm’s directors and officers. We argue that companies with better CSR performance represent a better underwriting risk for directors’ and officers’ (D&O) insurance providers and, therefore, have a lower cost of insurance. Our results show that firms with better CSR (...) performance are more likely to purchase D&O insurance and have a lower premium-to-coverage ratio, known as the insurance rate-on-line. We also show that this risk-reduction effect is stronger for firms that operate in a high-risk environment and have higher sales growth. These results provide evidence that CSR can be used as a risk management tool to mitigate liability risk and suggest which firms benefit most from this effect. (shrink)

In contrast to theoretical discussions about potential professional liability of clinical ethicists, this report gives the results of empirical data gathered in a national survey of clinical medical ethicists. The report assesses the types of activities of clinical ethicists, the extent and types of their professional liability coverage, and the influence that concerns about legal liability has on how they function as clinical ethicists. In addition demographic data on age, sex, educational background, etc. are reported. The results (...) show that while nearly one third (28.9%) of the ethicists regularly make recommendations about patient care, only 10.8% of them regularly make entries in the medical record; only approximately half (53.0%) of them are covered by professional liability (malpractice) insurance; and the vast majority (84.3%) of them say that concerns about legal liability do not influence the way they function as clinical ethicists. (shrink)

A question of interpersonal sovereignty dating back to the early modern era has resurfaced in contemporary political philosophy: viz. Should one individual have, prior to any consent, property rights in another person? Libertarians answer that they should not – and that this commitment requires us to reject all positive duties. Liberal-egalitarians largely agree with the libertarian’s answer to the question, but deny the corollary they draw from it, arguing instead that egalitarian regimes do not require other-ownership. Drawing on recent (...) property theory I argue the libertarians are wrong that positive duties necessarily imply other-ownership, and the egalitarians are wrong that egalitarian entitlements largely avoid other-ownership. Instead, a prohibition on other-ownership guides us towards a middling political position, both allowing and constraining our positive duties and liabilities to others. I conclude by suggesting that a prohibition on other-ownership creates an attractive boundary condition for property in general. (shrink)

Corporate property rights present an interesting challenge to the liberal conception of property rights, for it is unclear that the self-respect of individuals is promoted by the existence of a system of property rights for corporations. I argue that it is difficult even to identify who the individuals are who are the owners of large corporations, and why these individuals should be given the same claims, protections and immunities as other property rights holders since the liabilities (...) of corporate property rights holders are not the same as of those, for instance, who own their own homes. In this paper I first try to understand who it is who owns the large corporation. Secondly, I show that the limited liability of these corporate property owners makes the justification of corporate property rights quite difficult, from the classical liberal perspective. I end with a few brief remarks on changes in legal policy which would be consistent with my arguments on the nature and justification of corporate property rights. (shrink)

This paper explores, first, the common law principles of personal injury litigation explored through court decisions relating to sports injuries in (primarily) England and Wales and, second, the statutory schemes relating to concussion liability and young players in the United States. It explores the difficulties of using those strategies as a means of establishing liability for injuries arising from sports-related concussion (SRC) and explains why they are of such limited utility. While proposed class actions over historically acquired injuries (...) or individual litigation over recent catastrophic injury may have some merit, and while future amendments to the US laws might remove some of their inherent flaws, the difficulties in establishing liability for personal injury will always be exacerbated by the specific characteristics of SRC and the legal, factual and evidential issues that arise. For those reasons, the paper considers the potential benefits of other means of concussion prevention and mitigation, including no-fault compensation and mandatory insurance, the more widespread use of effective, nuanced concussion protocols, and inter-disciplinary research that engages with doctrinal legal research. (shrink)

Clinical Ethics Consultation (CEC) has grown significantly in the last decade, and efforts are being made to professionalize the practice. The American Society for Bioethics and Humanities (ASBH) has been instrumental in this process, having published the _Code of Ethics and Professional Responsibilities for Healthcare Ethics Consultants_ and founded and endorsed the creation of the _Healthcare Ethics Consultant Certified (HCEC) Certification Commission._ The ASBH also published “core competencies” for healthcare ethics consultants and has delineated a clear identity and role of (...) such consultants distinct from that other healthcare professionals. In addition, more enter the field armed with advanced degrees (MA and PhD) or certification in clinical ethics consultation. While some have questioned the trend toward professionalization, the momentum is clearly in its favor. This paper explores three questions: Does the professionalization of healthcare ethics consultation expose those engaged in the field to the types of liability claims faced by professionals in other fields? What specific liabilities could affect a healthcare ethics consultant? And finally, what should healthcare ethics consultants do to protect themselves against liability claims? We conclude that while the risk of liability remains low, those engaged in the field should accept that risk just as part of their status as professionals and, like those in allied professions, seek appropriate protection in the form of liability insurance. (shrink)

This paper deals with the claims of industrial operators and their insurers that expanding liability is being experienced in many legal systems in Europe and will lead to the uninsurability of certain risks. In this paper we address some aspects of this insurability problem by trying to identify precisely what might make an expanding liability risk uninsurable. Then we examine whether there are remedies for expanding liability that might result in certain risks remaining insurable. In that respect (...) we shall consider alternative compensation systems, financial caps, differentiation of risks, and the application of insurance policies over time, more specifically related to so-called ‘long-tail’ risks. Although each of these aspects might merit a separate paper, we prefer to discuss them in an integrated way by providing a balanced answer to current questions concerning the insurability of modem industrial hazards. (shrink)

The primary theme of this paper is the normative case against ownership of one's genetic information along with the source of that information (usually human tissues samples). The argument presented here against such “upstream” property rights is based primarily on utilitarian grounds. This issue has new salience thanks to the Human Genome Project and “bio-prospecting” initiatives based on the aggregation of genetic information, such as the one being managed by deCODE Genetics in Iceland. The rationale for ownership is twofold: (...) ownership will protect the basic human rights of privacy and autonomy and it will enable the data subjects to share in the tangible benefits of the genetic research. Proponents of this viewpoint often cite the principle of genetic exceptionalism, which asserts that genetic information needs a higher level of protection than other kinds of personal information such as financial data. We argue, however, that the recognition of such ownership rights would lead to inefficiency along with the disutility of genetic discoveries. Biomedical research will be hampered if property rights in genes and genetic material are too extensive. We contend that other mechanisms such as informed consent and strict confidentiality rules can accomplish the same result as a property right without the liabilities of an exclusive entitlement. (shrink)

Repositories of tissues, cell lines, blood samples, and other biological specimens are crucial to genomics, proteomics, and other emerging forms of biomedical research. Creation of these repositories by individual researchers and their affiliated organizations, commercial entities, and even governments has been labeled “biobanking” in the bioethics literature. Biobanking as a metaphor for the collection, transfer, and use of these specimens suggests a framework for the legal response to conflicts that may arise - one embedded in principles of contract law and (...) property ownership with an overlay of legislatively authorized regulation of the “industry.”. (shrink)

Contemporary discussions of the relationship between negligence liability and the provision of services by both public and private organizations frequently suggest the emergence of a ‘compensation culture’. Despite empirical evidence that compensation culture claims are somewhat inflated, an anxiety persists that risks of tortious liability may still undermine the implementation of public policy. Concerns about the potential negative effects of liability on public administration frame the problem in various ways. First, there is an anxiety that public authorities (...) may overreact to liability risks by becoming excessively risk averse. Secondly, there is a fear that compensation claiming will divert financial resources away from service delivery and towards the payment of insurance premiums and compensation awards. Thirdly, there is the fear that insurance companies will, as ‘risk bullies’, curtail public service activities. And, finally, there is the suggestion that risk management, including legal risk management, is becoming the dominant mode of government decision-making to the exclusion of professional judgement. This article addresses these concerns through a set of empirical case studies about the management of liability risks associated with road maintenance services. Although our findings suggest that public authorities respond to liability risks in a variety of ways, we found only limited evidence of the above concerns. In general terms, it was a case of public authorities being risk aware and responsive as opposed to risk averse. (shrink)

There are two main sources of compensation liability in Islamic Law of Obligations. These; contract and tort. Harming someone else is prohibited by any means. However, in social life, we witness that people harm others. Here, too, the legal order tries to ensure that the said damage is remedied. However, it is not a legal way to harm the other party for this. Are there other obligations at the same time as the liability for compensation? In this regard, (...) Article 86 of Mecelle regulates that compensation liability and usage benefit cannot be combined in accordance with the Hanafi sect. There are some theoretical reasons for this within the sect. However, other sects have opposing views to the Hanafi sect on this issue. In particular, they approached positively to the compensation of the usage benefit of the usurped property separately. The basis of this difference is based on whether the benefit is legally accepted as property. However, in the later periods, some exceptions were made to the first view within the Hanafi sect. These; foundation, orphan and commercial property. In addition, it has been accepted that in the Majalla amendments, the benefit can be accepted as property and may be the subject of compensation. (shrink)

Shareholders of corporations have their liability for actions of the corporation limited by law. Unlike the equity holder in a partnership or proprietorship, the assets that a shareholder has distinct from her holdings in the enterprise can not be taken to satisfy liabilities arising from actions of the enterprise itself. This paper argues that a reasonable principle of fairness argues for an alternative to limited liability, proportional liability. Proportional liability makes a shareholder liable for the same (...) proportion of a corporation''s excess of liabilities over assets that her number of shares bears to the total number of shares outstanding. The key idea is that it is unfair in situations in which explicit agreements can not be reached for shareholders to bear only limited risk when they may receive gains from stock dividends and appreciation that are not limited to any pre-determined amount. Proportional liability has not been much examined in the financial literature. Good utilitarian arguments have been given for limited liability over unlimited liability for corporate shareholders, but these arguments do not clearly support the choice of limited liability over proportional liability. (shrink)

This article conceptualizes what strict liability is in the criminal law. Four properties are found to be individually necessary, only jointly sufficient, for there to be the kind of moral blameworthiness that must underlie any just punishment: prima facie wrongdoing, absence of justification, prima facie culpability, and absence of excuse. Whenever criminal liability is imposed without the presence of one or more of these properties, the liabuility is said to be strict.

One of the most striking features of Athenian laws regulating commercial activities is the absence of any concept akin to the modern legal notion of the partnership or corporation. Despite the presence in Athenian society of numerous koinoniai, groups of individuals cooperating for some purpose, be it commercial or otherwise, Athenian law concerned itself solely with individual persons and did not recognize the separate legal existence of collective entities. And just as Athenian law did not recognize the legal existence of (...) partnerships or corporations, it also did not possess the notion of corporate liability. This meant that if someone entered into an agreement with a group of individuals and one of those individuals violated the terms of the agreement, the plaintiff proceeded only against the individual who acted contrary to the agreement, not against the group as a whole. If the plaintiff won his suit, he only had a right to receive compensation from the defendant's private property; he did not have a claim on all the funds held in common by the group. (shrink)

Algorithmic predictions are promising for insurance companies to develop personalized risk models for determining premiums. In this context, issues of fairness, discrimination, and social injustice might arise: Algorithms for estimating the risk based on personal data may be biased towards specific social groups, leading to systematic disadvantages for those groups. Personalized premiums may thus lead to discrimination and social injustice. It is well known from many application fields that such biases occur frequently and naturally when prediction models are applied (...) to people unless special efforts are made to avoid them. Insurance is no exception. In this paper, we provide a thorough analysis of algorithmic fairness in the case of insurance premiums. We ask what “fairness” might mean in this context and how the fairness of a premium system can be measured. For this, we apply the established fairness frameworks of the fair machine learning literature to the case of insurance premiums and show which of the existing fairness criteria can be applied to assess the fairness of insurance premiums. We argue that two of the often-discussed group fairness criteria, independence (also called statistical parity or demographic parity) and separation (also known as equalized odds), are not normatively appropriate for insurance premiums. Instead, we propose the sufficiency criterion (also known as well-calibration) as a morally defensible alternative that allows us to test for systematic biases in premiums towards certain groups based on the risk they bring to the pool. In addition, we clarify the connection between group fairness and different degrees of personalization. Our findings enable insurers to assess the fairness properties of their risk models, helping them avoid reputation damage resulting from potentially unfair and discriminatory premium systems. (shrink)

In Campbell Soup Co. v. Allstate Insurance Co. ), the United States District Court for the Western District of Michigan, Southern Division, held that a health plan's coordination of benefits clause, covered under the Employee Retirement Income Security Act, does not preempt a similar no-fault automobile insurance clause in the absence of irreconcilable conflict. The court found that ERISA's policy of shielding plans from unanticipated claims could only be furthered when the plan had expressly disavowed such claims. Because (...) the ERISA plan in this case did not specifically subordinate itself to the no-fault policy, the district court found that the no-fault COB clause controlled. However, to escape this ruling, ERISA plans need only redraft their COB clauses specifically to disclaim liability in case of conflict with provisions of no-fault insurance policies. This caveat substantially limits the scope of the court's ruling. (shrink)

To achieve more cost-effective deterrence of unreasonable risktaking through civil liability, I propose and demonstrate previously unrecognized benefits of using simple random sampling to resolve multiple claims against a business or government defendant in the aggregate. I show that counter to intuition and prevailing assumptions and practice, simple sampling will enhance, not compromise, deterrent results regardless of the number of claims and the variety and significance of differences among them. Indeed, it can be used to resolve multiple claims that (...) bear no resemblance to one another except for targeting the same defendant. The proposal can thus be employed to increase the efficiency of resolving relatively similar claims in class and consolidated actions and, by extending the application of such collectivizing processes, lower the cost of resolving all other claims that would be adjudicated as separate actions. I close by sketching a design for a reformed civil liability system that fully integrates and exploits the law enforcement benefits of sampling to better achieve the primary social objectives of accident risk deterrence and insurance. (shrink)

In this short paper, I shall answer the title’s question first in the context of criminal law and then in the context of tort law. In that latter section, I shall also mention in passing contractual and other forms of civil liability that are strict, although they will not be my principal focus. My conclusions will be that strict liability is never proper as the basis for retributive punishment; that it is a very crude device for achieving deterrence (...) through nonretributive penalties; and that with respect to tort liability, it is best justified as a means of defining insurance categories. (shrink)

Three major trends in American health policy are intersecting in a fascinating way. First, managed care has grown to become the most dominant form of health-care delivery, leading to reductions in health-care costs as insurers are able to influence health-care providers with financial incentives. Second, the present growth of managed care has slowed, almost to a standstill, largely on account of consumers questioning what effects these financial incentives are having on the care of patients — questioning that has been expressed (...) in particular through lawsuits against managed care companies.Third, we are experiencing a renewed interest in the existence of medical error and how it may be reduced as a result of the Institute of Medicine’s report, To Err Is Human: Building a Safer Health System. The most important aspect of this renaissance in error reduction has been its emphasis on health care as a system that can be made better through system-oriented change. The most frustrating aspect is that the IOM did not endorse change in malpractice liability, which consistently puts the impetus for reducing medical error on the individual provider rather than the system as a whole. (shrink)

Hobbes treats individual property as regulated by stable law, yet dependent on the arbitrary will of the sovereign. In this paper I catalogue the different definitions of property present in his main political and legal works – The Elements of Law, De Cive, Leviathan and A Dialogue between a philosopher and a student – with the aim of showing how he attempted to square those commitments. I record how the definitions of property affect his views about how (...) sovereigns hold property, the nature of the liability of subjects to having their property confiscated by the sovereign, and the legal conflicts that may arise between subjects and their rulers regarding such confiscations. (shrink)

The political theory of the property-owning democracy can be seen as a way of overcoming the ideological conflict between individualism and collectivism. Rawls offers the contemporary reference-point for this theory. Rawls contrasted the ideal-type of the property-owning democracy with the ideal-type of a capitalist welfare state. However, the terms of that contrast are not well drawn and raise a number of questions, in particular regarding Rawls’s a priori specification of the welfare state. An inductively derived specification of ideal-typical (...) welfare states suggests that horizontal redistribution, in line with the principle of social savings, is more important than vertical redistribution. Rawls’s preference for a social dividend or negative income tax scheme can be contrasted with the use of social insurance, but the latter has a claim to instantiate Rawlsian ideals better than a social dividend. There is a potential problem with the pre-emption of private savings in the welfare state, but this turns out not to be troublesome empirically or conceptually. The irony of the discussion is that those who have interpreted Rawlsian theory as justifying the welfare state have the better of the argument, despite Rawls’s own views. (shrink)

Socialism is dead, though many of its academic proponents take no notice of its demise. With its death, private property in the means of production is not generally in dispute, and the action in political philosophy centers on the justification of the welfare state. The heart of the welfare state is social insurance programs, such as government managed and subsidized health insurance, retirement pensions, and unemployment insurance. The arguments about health insurance will arguably be among (...) the most ferocious, difficult, and important of the welfare-state debates: Ferocious, because proposals to alter government managed or subsidized health care strike at people's fears and concerns in a way matched by few other proposals. Difficult, because people can often not even conceive of a market alternative to the status quo in health insurance, and there is no real existing alternative to hold up as a model. Important, because if an intellectually solid case for market health insurance can be established, then supporters of the welfare state should be on the defensive, since social health insurance is an institution central to their vision of the just or good society. (shrink)

A limited-liability corporation is an artificial (“legal”) person whose liability is limited to the assets “owned” by the corporation. This means that the real or natural persons (if there are any) who own the corporation are not liable for the consequences of corporate actions or events originating within the property “owned” by the corporation. Thus, while the limited-liability corporation itself is fully liable (i.e., to the full extent of its assets) for such actions and occurrences, its (...) human owners (if there are any) are not liable at all. Admittedly, they run a risk of losing all that they have invested in the corporation, but nothing more. This risk may be called an economic liability but it is not a liability in the relevant juridical sense: debtors cannot turn to the owners of the corporation to ask or compel them to pay its debts—it does not matter whether these debts are consequences of the corporation’s contractual obligations (wages, rents, purchases, loans, etc.) or consequences of harmful actions or events (explosions, flooding, contaminations, etc.) caused by the corporation or its property to third parties. Thus, we have the problem of the standing of the limited-liability corporation in view of the principles of Austro-libertarianism: the limited-liability corporation is a fully liable artificial person that shields any natural persons who are its owners from any liability. This is a problem because we cannot have it both ways. Either the limited-liability corporation is an autonomous (“self-owning”) person in its own right and then no objection can be made to it, as, despite its name, it is fully liable; or it is something owned by natural persons and then these owners must, like all other owners, be held fully liable for what they do (or command or permit others to do) with their property as well as for the consequences of events that originate within their property. Now, from an Austro-libertarian point of view—which, as I understand it, is committed to a realist philosophy and therefore akin to a natural law position1—it does not make sense to say that an artificial person can be an autonomous person in its own right.. (shrink)

This chapter uses the main principle to explain why economic rights should be regarded as human rights. Property rights, contract rights, and other economic rights are a solution to the productive investment CAP. Property and contract rights are not defined a priori, but should be defined in a way that they will, as a practice, do the best job of equitably promoting life prospects. The chapter uses the main principle to explain the moral appropriateness of the contours of (...) property rights to both tangible and intangible property; exceptions to contracts, including unconscionability, implied warranties, strict liability, mandatory disclosure, bankruptcy; the replacement of caveat emptor with caveat venditor in win-win contracts; market economies; negative income tax; voluntary consent to economic and other transactions; prohibitions on slavery contracts; minimum wage legislation. The chapter contrasts his account with fair starting-point theories of justice, including Ronald Dworkin’s theory. He also contrasts his account with Richard Posner’s account of the common law in terms of economic efficiency. (shrink)

Is the negligence standard in accident law acceptable to the egalitarian? The egalitarian - the egalitarian who would compensate only losses for which the actor was not responsible - cannot accept either a system of strict liability for all accidents or a system of social insurance for all accidents. A system of tort law acceptable to the responsibility - egalitarian must be a system based on negligence. But what will negligence mean? A negligence system in which the notion (...) of reasonableness is based on efficiency, I argue, is a system that redistributes wealth from the less well off to those better off. I consider alternative notions of reasonableness, ending up with a principle of proportional responsibility and distinguishing between commercial and non-commercial cases. (shrink)

The goal has been to devise a strategy that protects as much as possible the rights and liberties of all agents, both users of fossil fuels and people whose livelihoods and territories are at risk if the anthropogenic global warming hypothesis is true. To achieve this goal the standard climate policy instruments, taxes and emissions trading, should be discontinued. There are weaknesses in the theoretical perspectives used to justify these policy instruments and climate science cannot provide the knowledge that would (...) be needed to justify their implementation. In their place I propose a privatised policy, based on Austrian and libertarian frameworks of thought, which share an interpretation of climate change as a putative interpersonal conflict rather than market failure. The use of fossil fuels, like any other economic activity, should be subject to side-constraints designed to avoid the infringement of other people’s property rights. Tort litigation on the basis of strict liability would protect these rights, insofar as they need protecting. By providing a public arena for the competitive testing of scientific hypotheses concerning climate change, such litigation would also promote the public understanding and even the advancement of climate science. (shrink)

Theories of corporate social responsibility suggest that there ought to be a balance between what business takes from society and what it gives back in return. Recently, the practice literature within the insurance industry has been heavily pushing for the development of the Internet as a tool for commerce while virtually ignoring the role it could play in terms of information disclosure to stakeholders. This study examines whether insurance firms themselves reflect this emphasis, or whether companies that are (...) industry leaders with respect to web innovation for product marketing are also leaders in using the web for information disclosure. A study of the web pages for 40 property and casualty firms drawn from Franzis (2000), shows that financial disclosure for the overall sample is at best moderate. The disclosure of social responsibility information on these web pages is quite low, on average. Further, and importantly from a social balance perspective, the web innovators in terms of product marketing are not industry leaders in terms of information disclosure. (shrink)

The general consensus is that reform of medical malpractice law should be part of the health care system's overhaul. Medical malpractice litigation results in the expenditure of tens of billions annually, largely paid out of health care insurance funds and mostly paid to defendants' and plaintiffs' lawyers. By all accounts, this tort law regime ill serves the basic deterrence and compensation goals of civil liability. The causes and magnitude of these failings are disputed, and many typical reform proposals (...) sidestep the basic problems and may do more harm than good. In contrast, we advance a straightforward way to improve both deterrence and compensation. Essentially, the proposal is to remove current legal limitations on the scope of insurance subrogation that bar private and public health care insurers from “buying” the whole of their insureds' potential medical malpractice claims in exchange for lower premiums and taxes and expanded insurance coverage. Our proposal’s benefits accrue regardless of the cause and magnitude of the failings of malpractice law or the further reforms that might be adopted. (shrink)