On April 19-20, 2013 three members of the Tort Law Research Group presented papers at the fourth annual Private Law Theory Workshop, this year hosted by Queen’s University. The continued success of the Workshop illustrates the academic interest in private law theory for scholars based in central Canada.
Andrew Botterell presented a paper on public right and factual uncertainty. He argued for the conclusion that some of the rules governing factual causation in circumstances of uncertainty, rules that often seem to be inconsistent with basic principles of negligence liability, might usefully be understood as manifestations of certain Kantian ideas concerning the relationship between public right and private law. In particular, he argued that certain apparently recalcitrant doctrines concerning factual causation may make sense if we think of them as being required by the publicness and systematicity requirements of private law understood as “a publicly rightful set of norms that governs the legal relations between parties”.
Jason Neyers presented a paper on the juridical basis of public nuisance. His argument was that the tort of public nuisance has the right to pass and re-pass on public highways and waterways at its core (rather than somehow being parasitic on the criminal law prohibition) and that this right is consistent with the best understanding of why we have the rights that we do. He then used this understanding of the tort’s basis to explain why the courts are right to limit recovery to damages that are special (substantial, direct and particular) but also correct in allowing the recovery of pure economic losses.
Zoe Sinel, who formally joins Western Law this coming July, presented a paper on tort law and moral luck. It explores the connection between responsibility and liability with respect to outcomes in the law of torts. It conducts this analysis against the background of certain skeptical arguments about outcome responsibility: those of moral luck. It suggests that through understanding how tort scholarship confronts these skeptical arguments, we might gain valuable insight into tort law’s (or, for that matter, private law’s) fundamental concern, namely the nature of the justification of the defendant’s remedial obligation.
One other member of the Tort Law Research Group, Stephen Pitel, also attended the Workshop. The next such Workshop will likely be hosted at Western Law in 2014.