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Street-Level Tort Law: The Bureaucratic Justice of Liability Decision-Making

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Publication details

JournalThe Modern Law Review
DateE-pub ahead of print - 3 May 2012
DatePublished (current) - May 2012
Issue number3
Volume75
Number of pages20
Pages (from-to)347-367
Early online date3/05/12
Original languageEnglish

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.

    Research areas

  • tort law, legal liability, bureaucratic justice

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