Comparing Compensation in Spatial Planning Law and Private Law
December 2011 – On Thursday the 15th of December, 2011, Walter Dijkshoorn defended his thesis entitled ‘Planschaderecht en privaatrechtelijk schadevergoedingsrecht’ [Comparing Compensation in Spatial Planning Law and Private Law]. This thesis represents a comparative study of the Dutch law regulating damages due to spatial planning and the Dutch private law compensation rules.
Administrative law and civil law are two separate fields. In recent years, however, there has been an increasingly popular view that these fields of law should not diverge any more than is absolutely necessary, so as to achieve legal unity and equality. This comparative study seeks to clarify the point at which there is a need for further harmonisation of the law regulating damages due to spatial planning and the private law compensation rules. The purpose of Dijkshoorn’s research is to offer suggestions for how to improve the law regulating damages due to spatial planning; for example, when there are internally inconsistent rules, deficiencies or undesirable practical effects of the law. These suggestions are drawn from the private law compensation rules and aim to contribute to the further development of the law regulating damages due to spatial planning.
November 2011 – On the occasion of the 98th birthday of Erasmus University, Willem van Boom and Jeff Rachlinski gave talks highlighting the group’s research. Prof. Van Boom pitched his ideas for how Erasmus School of Law should extend its horizons by further developing its strength in empirical legal studies. Prof. Rachlinski presented some of his findings on how intuition misleads lawyers, judges and others.
Warnings and Product Liability - PhD thesis defence Sanne Pape
November 2011 – On Thursday 17 November, Sanne Pape defended her PhD thesis entitled “Warnings and Product Liability”.
Each year, numerous European Union (EU) citizens are injured whilst using products. Product liability law can help prevent such damage by effectively framing and applying the liability requirements in the context of warnings. A case in point is the European Directive 85/374/EEC, which holds producers liable for damage caused by defects in their products. Under this directive, several product warning issues can arise that civil courts must deal with when confronted with a claim of a consumer who has suffered injuries while using a product. For example, courts may have to address the adequacy of a given product warning in order to determine whether a product is defective, or they may have to form an opinion about whether a product warning should have been disclosed in instances when it was absent.
Underlying these legal warning issues are several presumptions about how people behave and interact with products and with their warnings. The main presumption is that warnings can be effective in modifying user behaviour. But is this a valid presumption? Related to this is the manner in which courts or litigants evaluate product warnings in European product liability law. Of course, it is common sense that the size of a warning can be considered relevant for assessing a warning’s adequacy, but is this a well-considered basis for legally judging a warning?
The objective of Pape’s dissertation is to use insights from cognitive psychology and ergonomics as a stepping stone for proposing recommendations that should guide European civil courts and litigants on how to best deal with important warning issues within the liability framework of the directive. Cognitive psychology and ergonomics are essential for a thorough legal analysis of warnings as they can provide insights on people’s abilities and limitations with regard to processing warning information, as well as insights on how the design of products can contribute to preventing accidents. Pape’s research project analyses per warning issue the value of the insights for European product liability law, focusing on the liability test of the directive. The warning issues are: What is a product warning? Why warn? What risks need a warning? When should consumers be warned in relation to other design solutions? How should consumers be warned?
Quantifying the Economics of Medical Malpractice: A View from a Civil Law Perspective
November 2011 – On Tuesday 29 November, Sofia Amaral Garcia, a PhD student in the EDLE programme, defended her PhD thesis.
Medical malpractice can potentially create several costs for society. Medical mishaps can have devastating consequences for patients and their families. Also, physicians might suffer from the consequences of their own mistakes, either psychologically or as a result of the effects on their reputation. Even the most brilliant and studious doctors can make mistakes. Victims of medical malpractice might also react; patients and their families can make a claim in the hope of being compensated for their losses. Therefore, while it is true that “to err is human”,[1] it is also the case that “to sue is human”.[2] The most recent empirical literature on medical malpractice is reviewed in Chapter 1 of the thesis.
The goal of the thesis is to investigate some of the consequences of having two separate sub‐systems coexisting within the same legal system, which is common in civil law tradition countries with a public national health system. When this holds, and taking the Spanish case as an example, civil courts decide claims involving private hospitals and administrative courts decide claims involving public hospitals. This means that different rules might apply depending on the type of hospital where the injury occurred. Moreover, a question that could arise is why both civil and administrative courts should or should not decide medical malpractice cases. In medical malpractice decisions, the level of compensation attributed to patients is a crucial variable. Identical patients suffering similar medical accidents should receive analogous compensation amounts. The Spanish Supreme Court Medical Malpractice Dataset (SSCMMD), which was created to deal with such issues, consists of medical malpractice decisions made by the Spanish Supreme Court from 2006 until 2009. With this dataset, a comparison between administrative and civil decisions is made in Chapter 2. Chapter 3 uses the SSCMMD to assess predictors of compensation in medical malpractice cases and to investigate how much patients are receiving for damages.
In the last few years, there has been a general concern with patient safety, which is currently on the agendas of several national governments. Some initiatives have been taken at the international level with the aim of preventing harm to patients during treatment and care. In several European countries, health care is mainly provided by a public national health system; this means that if a patient who is harmed in a public hospital succeeds in a claim against the hospital, national expenditures increase because the state takes part in the litigation process. This poses a problem in the context of increasing national health expenditures and public debt, which is the case in several European countries. In Italy, some regions have implemented a monitoring system for medical claims. If properly implemented, monitoring medical claims might increase patients’ safety and allow a reduction in medical liability insurance premiums. The impact of this policy is assessed in Chapter 4.
Finally, Chapter 5 discusses the thesis’ main findings, describes possible future research and concludes.
Efforts to improve patients’ safety are essential and are, naturally, a joint effort between medical practitioners, legal scholars, economists, empiricists and policy makers. Empirical analysis can be a powerful tool.
Reexamining the Role of Incarceration and Stigma in Criminal Law
November 2011 – On Tuesday 29 November, Laarni Escresa Guillermo, a PhD student in the EDLE programme, defended her PhD thesis.
One of the ways in which the legal system has responded to various sets of problems – specifically acts of negligence that have resulted in large disastrous consequences to society due to the changing physical, economic and institutional relationships – is by blurring the traditional scope and boundaries of criminal law, especially with respect to tort. The blurring of the criminal law’s boundaries refers to the trend that has seen criminal law increasingly sharing procedural and substantive properties that were traditionally exclusive to it. This includes the criminalisation of acts that were previously tortious or governed by regulation or administrative law (Bowles, Faure and Garoupa, 2008; Luna 2005; Svatikova, 2011); the use of civil procedures to pursue the objectives of criminal law; the relaxation of mens rea in criminal law, as seen in the case of corporate crime; and, in common law countries, the use of punitive sanctions outside criminal law (Mann, 1992).
A debate exists in legal circles, as well as in the law and economics community, regarding the desirability of this trend. While some feel that the trend is advantageous to society since it allows more flexibility in the legal system, enabling it to cope with fast-paced changes or with new problems in society, others believe that there is some value in preserving the traditional boundaries of crime (see, for instance, Cheh; Coffee, 1991, 1992; Cooter, 1999; Kadish, 1963; Koenig, 1988; Luna; Mann, 1992). In other words, acts that should be criminalised should be limited to those that unequivocally exhibit the elements of wrongfulness, harmfulness and intent or culpability.
One of the consequences of increasing criminalisation is the growing reliance on the criminal justice system. This is a costly form of regulating behaviour that includes the maintenance of the penal system and involves imposing harsh punishment on individuals. The high enforcement costs should be weighed against the corresponding societal benefits, which may include the prevention of environmental or financial disasters. However, if the same acts may be deterred and prevented using an institutional technology that is less costly to administer than criminal law, such as tort or administrative law, then society should prefer such technology.
Guillermo’s study aims to contribute to this literature by determining the circumstances in which the criminalisation of an act helps improve society’s welfare. The issue is narrowed down by considering two distinct sanctions that, under certain circumstances, may be imposed under criminal law, incarceration and social stigma. The study uses the tools provided by law and economics, where the normative criteria rest on social welfare maximisation. In order to gain a better understanding of how social stigma arises in criminal law and how social stigma and incarceration affect individual behaviour, the thesis provides a theoretical model. The process of social abstraction associated with model building makes it possible to identify the channel by which the sanction actually affects individual behaviour. The identification of these channels can serve later as a guide for policy.
The full text of the summary can be downloaded here.
Prof. Astrid Stadler appointed to the Erasmus School of Law Chair in Comparative Mass Litigation
August 2011 – Astrid Stadler has been appointed Chair in Comparative Mass Litigation at Erasmus School of Law. The chair is funded by Stichting Onderzoek Collectieve Actie (Foundation Research Collective Action). The appointment confirms the school’s commitment to the international and multidisciplinary study of law.
Collective redress and mass litigation is a topical issue in law, with securities and consumer and antitrust damage at the forefront of developments in this area. There are many different forms of such redress, ranging from the typical American-style class action to recent European initiatives such as the Dutch Wet Collectieve Afwikkeling Massaschade (WCAM; Collective Mass Claims Settlement Act), and the global development of collective redress is still in its infancy. Many legal and practical issues require careful consideration, which means that teaching and research in this area is much needed. With the appointment of Prof. Stadler, Erasmus School of Law has fulfilled both of these needs.
Prof. Stadler, who is currently professor at the School of Law at University of Konstanz in Germany, received her education as a legal scholar at Konstanz University, Boalt Hall (University of California at Berkeley), and Ludwig-Albrechts-University (Habilitation) in Germany. Prof. Stadler has since gained extensive experience in the areas of comparative law, as well as in civil procedure law with its international and European aspects. Since the late 1990s, her research has had a special focus on mass litigation, and she has worked as a legal consultant for policymakers in Germany and Austria. Prof. Stadler joins us to study the comparative legal aspects of mass tort litigation and alternative redress mechanisms.
Dr. Martijn Scheltema appointed Erasmus Chair of Enforcement issues in Private Law
August 2011 - Martijn Scheltema (1967) has been appointed Chair of Enforcement Issues in Private Law at Erasmus School of Law in Rotterdam (the Netherlands).
Scheltema is currently attorney at law/partner at Pels Rijcken & Droogleever Fortuijn, in the Hague-based law firm. He received his education and PhD degree at Leiden University (the Netherlands).
Scheltema has developed extensive experience in all facets of private law in relation to the public sector, including the role and function of legal entities charged with statutory tasks, contracts concluded with the government, and unlawful and lawful government acts along with enforcement in this area. Furthermore, as a Supreme Court litigator, he deals with a wide range of procedural matters. He has a particular interest in arbitration and other means of alternative dispute resolution, and his field of expertise includes international dispute settlement in relation to corporate social responsibility.
As the Chair is part time and involves one day a week, Scheltema continues his practice at Pels Rijcken & Droogleever Fortuijn.
As of August 2011, Scheltema joins the Rotterdam Private Law Institute, and he will participate in the research programme 'Behavioural Approaches to Contract and Tort: Relevance for Policymaking'.
For a profile of Professor Scheltema, please visit Pels Rijcken & Droogleever Fortuijn.
Willem van Boom appointed at SER
August 2011 – Willem van Boom was recently appointed Onafhankelijk lid van de Commissie Consumentenaangelegenheden (CCA) van de Sociaal-Economische Raad (SER), or independent member of the Consumer Affairs Committee of the Social and Economic Council of the Netherlands. He was also appointed Voorzitter SER Coördinatiegroep Zelfreguleringsoverleg (SER CZ), or chairman of the Self-Regulation Coordinating Committee of the Social and Economic Council of the Netherlands.
Neil Rickman appointed Chair of Costs and Benefits of Regulation
July 2011 – Neil Rickman, professor of economics and research director at the Department of Economics at the University of Surrey, has been appointed part-time Chair of Costs and Benefits of Regulation at Erasmus School of Law as of 1 July, 2011.
Prof. Rickman graduated from the University of Durham (BA (Hons) Econ) in 1988, before moving to McGill University (Montreal) to read for a PhD in Economics, which was completed in 1995. From 1991 to 1995, he was a Research Officer in Economics at the Centre for Socio-Legal Studies, Oxford, and a lecturer in Economics at Pembroke College, Oxford. He moved to Surrey in 1995 and became professor of economics in 2004. He is a CEPR (Public Policy) Research Affiliate and became Chair of the Royal Economic Society’s Conference of Heads of University Departments of Economics (CHUDE) in January 2007. Prof. Rickman is also a member of the Government Economic Service Professional Development Board.
By joining our research team, Prof. Rickman has strengthened the research on costs and benefits of regulation within the EMLE master’s programme, the EDLE doctorate programme and the Rotterdam Institute of Law and Economics in general.
The Chair of Costs and Benefits is financed by the Foundation for Compliance, Enforcement, and Regulation (Stichting Compliance, Toezicht en Regelgeving). With this position, the Erasmus School of Law aspires to add structural input to its multidisciplinary research activities. The Chair will help elevate research to a higher level, both in the comparative and the interdisciplinary study of law as a regulatory instrument. It will also contribute to the integration of the public debate concerning costs and benefits of regulation from an economic perspective, and to the quality of regulation as developed from a legal perspective. Moreover, the Chair will contribute to the academic debate on “better regulation”.
Vincent Buskens’ inaugural lecture
May 2011 – ‘Between Hobbes’s Leviathan and Smith’s Invisible Hand: Empirical and Interdisciplinary Legal Research on Formal and Informal Institutions in Trust Relations’ was recently published in a new book series entitled ‘Civilologie | Civilology’. This series focuses on how private law works in real life. Rather than analysing private law from a strictly legal doctrinal perspective, this series encompasses the combined use of insights from social sciences, ranging from economics to psychology and sociology. The aim is to analyse the behavioural assumptions underlying private law; to understand the effects it has on individuals, organisations, and businesses; and to appreciate the impact that assumptions and effects have on policymakers, legislatures, and courts. The series is edited by Willem van Boom (Erasmus School of Law) and Ivo Giesen (Utrecht School of Law).
Michael G. Faure elected member of the Royal Dutch Academy (KNAW)
May 2011 – Michael Faure was recently elected a member of the Royal Netherlands Academy of Arts and Sciences (KNAW). Since its inception, the Academy has been a learned society of scientists and scholars, with life membership awarded on the basis of scientific and scholarly achievement. The Royal Netherlands Academy of Arts and Sciences was founded in 1808 as an advisory body to the Dutch Government; it continues this role today. The Academy derives its authority from the quality of its members, who represent the full spectrum of scientific and scholarly endeavour and are selected on the basis of their achievements. The Academy is also responsible for 18 internationally renowned institutes, whose research and collections positions them at the vanguard of Dutch science and scholarship.
TPR Wisselleerstoel 2011-2012
May 2011 – Willem van Boom has been appointed visiting professor on the TPR wisselleerstoel 2011–2012 at the University of Leuven. The TPR wisselleerstoel is a visiting professorship endowed by the Belgian Tijdschrift voor Privaatrecht (Journal for Private Law). As TPR Chair, Van Boom will join his colleagues at the University of Leuven to further explore the empirical dimensions of private law.
‘Law, regulation, and comparative legal cultures’ – Anthony Ogus Seminar
May 2011 – A well attended seminar took place on 20 May on the occasion of Anthony Ogus’s valedictory address. Under the theme ‘Law, Regulation, and Comparative Legal Cultures – How subtle differences between legal cultures affect lawmaking, adjudication, and enforcement’, the speakers (Chris Hodges, Gerhard Wagner, Franziska Weber, Willem van Boom, Jeffrey Rachlinski, Mark Tuil and Siewert Lindenbergh) addressed Anthony Ogus and the public with informative and entertaining presentations. Michael Faure chaired the seminar for the opening, discussion and conclusion.
Anthony Ogus concluded the seminar with an inspiring Afscheidslezing (farewell lecture) on ‘Legal Interventions: How, When and Whether’. Prof. Ogus highlighted areas in the study of regulation that merit further research and called upon the researchers present to embark on studies in those areas.
Raimond Giard (1950) appointed Erasmus Chair of Methodology and Tort Law
May 2011 - Raimond Giard has been appointed Erasmus Chair of Methodology and Tort Law. Raimond Giard studied medicine at Leiden University, followed by a specialisation in internal medicine and oncology. He was subsequently trained as a clinical pathologist, and after his registration he started working as a clinical pathologist at the Maasstad Ziekenhuis in Rotterdam. At the same time, he also undertook training in clinical decision analysis and clinical epidemiology, and worked as a part-time assistant professor of clinical decision analysis, first at Rotterdam University and later at Leiden University, where he wrote a thesis on the biopsy diagnosis of inflammatory bowel disease. Because of the normative character of decision analysis, he became interested in the study of medical errors, especially in his own professional field. Hence, he was often consulted as a medical expert in negligence cases. As a result, he became interested in the legal science and began his law studies in 1999. In 2005, he defended his second PhD thesis, this time on medical malpractice. He then became a researcher in the private law group of the Erasmus School of Law, and in 2009 he was appointed assistant professor. In his legal work, Giard focuses on the methodology of fact finding and legal judgement and on decision-making in tort law: how to obtain reliable knowledge and how to use it. Because this know-how is also relevant for criminal justice, Giard also contributes regularly to courses. In his work, he promotes the use of insights from psychology and epistemology in legal practice for guiding and judging human conduct, which is well in line with the ongoing research carried out in the project 'Behavioural Approaches to Contract and Tort: Relevance for Policymaking'.
Pieter Desmet appointed to RILE
February 2011 - Pieter Desmet has joined RILE and will be working as a Postdoctoral Researcher in our research programme. Pieter has a background in Economics (BA, University of Antwerp) and in Experimental Psychology (MA, Catholic University of Leuven), and will defend his PhD thesis on the psychology of financial compensations (Rotterdam School of Management) in May 2011. In his research, Pieter examines how people respond to harmful behaviour in economic relations, and, more importantly, how victims perceive, process, and respond to different restorative practices, such as compensation, apologies, and so forth. In this study, he investigates how characteristics of the violation, the victim, the transgressor, and the reparative act itself affect the restoration process.
'Law, regulation, and comparative legal cultures' - Seminar Anthony Ogus, May 20, 2011
Though the European Union sometimes tends to ignore this, there are in fact substantial differences in legal cultures within Europe. In lawmaking at a European level, these differences are seemingly taken for granted, but they may result in significant obstacles to the implementation and enforcement of laws. Likewise, in comparative law – and in economics – subtle differences between legal systems may render comparison off target at best and nonsensical at worst. Hence, how do we track these subtle differences within European legal cultures, how do we evaluate them, and how do we avoid the major related pitfalls? Moreover, although the differences between legal culture in the United States of America and Europe are even more striking, a cross-Atlantic comparison of rules, paradigms, solutions, and approaches to shared societal problems is considered vital in gaining a better understanding of what works in our respective legal systems and under what conditions. But is there any sense in comparing rules if legal cultures differ? And what exactly does a comparison of legal cultures tell us? During Ogus’s seminar, held on the occasion of his valedictory address, a number of his Rotterdam colleagues presented their ideas on comparative legal cultures.
Christopher Hodges appointed Erasmus Chair of Fundamentals of Private Law
January 2011 - Christopher Hodges (1954), currently Head of the CMS Research Programme on Civil Justice Systems at the Centre for Socio-Legal Studies, University of Oxford, has been appointed part-time Chair of Fundamentals of Private Law at Erasmus School of Law. Hodges is well known for his expertise in European collective redress, ADR, product regulatory law, and product liability. He brings many years of experience as a practicing lawyer with wide connections.
Prof. Hodges joins the Erasmus School of Law interdisciplinary research team ‘Behavioural Approaches to Contract and Tort: Relevance for Policymaking’ to pursue new strands of empirical and theoretical research into new models for European civil justice systems and dispute resolution. Prof. Hodges has a wide knowledge of comparative legal systems, and is in the vanguard of researching and developing new techniques for dispute resolution. His most recent appointment was as an adviser on ADR to the European Commission. Prof. Hodges will thus provide invaluable input with a view to accomplishing the empirical aspirations of Erasmus School of Law research.
For a profile of Professor Hodges, please click here.
[1] As part of the title from Kohn et. al. (2000).
[2] As part of the title from Zeiler et. al. (forthcoming).
