Regulatory Law

Criminal Law
Areas of the Law

Tort Law

Comparison of Different
General Considerations Seeks to secure the rightful borders of our possessions and ourselves by penalizing the individuals who culpably cross the borders defined by our rights.

Aims:

General Considerations Seeks to secure the rightful borders of our possessions and ourselves by setting matters right should we suffer damage by border crossings.

Sanction

Punishment of defendants takes form of deprivation of liberty, harsh treatment and social condemnation and branding of defendants. Generally but not invariably conduct must be broadly intentional or at least knowing risk creation (recklessness), although gross negligence and in very rare cases simple negligence is also punishable. Evidence for the above: these are states of mind needed for proper guilt and condemnation; insanity is a complete defense to a charge of criminality, strict liability is quite controversial (along with simple negligence) in the criminal law and there is considerable reluctance to punish children under the criminal law. Punishment must be leveled against individuals, and can be brought against corporations, with culpability of an individual representing the corporation (O'Neill). Sanctions for the most part must be individualized (Regina v. Cunningham, Regina v. Faulknor, but felony-murder rules tend to be contrary to this.

Defendant must make matters right to plaintiff, typically by D compensating P.

Standard of Culpability:

Intentional conduct is culpable, but simple negligence and strict liability are also torts; standard of negligence easier to meet than for most criminal negligence. Evidence of different standards of culpability for the tort law (vs. criminal law): strict liability rules are pervasive and uncontroversial in torts; even the insane are held accountable; and children are more easily held accountable in torts than in the criminal law. (Occasional suggestions that Ds who act involuntarily may be liable (end of Williams v. Hays I but see Hammontree for different view.) Compensatory claims may be brought against individuals, but may also be brought against organizations or corporations, e.g., tort suits against the Ku Klux Klan, without finding an

General Considerations Essentially preventive; seeks to protect our rights by preventing harms from arising (typically to large numbers of people) by specifying in advance how certain activities must be done by means of a blueprint for administrative agencies--prospective guidance versus retrospective compensation or punishments. Pre-market laws better at this than post-market laws. Civil and criminal penalties specified by statute if preventive regulations are not followed; these tend to be less severe than normal criminal or tort penalties. No particular standard of culpability required for regulations; there will be for civil and criminal penalties for violation (culpability can pertinent for "criminal" penalties within a statute). Conduct of both individuals and organizations is regulated.

Regulatory Law
Elements of an Offense:

Criminal Law

Tort Law

Causation:

State must establish both a voluntary, wrongful act and the appropriate guilty mind-why? Because we want to be sure that punishment and condemnation are properly attributable to someone whose choices, voluntary, & culpable acts lead to crime and who is properly guilty or at fault for the action for which he/she is punished. Not an essential element of every crime, for there are inchoate crimes such as attempts and conspiracy. Particular crimes may require that causation be established, e.g., homicides, rapes, battery, burglary.

individual who represents corporate culpability. 1. Defendant must have violated a legal duty, 2. Plaintiff must have suffered a harm, 3. Ds violation of duty must have caused Ps harm, 4. D; violation of duty must have been the proximate cause of Ps harm. Be able to explain why differences in essential elements. See class notes on this.

Not applicableAffected entities must follow the laws agencies have created to govern the activities of the entities.

Standard of Proof:

The state must establish guilt beyond a reasonable doubt. Most demanding legal standard of proof. According to Murphy, Liberty-loving people would resort to criminal law last to protect their rights. Think of hiring someone to protect our rights, but realize that protectors of rights can pose problems as well.

A plaintiff must establish elements of a tort by a preponderance of the evidence or 50% of the quality and quantity of the evidence plus a feather.

For OSHA or EPA it is sufficient to show a generalized causal connection between exposure to toxic substances and elevated disease rates in a group without a need to prove individualized causation for each victim or a doubling disease rate. May vary with regulatory agency; since the 1980 Benzene case OSHA must establish that there are significant health risks before regulating by a preponderance of the evidence. (Mainly N/A) More important is the standard of appellate review, the degree of stringency with which appellate courts review regulations in order for them to be upheld.

A. Advantages of using the tort law, compared with the criminal and regulatory law in a variety of contexts. (Comparative advantages based on political philosophy, success in providing protections, repairing damage, practicality) 1. The criminal law is more intrusive than torts (Murphys claim, see pp. 1. Not greatly intrusive-more than contract law, but less than criminal law, and 1. Regulatory law is more intrusive than the tort law because it tends to specifically

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Extent of Intrusiveness 237-241).

Criminal Law

Tort Law
channel/specify behavior--if one wants to engage in a particular activity, the activity must be done according to certain prescribed rules, e.g., OSHA workplace protections, EPA air protections, or FDA drug approval. 1'. Intrusiveness a. Requires state authority and power to investigate scientific issues, to investigate problems, issue rules, and enforce them. b. More intervention by the state than tort law --See above

less than regulatory law. 1'. Intrusiveness a. Requires little state power. b. Little intervention by the state --The state provides a forum for refereeing disputes. --The state courts develop public rules over time for what violations are compensable. --Typically loss of money if D. found liabie.

1'. Intrusiveness a. Requires state apparatus to investigate, prosecute and punish criminals. b. Considerably more room for intervention by the state in peoples lives, e.g., federal electronic surveillance of citizens; in addition --The state provides a forum for refereeing disputes. --State courts develop public rules over time for what counts as a crime. --Substantial personal losses accrue to a person found guilty and punished under the criminal law (see above) c. No specific channeling of behavior d. Crimes are for the most part are wrongs of commission. e. Sanctions are more devastating for those held accountable in the criminal law compared with torts. Extent and Severity of Sanctions 2. Criminal sanctions are typically the most severe. --Deprivation of liberty --Harsh treatment of the criminal --Condemnatory or branding aspect of punishment. --Inflicts frustration and unhappiness on people. (See Murphy & Coleman, on p. 237)

c. No specific channeling of behavior. d. Torts are both wrongs of omission and commission (omissions perhaps more prevalent). e. Tort sanctions are not as personally devastating as criminal punishment. Compensation that must be paid can be considerable.

c. Specific channeling of behavior--rules prescribing how activity is to be conducted. d. Regulatory wrongs are likely to be wrongs of omitting to comply with administrative rules. e. Sanctions are typically not particularly harsh, usually slaps on wrists.

2. Tort sanctions are less personally devastating than criminal punishment, but potentially more so than many regulatory penalties. --No loss of liberty --No harsh treatment --No condemnatory or branding aspect, except where punitive damages may be granted or possibly for intentional torts (but still pale next to criminal punishment. --Defendants pay compensation; very rarely punitive damages, but punitives may be levied for intentional torts or particularly outrageous conduct.

2. Sanctions: both civil and criminal--specified in statutes --Typically civil penalties are low fines, sentences < 1 year. --Typically criminal penalties are like sanctions for misdemeanors--relatively low fines and short punishments. The OSH Administration finds these sanctions to be too minimal to be effective.

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Administrative Costs

Criminal Law

Tort Law
3. Administrative costs --Permanent bureaucracy --Must support administrative apparatus (see above).

3. Administrative costs --Permanent bureaucracy --Must support extensive administrative apparatus (see above).

Availability of Needed Relevant Information

4. Having relevant information available less important here.

3. Administrative costs --No permanent bureaucracy; only a forum, a court, for hearing and adjudicating violations of rights (similar to contract law, contrasts with criminal and regulatory law) --Costs born initially by the complainant(s) --Costs only if the plaintiff believes that losses worth pursuing, i.e., that private enforcement of his/her rights is worth pursuing. [There can be substantial private costs over many individual Ps bringing tort suits; costs over many Ps can add up.] 4. Use of the tort law is appropriate when parties have best information available to prevent harms, e.g., car accidents Shavell (Reader, 377-379)

4. Regulatory intervention is appropriate when agencies are in a better position to have relevant information needed to prevent harms, e.g., toxic substances or defective drugs. (Shavell, at 337-339) 5. Political Pressures? Regulatory law is subject to great political pressures in the legislative, rulemaking and rule applying processes. We see much of this every day from politicians and general public relations antiadministrative law campaigns, despite protective function of administrative agencies. 6. Backup function? The regulatory law has certain advantages because it aims, not to rectify harm after it occurs, nor to punish after crime committed, but to prevent the harm from occurring; it internalizes the costs of preventing harm. --Also has advantages when causation for whole classes of people needs to be established.

Political Pressures

Strength as a Backup to Other Areas of the Law

5. Political Pressures? The criminal law is not typically subject to political pressures in implementing the law; may be in legislative enactments, especially when there have been high profile crimes. Trials with juries may provide some insulation and some social acceptance of the outcome (rarely the opposite occurs). 6. Backup function? In some circumstances the criminal law serves as a protection of last resort because of stern prohibitions, general deterrence of the most severe penalties, along with great punishment threats, condemnation and intrusive sanctions (see below), e.g., consider People v. ONeill and Film Recovery Systems ,

5. Political Pressures? The tort law is not subject to great political pressures in applying the law because up to individual Ps and lawyers, but will be subject to pressures in tort law legislation, now during elections, and often from general public relations campaigns against torts. 6. Backup function? If other areas of law are not protective, then tort law may serve as a protection of last resort (Rosenberg; Sindell (backs up FDA failure), Silkwood (backs up NRC protections). --The regulatory law is subject to great political pressures which may result in standards being too

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Criminal Law

Tort Law
--Advantages when problems need to be comprehensively addressed, e.g., air pollution CFCs, PCBs, global warming, different workplaces with similar toxic threats. --But still subject to political pressures that may result in lower standards than would be fully protective. Agencies can also fail to realize the depths of a problem.

also illustrated in Chicago Magnet Wire.

lenient --In the criminal law it is difficult to prove individual culpability and individual culpability may not be appropriate.

Repair Harm Done to Victims

Nature and Extent of Protectiveness

1. The criminal law may be more protective in some instances because of stern prohibitions along with the severity and branding of its sanction (Murphys argument) Which of these claims is correct? a. The mere incompensability of harms is not a sufficient reason to use the criminal law, e.g., when someone is killed, because, depending upon other factors, there may be appropriate use of the tort or regulatory law. b. Murphys argument is more plausible here, for we tend to reserve the harshest sanctions for the most outrageous and fear-inspiring wrongs. c. Murphys argument has plausibility here, but can prove too much, e.g., criminal law enforcement of moral codes.

Thus, the tort law acts as a backup to the criminal law, for liability is easier to prove (O.J. Simpson criminal case v. tort case). 7. Provides something other areas do not: compensation to injured person! B. Disadvantages of Using Tort Law (compared with other areas) 1. In some cases the tort 1. There is a need for more law is not sufficiently prospective protections than protective the tort law (or criminal law) often provides, because it can address harms that torts is not effective in preventing. Can also address problems more comprehensively than can torts (or criminal law) Appropriate to utilize the regulatory law if it can be properly justified practically and theoretically. b. Where harms inspire great fear (Murphy)

a. Where there are incompensable harms (Murphy)

c. Where there is a great temptation to bypass other social institutions, e.g., property exchange institutions. 2. Tort law may not be sufficiently protective a. Causation, especially where statistical or joint causes are involved, may be difficult to prove. (Combination of standard 2. Regulatory law may be more protective a. Fewer problems proving the relevant causal claims concerning statistical causes, and possibly easier to establish regulations where

Other Issues of Protectiveness

Regulatory Law

Criminal Law

Tort Law
joint material causes produce the harm, because general causal relations between exposures and harms are easier to establish than in torts. In addition, the costs of regulation may be less a problem than some think. b. The regulatory law may be better in this case, for it aims to prevent harms from occurring and preventive measures may be less costly than remedial tort suits. (Shavell, at 337-339) [Ounce of prevention less than pound of cure (compensation)] Make prevention of harm part of the upfront cost of doing business. c. The regulatory law may be better in this case, for one can enact preventive regulations and take into account latency problems.

of proof together with causation requirements of torts may make causation too difficult to prove to be protective, e.g., side stream tobacco smoke.)

b. When defendants are judgment proof, they then have little deterrence incentive to avoid violating rights. (Shavelll)

c. Defendants might not face suits because of causation problems (see above) and because of problems of latency with certain health harms. (Shavell) d. Tort law is insufficiently comprehensive in addressing problems.

3. The criminal law is not likely to be a very important actor because most risks from toxicants result from accidents or understanding long after risks have been posed. Criminal law would be appropriate to use when an agent engages in outrageous misconduct causing harm. 4. Use of the criminal law will face similar problems unless the conduct leading to the harm is particularly outrageous.

3. Where risks are not apparent to potential victims the tort law will function worse because victims cannot protect themselves or identify tortfeasors very well applies aptly to invisible, imperceptible, undetectable molecular harms. 4. Where harms or risks are dispersed over many victims the effectiveness of tort remedies is limited; reduces incentives to initiate a case. 5. Torts can address harms to large numbers of people, but it is awkward and there are increasing barriers to

d. Regulatory law can provide more comprehensive approaches for addressing problems than tort (or criminal) law. 3. Where risks are not apparent to potential victims the regulatory law has advantages because govt initiated health standards with expert support can provide better protections. (Shavell, at 337-339)

4. Where harm or risks are dispersed over many victims, regulatory agencies can better address the risks or harms (and can be more comprehensive). 5. Administrative protections have an advantage when it is better to try to prevent the harm than compensate or

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Criminal Law
class actions.

Tort Law
punish after the fact, because of the severity of harm threatened and perhaps large numbers of people affected. 6. Spreads the costs of prevention so they are incorporated into activities up front: community as a whole, regulated industries, insurance companies, or consumers support the costs of trying to protect rights through preventive measures, thus in some cases regulatory law may be preferred to the tort law. 7. Where administrative costs relative to the harms to be prevented are reasonable for an administrative agency it has an advantage.

Enforcement/ Administrative Costs

6. Costs of enforcing the law and rights protection are born by the public, but criminal liability is more difficult to prove than tort liability.

6. The costs of enforcing rights are privately born and may be high for individual cases and lawyers screen cases, thus preventing some plaintiffs from receiving compensation and preventing some people from having their rights protected. 7. Where administrative costs relative to the harms to be prevented are unreasonable for an administrative agency torts would function better. 8. The tort law is not very good at forcing companies to internalize the costs of their activities. This works only when the tort law is quite effective & suits are filed and in some circumstances it simply cannot be effective (above).

Internalizing the Externalities of an Activity

7. Administrative costs of trying to utilize the criminal law are likely to be even greater compared with a regulatory agency, because of high standards of proof and individual liability. 8. Since criminal law deterrence works well to deter only outrageous kinds of misconduct, it is unlikely to do much to force the internalization of health costs of a companys activities.

8. Administrative law will be superior when preventive protections produce fairer distributions of benefits and burdens than would torts. Administrative health protections should be better at forcing companies both to internalize benefits and health costs of their activities.

Statistical Evidence of Causation and Why the Tort Law Can Fail to Provide Compensation and an Appropriate Regulatory Law Could e !tili"ed# Suppose that exposure to Bendectin a morning sickness pharmaceutical causes shortened limb birth defects at a rate of about 1.2 times higher than the background rate of shortened limb birth defects. Suppose also that the rate of birth defects in absence of a mother taking Bendectin is 2% of natural births or 2/100. Assume further that there are 2,000,000 li e births in the !.S. each "ear. #ut of these there $ould be about %0,000 shortened limb birth defects in absence of mothers taking Bendectin. &f Bendectin indeed causes an additional 20% shortened limb defects, this $ould be an additional ',000 such defects per "ear, a substantial number of children $ho should be compensated or their in(uries pre ented.

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Criminal Law

Tort Law

)o$e er, in order for plaintiffs to reco er compensation in the tort la$ for exposures to toxic substances the" generall" must sho$ that it is more likel" than not that exposure to the substance can cause harm *general causation+ and that exposure to a plaintiff,s product more likel" than not did cause plaintiffs, harm *specific causation+. &n man" (urisdictions plaintiffs in order to reco er compensation must sho$, based on human epidemiological studies, that exposure to the substance doubles the rate of ad erse effects *in this case shortened limb defects+ for both general causation and specific causation. )o$e er, on the abo e scenario it $ould not be possible for families $hose children suffered from shortened limb birth defects to sho$ in the tort la$ that the" should recei e compensation for in(uries their children suffered, simpl" because a relati e risk of 1.2 is not sufficient *is less than a relati e risk of 2+. -hile the" $ould in all likelihood be precluded from reco ering in torts, demonstration of a relati e risk of 1.2 for Bendectin causing this kind of birth defect $ould be .uite sufficient for a regulator" agenc" such as the /ood and 0rug Administration to take the drug off the market. 1onse.uentl", $hen there is statistical e idence of harm from toxic products, but it is short of $hat the tort la$ might re.uire to establish causation in torts, action b" an appropriate regulator" agenc" might $ell pro ide protections *although for some, it $ould be after the fact of in(ur"+. #ne can make the same argument for secondhand cigarette smoking causing lung cancer in ste$ardesses exposed to smoke $hen it $as still permitted on airplanes *the relati e risks numbers are about the same+.