Street-level tort law: the bureaucratic justice of liability decision-making

Simon Halliday, Jonathan Ilan, Colin Scott

Research output: Contribution to journalArticlepeer-review

18 Citations (Scopus)

Abstract

Much legal academic work on tort focuses its attention primarily on the decisions of the courts. Despite the importance of such work, its subject matter represents only a limited aspect of the domain of tortious liability. It is well established that the vast majority of decisions concerning tortious liability are made by bureaucrats. Unavoidably, then, there are two tiers of justice in tort law. Whereas most tort law scholarship focuses on the upper tier – judicial decision-making – the contribution of this article is to focus on the lower tier – bureaucratic decision-making. We explore the notion of bureaucratic justice in tort law, arguing that the justice of bureaucratic decisions on tort needs to be considered on its own terms and not by comparing it to judicial standards. We develop the notion of bureaucratic justice by applying a normative framework originally set out in relation to public administration. We argue that it enables an evaluation of the strengths and weaknesses of different ways of bureaucratically determining liability claims in tort. The regimes discussed in this article concern the liability of public authorities, but decision makers comprise both state and non-state actors and the bureaucratic justice framework is, in principle, applicable to understand and evaluate the liability of both public and private actors.
Original languageEnglish
Pages (from-to)347-367
Number of pages21
JournalModern Law Review
Volume75
Issue number3
DOIs
Publication statusPublished - 1 May 2012

Keywords

  • tort law
  • legal liability
  • bureaucratic justice
  • tort
  • negligence
  • insurance
  • public authorities

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