This chapter takes a psychological perspective on tort law decision-making, drawing on psychological theory, empirical research, and legal practices in tort litigation to assess the state of knowledge about decision-making in tort cases. It examines how plaintiffs decide to bring a lawsuit, how defendants respond, and the process of dispute resolution in tort cases. Most tort cases do not go to trial, but trial decisions remain significant as a framework for negotiations. The chapter also draws on psychological theory and research to describe how the judge and the jury as decision-makers resolve legal issues and reach liability verdicts and damage awards in tort cases. Psychological heuristics, biases, and other psychological phenomena affect decision-making in intentional tort, negligence, and strict liability cases, and judgments about liability and damages. The chapter closes with suggestions for further investigations of understudied topics in tort law decision-making.

In Stage 3 of its review the Court has to examine if the contested interference can be held to be justified by objective and convincing reasons. One of the requirements for a restriction to be justifiable is the lawfulness requirement. The requirement has been given an autonomous and substantive reading by the Court, which entails that a restriction must have a basis in domestic law, the legal basis must be sufficiently accessible, the interference must be sufficiently foreseeable, and it must not be arbitrary. In addition, in particular in cases regarding surveillance, searches and the exercise of other discretionary powers, the Court has required that procedural safeguards must be offered. All these requirements are discussed in this chapter.

The principle of legality (Article 49 Charter) is a cornerstone of criminal justice systems and has a long history in the European legal order. It has four aspects: it prohibits retroactivity, analogical interpretation, vagueness and reliance on custom in criminal law. Many of its functions find application in European law. Concomitantly, several inconsistencies and shortcomings are observed. Its application to mutual recognition is effectively excluded and the same goes for rules on jurisdiction. These two lacunae cause uncertainty in the cross-border application of criminal law. Moreover, the CJEU has sought to restrict its application to limitation rules, but with contradicting reasoning. Three significant challenges are identified in this chapter: the multilevel criminal justice created by the institutional arrangements of the European legal order; the everlasting conflict between due process and crime control observed in European criminal policy; and the lack of defined theoretical rationales and values justifying the principle of legality.

Embedded in this analytical framework, the fifth chapter is dedicated to an analysis of how due diligence obligations are applied and implemented in different areas of international law. Since the standard of due diligence is highly context-specific, problems and prospects related to its application are best illustrated by taking a closer look at the standard’s implementation in concreto. To this end, three fields of international law are singled out in which due diligence obligations have already been prominently discussed and which show certain similarities to the area of human rights law: the protection of the environment, the fight against terrorist activities, and rather recently the combat against harmful cyber activities. Based on the analytical framework introduced in the previous chapter, the application of due diligence obligations is discussed for each field taking into account the relevant state practice, international jurisprudence, and scholarly writings.

The fourth chapter develops an abstract analytical framework of the different components of an international due diligence standard. It seeks to deduce those elements which due diligence obligations contain generally and irrespective of their application to specific fields of international law. With knowledge, capacities, and reasonableness three major components are identified: If a state knows of potential violations of international law, it is obliged to employ the reasonably available means at its disposal to prevent such violations or to sanction them should they occur nonetheless. The chapter then discusses common problems inherent in the application and implementation of due diligence obligations. Most notably, it elaborates on how the foreseeability threshold might be overcome; how the problem of diverging capacities could be addressed and whether all states have to adhere to the same standards of diligence; and finally how the vague and broad notion of reasonableness can be given substantial meaning.

Sharon P. v. Arman, Ltd. is representative of a line of cases refusing to impose a duty of reasonable care on defendants in third-party rape cases. The plaintiff in Sharon P. was raped by an unknown assailant in an underground parking garage owned by the defendant. The California Supreme Court ruled that no duty should be imposed because the rape was not reasonably foreseeable, even though conditions in the garage had been allowed to deteriorate and the underground location invited criminal activity. The rewritten feminist opinion unpacks the concept of foreseeability to uncover hidden male bias in its application. Arguing that women’s experiences of rape and the fear of rape must be taken into account, the feminist opinion concludes that the risk of rape is objectively foreseeable. To conclude otherwise would ignore the systematic vulnerability of women plaintiffs and allow gender bias to infiltrate tort law. The accompanying commentary updates developments in California and elsewhere and argues for extending a duty of reasonable care to all third-party rape cases.