Request for Letter of Recommendations

Documents to Prepare when Requesting for Letter of Recommendations

  • Statement of Purpose
  • Résumé
  • Official Test Scores
  • Transcript and List of Courses
  • Merit Recognition or Scholarships
  • Research Goals and Future Plans
  • Published Works

 

Achievements and Area of Focus for Professor S

  • Democracy: Philosophy, Practices, and Challenges
  • Seminar on Political Communication
  • Politics of Collaboration and Integration in Europe

Achievements and Area of Focus for Ph.D L

  • Territory and Public International Law
  • Public International Law I

Achievements and Area of Focus for Professor R and Professor B

  • Shinhan Seminar

Achievements and Area of Focus for Professor K

  • International Law and Governance
  • Arbitration in Theory and Practice

 

Academic Articles and Papers

  • Apple Inc’s Dubious Tax Evasion Strategy : Double Irish with a Dutch Sandwich
  • The Myth Exposed : American Rule of Law Part I
  • Analysis of Russia’s Annexation of Crimea as Occupation through the Eyes of Eyal Benvenisti

Transcript (GPA) and List of Courses

GPA : 3.89 (94.9 / 100)

  • International Law and Governance
  • Law and Society
  • Free Trade Agreements
  • International Arbitration: Theory and Practice
  • Law and Policy
  • Territory and Public International Law
  • Public International Law I
  • The Rule of Law in Theory and Practice
  • WTO Law and Practice
  • Senior Thesis : Crimea Occupied – Analysis of Russia’s Annexation of Crimea through the Eyes of Eyal Benvenesti

Merit Recognition or Scholarships

  • 2011
  • 2012

Official Test Scores

  • IBT : 118
  • TEPS : 970
  • TOEIC : 980
  • ESPT : 845
  • IELTS : pending

[ #008 ]     [ Back to Journal Entries ]     [ #010 ]

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“Injustice Anywhere is a Threat to Justice Everywhere” – King, Jr.

Joining in 2010, Seungmin is a Founding Member of and Senior Partner at Yonsei ULS. Please be advised: the comment, writing, or column does not represent  the official position of YULS.

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[101] International Law and Municipal Law

Relationship between International Law and Municipal Law

  1. Voluntarism

의사주의자(Voluntarism)은 법은 주권이 포기라고 보기에 입법자(Law-makers/Address-ors)와 수범자(Address-ees)가 일치한다. 따라서 내(States)가 법을 만들고 내(States)가 법을 지킨다는 것으로 현재의 국제법을 더 현실적으로 바라보는 관점이라 할 수 있다. 왜냐하면 가입하지 않은 조약을 지키겠다는 국가는 없기 때문이다.

의사주의자의 중요한 원칙으로 “금지되지 않은 것은 모두 허용되는 것이다.”라는 말이 있는데 프랑스배와 터키배의 충돌인 로터스사건에서 국제법에선 조약이 없는 한 모든게 가능하다라는 PCIJ의 관점(Permissive System)으로 잘 나타났다. 반면 프랑스는 모든 것이 금지되어있고 조약으로 하나씩 봉인이 풀린다는 관점(Prohibitive System)을 주장했다. 이러한 의사주의는 법실증주의와 연결되는데 실증주의자는 국가의 중요성을 강조하며 국가들의 동의에 기반하여 국제법이 만들어졌다고 본다. Triepel이나 Strupp은 국제법과 국내법의 관계와 큰 차이를 국가의 우위를 기반으로 바라본다. 이러한 관점은 국제법과 국내법이 따로 존재하며 서로에게 영향을 주거나 우위를 점하는 것이 아니라는 이원론으로 이어진다. Triepel은 두 개의 원이 스칠 뿐 교차하지 않는다라고 말했다.

 

  1. Universalism

반대로 보편주의자(Universalism)는 법은 발견된다는 전제를 갖기 때문에 입법자와 수범자가 일치하지 않을 수 있다. 예컨대 사람은 소중하므로 인간이 사형제도를 통해 사람을 죽이면 안된다라는 관점이 나올 수 있다. 이러한 보편주의는 자연법론(Naturalism)으로 연결되는데 법은 신 혹은 자연이 만들거나 그곳에서 발견되는 것으로 인간 혹은 국가가 그러한 법을 지킨다는 내용으로 실증주의자(Positivist)에게는 자신이 서명하지 않은 것도 내게 의무가 있을 수 있다는 충격적인 결론이라 할 수 있다.

 

  1. Three theories on the relationship between international and municipal law

(1) 국내법우위론: 국제법보다 국내법이 우위 (18-19세기 독일 학자들 주장)

국내법을 대내적 국가법과 내외적 국가법으로 구분해서 국제법을 대외적 국가법의 합으로 간주. 이것에 따르면 결국 국제법도 국가가 자유롭게 바꿀 수 있으며 결국 ‘국제법’은 존재하지 않는 다는 결론으로 이어진다.

(2) 국제법우위론: 국제법과 국내법은 단일한 법체계 내에 있으며 국제법이 국내법보다 우위에 있다.

대표적으로 주장한 켈젠은 실증주의 헌법학자이지만 나치가 정상적인 법절차로 등장하여 2차대전을 일으키는 것을 보고 헌법을 제한할 수 있는 국제법을 생각하게 되었다. 국제법과 국제적 가치가 국내법과 국내적 가치에 직접적으로 적용되어 제어할 수 있는 것을 주장하였다. 무리한 주장일 수 있지만 켈젠은 합법적 절차를 거쳐서 탄생한 바이바른 체제가 2차대전을 초래했다는 반성으로 국제법의 역할을 강조하였다.

(3) 이원론: 국제법과 국내법은 다른 체계이다

대표적으로 트라펠이 주장했다. 국제법과 국내법은 주체, 연원, 성격이 근본적으로 다르므로 서로가 종속 혹은 우월의 관계에 있지 않다고 했다. 따라서 국가는 국제법을 지키지 않으면 국제적으로 책임을 지지만, 국내적으로는 국제법을 무시할 수 있다는 결론에 도달한다.

 

  1. Reality

(1) 현실적으로 국제법과 국내법의 관계를 보는 시각은 국가마다 다르다. 따라서 개별 국가를 살펴 보아야 한다. 예를 들어 어느 국가가 CIL에 대해서는 일원론을 취하지만 조약에 대해서는 이원론을 취할 수도 있다.

 

  1. 국제법이 바라보는 국내법

(1) 국내법은 국가행위를 나아가 CIL의 존재를 확인하는 하나의 증거가 될 수 있다. (PCIJ Certain German Interests in Polish Upper Silesia: “From the standpoint of International Law…municipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures…”)

또한 국제법은 어떤 개인의 국적을 확인하기 위해 국내법인 ‘국적법’을 바라볼 수 있다. 따라서 국제법은 국내법을 완전히 무시하지는 않는다.

(2) 허나 국제법에게 국내법은 그 자체로서는 법이 아닌 사실에 불과하다. 따라서 국제법 위반의 정당화를 위해 국내법의 준수를 언급하는등 국내법을 원용invoke하는 것은 금지되어 있다.

(3) 그러나 국제법이 국내법을 그 국가에서 무효화시킬 수 있는 것은 아니다.

(4) 반대로 국내법으로 불법이라 해서 반드시 국제법적으로 불법이 되는 것은 아니다. (ICJ Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy)

 

  1. 국내법이 바라보는 국제법

(1) 일원론(Monism)과 이원론(Dualism)

일원론적 국가는 국제법을 국내법의 일부로 자동적으로 수용하고 있다. 그래서 수용이론을 채택하고 있다고 말한다. 우리나라는 헌법6조으로 국제법을 국내법에 편입하고 있기에 수용이론을 채택했다고 본다. 반면 이원론적 국가는 국제법이 국내법에 직접적으로 적용되는 것을 허용하지 않는다. 그러므로 일정한 조치 혹은 변형이 주어져야 국내법에 적용될 수 있다고 본다. 따라서 이원론적 국가는 변형이론을 채택하고 있다고 말한다.

(2) 직접적용성과 직접효력 (일원론적 국가의 경우에만 의미 있는 용어이다)

직접적용성(Direct Applicability)이란 국제법이 자동적으로 국내법의 일부를 구성할 때를 의미한다. 그러나 일원론적 국가라도 무조건 직접효력을 인정하는 것은 아니다.

직접효력(Direct Effect)이란 국제법이 그 자체로 개인에게 국내재판소에서 원용될 수 있는 권리 또는 의무를 부여하는 것을 의미한다. 예를 들어 독일 국민이 독일재판소에서 유럽인권협약을 주장하는 것이다.

수평적 직접효력은 개인과 개인 사이에 인정되는 경우를 의미하며 수직적 직접효력은 개인이 국가에게 국제법상의 권리를 주장하는 것이며 전도된 수직적 직접효력은 반대로 국가가 개인에게 국제법상의 권리를 주장하는 것이다.

(3) 합치해석(Consistent Interpretation)

국제법과 충돌해도 관련 국내법을 적용해야 한다는 입법부의 명백한 의도가 없는 한, 국내법을 해석할 때 국제법에 합치하게 해석하는 기술이다.

따라서 합치해석은 국내법의 존재를 전제로 하지만 직접효력은 국내법이 없어도 가능하다. 또한 합치해석은 할 수 있다. 합치해석의 준거가 되는 것은 비준되지 않은 조약이거나 구속력 없는 국제문서일 수도 있다. 왜냐하면 국내재판소는 합치해석을 할 때 구속력이나 비준여부를 신경 쓰지 않기 때문이다.

(4) CIL (Customary International Law, 국제관습법)

[1] 영국: 기본적으로 수용이론. 다만 의회제정법이 충돌할 경우 의회주권 원칙에 따라 의회제정법이 우선. 다만 영국 사법부는 최대한 합치해석하려고 함. 또한 구속력 있는 선례와 충돌하는 경우 선례가 우선하지만 신CIL과 충돌하는 경우 신CIL이 우선한다. 그리고 사실문제(누가 외교관 혹은 어떤 국가의 영토가 어디까지인지)에 관해서는 외교부장관의 ‘사실확인서’를 존중하지만 법적 효과는 사법부가 결정한다.

[2] 미국: 기본적으로 수용이론. 다만 국제법이 규율하는 분야에 대해 입법, 행정, 사법부의 행위가 있으면 국내법이 우선.

[3] 독일: 더 진화된 수용이론(직접적용성은 물론 직접효력까지 가짐)

[4] 한국: 기본적으로 수용이론(헌법6조1항). 다만 전 조약에 대한 헌법의 우위를 고려할 때 헌법보다는 하위이며 관련 국제법이 규율하는 분야에 대해 입법, 행정, 사법부의 행위가 있으면 국내법이 우선.

(5) 조약

[1] 영국: 엄격한 이원론. 의회주권의 원칙상 의회(하원, 상원, 왕)의 입법권에는 제한이 없으므로 조약에 대해서는 ‘변형이론’을 채택하고 있다. 따라서 조약이 영국 국내법 질서에 들어오려면 ‘이행법률’이 제정되어야 함. 이런 엄격한 이원론을 완화하기 위하여 Ponsonby Rule이 있다-> 조약에 대해 (서명 후) 왕의 비준이 있기 전에 그 조약이 최소 21회기일 동안 상하 양원에 제출되어 의회가 조약 비준 전에 이행법률을 통과시키는 법.

또한 영국의 사법부는 조약과 의회제정법의 충돌을 피하기 위해 노력함. 이행법률이 아닌 의회제정법을 해석 시 관련 국제조약을 고려하기도 하고 이행법률을 해석할때 국제조약의 준비문서를 참조하기도 한다.

엄격한 이원론의 단점은 국내법 질서 편입에 시간이 많이 걸리고, 국제적 차원에서의 획일적인 규율에 실패할 가능성이 있으며, 조약 자체는 국내법의 눈에서는 무존재에 불과하고(영국 내에서는 국제조약이 아닌 국제조약의 이행법률을 적용하는 것이기에), 국제기구의 결정을 도입하는데 있어서 부적절한 것등이 있다.

[2] 독일: 완화된 이원론. 연방의 정치적 관계를 규율하거나 연방의 입법사항에 관계되는 조약에 대해 의회(하원 또는 상하 양원)은 ‘동의법률’을 만들어야 함. *이행법률은 단어등 수정이 가능하나 동의법률은 그대로 복사, 붙여넣기하는 것임. 이론적으로 동의법률도 헌재에 의해 위헌판결을 받을 수도 있음.

완화된 이원론의 장점으로는 동의법률은 조약 체결전에 만드는 사전 절차로 조약에 원문에 변형을 가하지 않기에 국제적으로 획일적인 규율이 가능하다. 또한 동의법률이 사전에 존재하기에 조약체결 후 즉시 국내법 질서에 들어오게 된다.

[3] 미국: 조약상의 규정을 자기집행적self-executing과 비자기집행적non-self-executing으로 나누어 전자는 수용이론, 후자는 변형이론으을 채택한다 (물론 직접 적용성/직접효력이 있는지는 조약기초자들의 의도를 파악해야 하므로 재판관이 결정한다.)

자기집행적 조약규정은 직접적용성만 의미할 수도 혹은 직접효력까지도 의미할 수 있다. 자기집행적 조약규정은 판례에 따르면 연방법률과 동등한 위치에 있으므로 후법우선의 법칙이 적용된다.

문제는 미국 대통령이 상원 도움없이 체결한 행정부협정(물론 국제법적으로 조약임)이 존재한다는 것인데 행정부협정의 경우 미국법상 어떤 위치에 있느냐에 관한 명확한 답은 없지만 대통령이 상하 양원의 도움없이 체결한 것이 아닌, 행정부-의회협정(상하 양원의 단순과반수+대통령)의 경우 조약과 동등한 위치에 있다고 간주될 수 있다.

[4] 대한민국: 헌법6조1항을 보면 수용이론을 택하는 것으로 보이며 직접적용성만을 말하는 것으로 보아야 한다. 헌법부칙 제5조에 의하면 조약은 헌법보다 하위에 위치하는데 강행규범에 해당하는 조약은 법률보다 상위, 헌법보다 하위이며, 국회의 비준동의가 있어야 하는 정식 조약은 법률과 동위, 국회의 비준동의없이 맺는 행정부 형정은 법률보다 하위이다.

헌법에서는 직접 적용성만 말하고 있지만 판결에서는 국가가 개인에 대해서 헌법이 아닌 국제 조약 예컨대 WTO로 처벌한 적이 있다. 즉 한국의 사법부는 전도된 수직적 직접효력을 인정하였다.

 

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OLYMPUS DIGITAL CAMERA“Courage and perseverance have a magical talisman, before which difficulties disappear and obstacles vanish into air.” – John Q. Adams

James DongA Shin is a co-founder of JS & Associates and a Senior Partner at Yonsei ULS. Please be advised: the comment, writing, or column does not represent the official position of YULS

[Law and Economics] Tort Law: Part III

A Series on Law and Economics: Part III

Economic Consequences of Making Errors and Hand Rule

James DongA Shin

Economic Effects of the Court’s Errors

In this part, we shall delve a little deeper into the analysis of tort law by looking at the economic consequences of the Court’s errors. When dealing with tort cases, the Court often makes mistakes regarding the amount of harm, hence damages to be paid by the injurer. Such mistakes directly impact the behavior of the injurer as he responses to differing extent of mistakes differently. Attached at the end of the article is an explanation of Hand Rule, a rule that comes in handy when the Court wants to determine the legal standard of care (x^) and whether the injurer was indeed negligent.

1. Strict Liability: Under strict liability discussion can be further divided into cases of random and systemic mistakes as the only variable that the Court could change is damages.

  1. Random mistakes (uncertainty): the Court could err high or low when determining damages d, but on average damages are assumed to be correct. Therefore, expected damages, Exp(d) is same as the h, the amount of harm. While d is random as we have designated it with Exp, the presence of random errors does not change the outcome because on average it is 100% of d. The injurer simply takes x* because doing so minimizes x Ci = Exp(pd)+x. Since the exact d is not known to the injurer, the equation basically becomes p Exp(d)+x=>ph+x=>x*. The injure would care only expected d. It doesn’t change anything, as the incentives are unchanged.
  1. Systematic mistakes (Errors): A situation when the Court sets the damages incorrectly on average, consistently too high or low. Strict liability causes the injurer precaution to respond in same direction as the Court makes the error. (If d turns out to be smaller than h, when the Court mistakes by ordering a under-compensation, the injurer would then minimize x Ci = pd + x. Originally d was h, but now that the Court is being lenient d=ah where 0<a<1, with 1 being very accurate and fair. Thus pah+x-> x<x*. Extremely and unfortunately when d is 0, there would no precaution for the injurer to do. This outcome is repeated when the authority (police, justice department, etc.) fails to hold injurers liable. Suppose the chance of not paying h (or phrased differently, not getting caught), the enforcement error a is 20%. Result would be the same as the case of the Court making systematic mistakes: x<x*.

————————————————————————————————————

2. Negligence: As the Court should determine not just the amount of damages but also care, discussion under negligence rule can be further divided into cases of making errors in setting damages and x^.

  1. Small errors (modest errors) in setting DAMAGES: there is no effect on x. Thus, x=x*. Injurer still minimizes its cost by taking x* precaution. So under negligence rule, whether the Court makes systematic or random mistakes in setting damages has no effects on injurer’s precaution. Still injurer takes x = x* so that he could get away from paying d. Compared with the outcome under strict liability above, negligence seems to have merit when the Court errs on determining the d, whether systematically or randomly.

Same outcome is found when the authority occasionally fails to hold injurers liable!

  1. Errors in setting X^: Unlike the case of the Court making errors in setting damages, injurer’s precaution responds exactly to the way the Court makes systematic errors in setting x^. Say d=h but x^ is not equal to x*, which is when the Court makes errors. Let’s first assume the Court is being moderate in terms of setting the standard/legal care, x^ = 0, a case of the Court being super lenient. Ci would then be just the standard precaution level (x=0), causing too many accidents and hence a high social costs. In the opposite of being very harsh Court (x^=2), the injurer would take x=2, which would be again inefficient.

So far has been the discussion when the Court is widely known to make mistakes in one direction or another. What happens if we have no idea as to the way the Court behaves? That is when the Court makes random errors in setting x^. The answer is that it leads to over-precaution on part of injurer, a socially inefficient outcome. Let’s say x1=2 with 10%, x*=3 with 80%, x2=4 with 10%. Thus, the average x^ would be 3. A natural consequence for the injurer is “I would rather be safe by taking x2 and get free from ever paying p(x)D!”


 

Hand Rule is a rule that helps determine the standard of care and injurer’s negligence. B (cost of precaution) < L (gravity of resulting injury) x P (probability of accident). Care should be taken if doing so is efficient: B< PL. (or W<Ph). Thus if you didn’t take it under such a situation, you’re found to be NEGLIGENT.

If the concept of marginality is considered, the equation might look a bit different while the essence is the same. If W, the marginal cost of precaution, is less than -p’(x)A = ∆Ph, injurer is held negligent.

 

FINAL TAKE AWAY

If the Court can assess damages better than care, strict liability is better.

If the Court can assess standard care better than damages, negligence is better.

If care is vague, the Court better errs on lenient side.

 

OLYMPUS DIGITAL CAMERA“Courage and perseverance have a magical talisman, before which difficulties disappear and obstacles vanish into air.” – John Q. Adams

James DongA Shin is a co-founder of JS & Associates and a Senior Partner at Yonsei ULS. Please be advised: the comment, writing, or column does not represent the official position of YULS

[Law and Economics] Tort Law: Part II

A Series on Law and Economics: Part II

Tort Liability Rules: Bilateral Precaution Case

James DongA Shin

Building Economic Model of Tort Liability Rule (Bilateral case only)

Bilateral precaution case in which both parties can exercise (thus pay) precaution/care shall be only examined. Unilateral precaution case is simpler as only injurers can influence the risks of the harm. The following explains the ingredients of the economic model of bilateral tort case.

X is injurer’s expenditure of precaution.
Y is victim’s expenditure of precaution.

P(x,y) is probability of the accident/harm when precaution is taken by each party.

h is harm that accident causes.

d is amount of damages compensation that injurer pays victim

Bilateral precaution: (x*,y*) minimizes social cost SC=p(x,y)h+x+y where Injurer (x) minimizes his cost Ci = p(x,y)d+x and Victim (y) minimizes his cost Cv = p(x,y)[h-d]+y.

The following lists six possible legal approaches that the Court could apply when deciding tort cases. Economic consequences of each approach are summarized so that the Court could deliver an economically efficient verdict.

 

  • No Liability

Injurer takes zero precaution at too high activity while Victim takes efficient precaution (y*) at efficient activity. Consequently, Injurer chooses x=0 and Victim chooses y=y* to minimize p(x,y)[h-d]+y. But in fact victim is paying y>y* because x*,y* is a unique pair.

Conclusion: Injurer takes too high activity while Victim takes efficient activity.

 

  • Strict Liability

Assume d=h (full compensation). Injurer’s incentives are efficient on the condition of the victim’s precaution. Therefore, Victim chooses y=0 and Injurer chooses x=x* to minimize p(x,y)h+x. So in fact injurer is paying x>x* because x*,y* is a unique pair.

Conclusion: Injurer takes efficient activity while Victim takes too high activity

 

  • Strict Liability with Defense of Contributory Negligence

D=h if y = or > y*. If not, D=0. Ci is ph+x if y meets or exceed y^. Ci = x if y<y^. Cv = y if y meets or exceeds y^. Cv = ph+y if y<y*. Thus, smart victim chooses y=y*. Then injurer chooses x* because (x*,y*) is created for an efficient equilibrium.

Conclusion: Injurer takes efficient activity while Victim takes too high activity

 

  • Negligence

Under Negligence rule, Injurer is liable if x<x^. Assume x^=x*. D=h if x<x*. D=0 if x meets or exceed x*. Thus Min x Ci=ph+x if x<x*. Ci=x if x meets or exceeds x*. Smart injurer chooses x=x*. Victim minimizes by meeting SC equation, which is choosing y =y* because Min y CV = y if x<x*. Ph+y if x meets or exceeds x*.

Conclusion: Injurer takes too high activity while Victim takes efficient activity.

 

  • Negligence with Defense of Contributory Negligence

Injurer is liable if x<x^ and y meets or exceeds y^. Otherwise Injurer is NOT held liable. Assume x^=x* and y^=y* and both will act efficiently.

Conclusion: Injurer takes too high activity while Victim takes efficient activity

 

  • Comparative Negligence

If both are negligent, they bear respective fraction of the harm. Otherwise the outcome is same as Negligence rule.

Conclusion: Injurer takes too high activity while Victim takes efficient activity

 

*Bold person (also known as the Residual bearer) internalizes the benefits of actions that reduces the p, and takes more precaution at less activity. Residual bearer thus has incentives for efficient activity while the other has incentives for inefficient activity level.

 

OLYMPUS DIGITAL CAMERA“Courage and perseverance have a magical talisman, before which difficulties disappear and obstacles vanish into air.” – John Q. Adams

James DongA Shin is a co-founder of JS & Associates and a Senior Partner at Yonsei ULS. Please be advised: the comment, writing, or column does not represent the official position of YULS

[Law and Economics] Tort Law: Part I

A Series on Law and Economics: Part I

Introduction to Tort Law

James DongA Shin

Why Tort Law is Needed

The purpose of tort law is to offer at the private level, remedy that the law of contracts and property cannot provide. People often harm others, thereby creating victims who initially incur various costs. In order to recover such costs, the victim has to sue any liable parties, yet no rules under the laws of contracts and property provide for an appropriate legal mechanism. Herein lies the beginning of the third body of private law, tort law.

Economic Interpretation of Tort Law

As the Coase Theorem shows, bargaining helps people to cooperate so as to solve the problem of unpleasant externalities that all kinds of human activities inadvertently generate. Yet the theorem presupposes relatively low transactions costs-a sum of costs that involve every stage of the bargaining between the private entities. If the transaction costs are relatively high, voluntary cooperation between the private entities can never come into being, let alone the remedy for the victim. To remedy this, tort law induces through the power of law the injurers to internalize the costs of harm by making them compensate the victim. The outcome would be a much-needed shifting of the costs from the victim to the injurer. How the shifting is actually performed is laid out in the liability rules, which would be discussed later in this paper.

In fact, once harm happens, social welfare does not change because it is the combination of gains/losses of the both parties. Yet tort law offers incentive so as not to create future harm. This deterrence effect is another economic function tort law plays.

Elements of Tort Liability Rule

Traditionally three elements are required for the plaintiff to recover from the harm under tort law.

  1. Harm, the victim/plaintiff must have suffered harm
  2. Causation, the injurer/defendant must have caused the harm
  3. Breach of duty of care, the injurer/defendant must have breached his duty of care in causing the harm

Whether to incorporate the third element or not creates two main rules under tort liability rule: Strict Liability and Negligence. Under the former rule the injurer must compensate for the harm he creates regardless of the existence of the third element. Yet the latter rule, negligence requires all three elements to be satisfied.

Strict liability: injurer must always pay for harm due to the accident he causes

Negligence: Injurer must pay only when he is found negligent, which can be known if x<x*=x^, where x* is the efficient level of care/precaution and x is actual level performed by the injurer. The legal standard x^ is assumed to set at x*.

 

 

OLYMPUS DIGITAL CAMERA“Courage and perseverance have a magical talisman, before which difficulties disappear and obstacles vanish into air.” – John Q. Adams

James DongA Shin is a co-founder of JS & Associates and a Senior Partner at Yonsei ULS. Please be advised: the comment, writing, or column does not represent the official position of YULS

2017 IMCC Guide to People, Places, and Acronyms

Amalea

Applicant State; a developing, newly industrialized island state. Fish accounts for roughly 40% of the protein content of the Amalean diet. Amalea’s fishing industry supplies the domestic market and is also responsible for exports generating more than 5% of the country’s USD 45 billion GDP. The industry directly employs over 250,000 people.

AEPA

Amalean Environmental Protection Agency

Amalean Trench

A deep sea trench in the Strait of Malachi dividing Amalea’s continental shelf from Ritania’

1986 CFPA

Amalea’s Coastal Fisheries Act which applied inter alia to the 200 nautical mile EEZ of Amalea as proclaimed in 13 June 1984. This act established a licensing scheme for all fishing activities, granting authority to the Amalean Environmental Protection Agency (AEPA) to regulate any activities that posed risks to fish stocks.

1993 CFPA as Amended

Within the Strait of Malachi, the Act applied to “waters within Amalea’s uncontested EEZ and waters within the Malachi Gap area over which Amalea has jurisdiction, as set out in the Malachi Gap Treaty of 1992.” The Act also requires environmental impact assessments (EIA) “for all activities undertaken within the Strait of Malachi which could adversely affect Amalea’s sovereign rights under international law.”

Dorian Sea

Body of water at the North end of the Strait of Malachi

Dorian Wrasse

A non-migratory reef fish that lives in shallow waters in and around the area of the Sirius Plateau, a valuable and culturally important dish in Amalea. Dorian wrasse (Labridae doriensis), a brightly coloured marine fish, is known to breed only in a small area of the Strait of Malachi.

EEZ

Exclusive Economic Zone.

EIA

Environmental Impact Assessment. The EIA submitted by EIGP and approved by the Ritanian Department of Resource Management regarding the Excelsior Island Project did not address the potential impacts of the dredging program on the waters of the Malachi Gap, or on fish species living there.

EIGP

Excelsior Island Gas & Power Limited, a Ritanian company wholly owned by Esmeralda Kali

Erebus Gas Field

Significant reserves of petroleum and natural gas discovered by Ritanian geologists in the 1940s beneath the subbed in the Strait of Malachi.

Esmeralda Kali

A Ritanian billionare who announced her intention to finance the construction of Excelsior Island on the Sirius Plateau through EIGP, her wholly owned project company.

Excelsior Island

A donut-shaped artificial island constructed on the Sirius Plateau within Ritania’s EEZ to serve as a LNG processing plant and wind farm. The two billion cubic meters of sand and rock needed for the construction of the island was dredged entirely from areas within the Malachi Gap.

Excelsior Island Gas & Power Limited (EIGP)

Ritanian billionaire Esmeralda Kali’s wholly owned project company that constructed and planned to use the Excelsior Island as a facility for the production of seven million metric tons per annum of liquefied natural gas (LNG) from the Erebus field.

1958 Geneva Convention on Territorial Sea and Contiguous Zone

Amalea and Ritania signed in 1958. Ritania ratified in February 1961. Amalea ratified in September 1962. The Convention entered into effect in 10 September 1964.

1958 Geneva Convention on the Continental Shelf

Amalea and Ritania signed in 1958. Ritania ratified in February 1961. Amalea ratified in September 1962. The Convention entered into effect in 10 June 1964.

1958 Geneva Convention on the High Seas

Amalea and Ritania signed in 1958. Ritania ratified in February 1961. Amalea ratified in September 1962. The Convention entered into effect in 30 September 1962.

1958 Geneva Convention on Fishing and Conservation of Living Resources of the High Seas

Amalea and Ritania signed in 1958. Ritania ratified in February 1961. Amalea ratified in September 1962. The Convention entered into effect in 20 March 1966.

ICJ

The International Court of Justice

ICJ Provisional Measure

August 2009, Amalea sought an order from the ICJ, requiring Ritania to halt the project. The Court concluded by eight votes to seven that “the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.”

ILSA

The International League for Sustainable Aquaculture is an international non-governmental organization whose members include prominent marine scientists from around the world.

LNG

Liquefied Natural Gas

Malachi Gap

An area in the Strait of Malachi where Amalea and Ritanian EEZ claims overlap; governed by the Malachi Gap Treaty

1992 Malachi Gap Treaty

30 March 1992, through a treaty, Amalea and Ritania agreed to apportion their respective rights in the Malachi Gap. Article 12 of the Malachi Gap Treaty specifies the delimitation of jurisdiction between the two Parties. Amalea and Ritania ratified in January 1993.

Occitan Ocean

Body of water at the South end of the Strait of Malachi

RDRM

Ritanian Department of Resource Management

Ritania

A developed, industrialized peninsular state. Ritania, in contrast to Amalea, has never developed a commercially significant fishing industry and its people do not consume significant quantities of seafood. Ritanian fishing in the Strait of Malachi is limited to sedentary fish species found within five nautical miles of the coastline.

Ritanian Ambassador

Sirius Plateau

An area of the continental crust in the Malachi Gap approximately 40 nautical miles from the Ritanian coast and approximately 180 nautical miles from the coast of Amalea. It is geomorphologically and geologically related to the Ritanian landmass, where the waters on average less than 20 meters deep.

Strait of Malachi

A channel connecting the Dorian Sea (to the North) and the Occitan Ocean (to the South) ranging from 217 nautical miles (at its narrowest) to 386 nautical miles (at its widest). The deepest point of this strait within the Amalean Trench reaches a depth of over 5,000 meters. The Strait contains abundant fish and shellfish stocks.

1982 UNCLOS

United Nations Convention on the Law of the Sea. Ritania signed and ratified in April 1983. Amalea signed in June 1983, but has never ratified it. The Convention entered into force in 16 November 1994.

2009 Underwater Landslide

On 10 December 2009, as a direct result of the dredging, a significant underwater landslide caused an over-steepening of the slope in a geologically weak part of the Sirius Plateau. Extremely high turbidity levels persisted for several weeks and a dissociation of gas hydrates at the foot of the Sirius Plateau resulted in a higher concentration of several dissolved gases, including carbon dioxide and methane, in shallow waters throughout the Sirius Plateau.

 

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[Opinion] Galluci’s Dangerous Fairy Tale

Seungmin P. Jung

Incremental Negotiations and Deterrence to Contain North Korean Nuclear Hostilities over Preventive War and Sanctions

16 October 2017, President Robert L. Galluci of the John D. and Catherine T. MacArthur Foundation was invited as the main lecturer for the William J. Perry Lecture Series at Yonsei University to speak on “Dealing with North Korea: Defence, Deterrence, Diplomacy and Alliance.” Galluci as “Ambassador-at-Large and Special Envoy for the U.S. Department of State, dealt with the threats posed by the proliferation of ballistic missiles and weapons of mass destruction. He was chief U.S. negotiator during the North Korean nuclear crisis in 1994, and served as Assistant Secretary of State for Political Military Affairs and as Deputy Executive Chairman of the UN Special Commission overseeing the disarmament of Iraq following the first Gulf War.”

In his lecture, Galluci stated that initiating “incremental negotiations” is the solution to the North Korean nuclear crisis and discussions on preventive war in Washington is premature, “absent reasonable assessment to support it.” He claimed that the credibility of the threat posed by the recent North Korean nuclear and missile tests to U.S. has largely been exaggerated in its presentation as a “crisis” in that (i) the rise of another nuclear state – as was the case of Soviet Union and China – is not a new or foreign source of threat and (ii) blackmailing, appeasement, and containment are all available alternative foreign policies – not just sanctions and preventive war. In conclusion, U.S. needs to open itself to “a new vulnerability” of neighboring another nuclear state and focus on containment rather than resort to aggression or hostilities. Ex-Ambassador cited the following reasons to support his statement.

  • Despite North Korea’s acquisition of nuclear capabilities, it’s asymmetrical balance in military arsenal and force in comparison to that of U.S. is astronomical. U.S. still can and should negotiate from a position of strength.
  • North Korea was not the only Party that “cheated” on the Agreed Framework signed between U.S. and DPRK on 21 October of 1994, the conclusion of which Mr. Galluci as Ambassador had contributed to. U.S. also had failed to act in consistency.
  • North Korean regime is not suicidal: there is little to no chance of an outbreak of nuclear war for U.S. has far superior second striking power and military force operable in foreign soil. A nuclear strike would result in although not immediate, ultimate collapse of Kim’s regime.
  • As it has not been so during the Cold War, the credibility of U.S. extension of nuclear deterrence/umbrella is not undermined by North Korea’s newly acquired capabilities. Major cities in South Korea and Japan are not truly taken “as hostage.”
  • Sanctions have little effect in delaying or stunting North Korea’s nuclear capabilities in that it has already acquired the resources required for building its arsenal and is thoroughly skilled via experience in circumvention of such sanctions.

Therefore, the initiation of incremental negotiations ultimately leading to normalized relations with a nuclear North Korea is the proper course of response; not preventive war or increased sanctions. Notice how Mr. Galluci interestingly takes for granted North Korea’s nuclear state status without objection. He argued that U.S. should open itself up to a “new vulnerability” rather than consider options of aggression. 

Trump meme

Granted, the results of war are always catastrophic and inhumane, therefore, unnecessary aggression should be avoided whenever possible. However, at what cost? If the exceptional effectiveness in human destruction of nuclear weaponry is the reason we must approach this “crisis” with caution, why risk the rise of another state that openly flaunts to use this force? In my opinion, here are two of the more pertinent points Galluci failed to clarify in his lecture, thereby making his optimistic portrait of future U.S.-DPRK relations a dangerous fairy tale.

What does a Normalized Relations between U.S. and DPRK (one attractive to DPRK and acceptable to U.S.) that can transcend or be maintained over leadership changes look like? Does it exist?

Ex-Ambassador admitted that he himself does not know what the end game of North Korean regime is in acquiring nuclear weaponry. This is a quizzical comment being offered from an expert well-known for his capabilities to think from DPRK leadership’s perspective. However, since DPRK is claiming to want normalized relations with U.S., Galluci argues that this should be offered at the negotiation table. However, it is my contention that there is no form of normalized relations between the two states that is attractive to DPRK and acceptable to U.S. that can transcend or be maintained over leadership changes. Galluci is wrong in claiming that permitting a nuclear North Korea is merely “a new vulnerability”: it is in fact opening doors to numerous potential threats and U.S. has a lot more to lose in the grand schematic. 

  • North Korea will not surrender it’s nuclear weaponry for it has become clear that the political, economic, and military independence of its regime cannot be ensured in any other way.

North Korea has watched other states such as South Africa, former members of the Soviet Union, and Iran suffer the consequences of forfeiting their nuclear capabilities. It has also watched changing leadership in the U.S. invade and restructure former allies based on fabricated evidence and propaganda in the Middle East. This was indeed a demonstration of military might, but also U.S. versatility in foreign relations when her interests are seemingly at stake. Need we mention US’s non-membership to the International Criminal Court (ICC) and absence at climate change forums? President Trump’s threat to terminate the Iran Deal is another paramount example. From the North Korean leadership’s perspective, U.S. is incapable of providing assurance that a normalized relationship that ensures the continuation of Kim’s regime; in contrast, the acquisition of nuclear weapons technology most certainly will. Normalized relations cannot be traded for North Korea’s nuclear weapons program. 

  • Whether Normalized Relations is truly Kim’s End Game is highly questionable.

There are credible scenarios in which normalized relations with U.S. can be in fact unattractive for the continuation of  Kim’s regime. Politics and Governance are two separate beasts. As several succeeding U.S. Presidential candidates during their campaign have promised to conduct extensive investigations into the former President’s illegal acts committed in office, but completely abandoned this position once they have been sworn in, North Korean leadership also sells one story to its own people and another to the international community. One principle justification provided to North Koreans for the succession of oppressive military dictatorship by Kim’s family is the continuing conflict between itself and the evil foreign superpower, U.S. Despite it’s glaring discrepancy from reality, North Koreans are being sold the propaganda that South Korea has been illegally occupied and controlled by foreigners whom have enslaved Koreans waiting for their rescue from continued suffering. The ongoing confrontation against the U.S. is the pillar that holds Kim Jeong Eun’s regime in the eyes of the public as legitimate. Increased sanctions by U.S. are the main culprit for North Korea’s stunted economic growth and therefore, military expansion is necessary to achieve independence and avoid colonization as the South has been succumbed to. The continuation of conflict and intermittent tales of victory against U.S. and her puppet state South Korea serves as fuel of national pride and evidence of success for Kim’s governance. Currently, the nuclear weapons development serves this role. If North Korea normalizes relations with U.S.,where is the legitimacy of mass imprisonment of political rivals and public executions? In the people’s eyes, where is the justification for the continuing suffering and tragedies other than poor governance by Kim? There is a strategic vantage for Kim’s reign in U.S. remaining as an adversary. As are immigrants to Trump, U.S. is to Kim.

  • U.S. cannot have normalized relations with North Korea that ensures the survival of it’s current regime due to the fact (i) of gross human rights violations within North Korea and (ii) that North Korea holds no economic, political, or military significance as an ally to U.S.

It is true that U.S. has tolerated many corrupt and dictator-run regimes in the past, however, all had one characteristic in common: that either they had a strategic significance as an ally to U.S. or had marginal influence. Ironically, North Korea offers no strategic advantage to U.S. as a non-nuclear state, and as a nuclear state, it poses a grave threat to her security and dominance in the Pacific region. North Korea’s willingness to seek political, economic, and military independence ensures us one thing about it’s foreign policy: it will oscillate between superpowers and not completely lean towards one as did South Korea or Japan. North Korea will never truly become an ally of U.S. against China and Russia in the Pacific Theater of War. It will remind China of its role as a buffer zone to American infiltration in the region whenever U.S. bars its teeth and gain aid to sustain its survival. As mentioned above, DPRK has come to master the art of exploiting this situation.

This frustrating cycle of diplomatic nightmare may indeed change drastically if U.S. goes further to provide aid to North Korea as she did to the European states post World War II to ensure their economic prosperity. U.S. This arrangement can be sold to the North Korean public as a “victory” from Kim’s point of view and will definitely ensure the continuation of his reign. However, American citizens are unlikely to tolerate this form of a normalized relations with North Korea should it not abandon it’s human rights practices. This is not an attractive option for Kim. This is the very U.S. influence the ruling class of North Korea feels the need to be insulated from to preserve their elite status.

Non-withstanding the fact that such an arrangement is disgraceful, without having solved the human rights violations issue, any form of normalized relations between U.S. and DPRK is likely to fall hostage every time to political campaigns of candidates contesting the government’s policy. If Galluci is proposing such an arrangement and if it becomes a reality, it will be an unprecedented event in U.S. history of foreign relations.

In any case, as was the case of the 1994 Agreed Framework, a non-binding temporary agreement that cannot survive change of political leaderships is hardly a normalized relationship beneficial to Kim’s regime.

  • Moreover, having to tolerate North Korea’s Nuclear State status not due to it’s strategic importance to U.S., but due to U.S. leadership’s failure to prevent it by taking timely necessary action is not an acceptable scenario for neither Americans nor South Koreans

U.S. does not negotiate with terrorists; or so it has been proclaimed. North Korea in its population, size of territory, resources, and allies are in no meaningful manner comparable to China or Soviet Russia when U.S. decided to not take action against their nuclear weapons development and resorted to containment. How is this not an unforgivable dent on “American Superiority”, a propaganda sold to the U.S. citizens to heighten national pride yet also a necessary impression the rest of the world must retain to ensure U.S. interests abroad?

Moreover, how is living under the direct threat of North Korean nuclear strike due to U.S. leadership’s lack of decisiveness tolerable to Koreans and even Japanese citizens whom consider U.S. as their trusted ally? Indeed, there will be little to no chance of North Korea utilizing its nuclear arsenal against U.S. territory, but there consistently has been military aggression and exchange of fire between North and South Korea throughout the years. Discussions of procuring independent nuclear weapons technology in South Korea is direct evidence of the diminishing credibility of extended deterrent by U.S. The Japanese Prime Minister Shinzo Abe’s proposal to revise the pacifist Article 9 so that the Japanese Self Defence Forces (JSDF) may operate in overseas assaults and preemptive strikes is in line with this increased sense of threat in spite of U.S. assurance. It is Galluci’s argument that is unsubstantiated when it comes to the credibility of U.S. extension of deterrence.

Are all wars to be absolutely avoided at all cost? or are some wars unavoidable and a closing time window to take action exist?

Why permit the nuclear state status of an impoverished hostile state that threatens to use its capabilities when there is an option to prevent it? Did U.S. and U.K. not make a similar mistake of delaying intervention and engaging in use of force in World War II when Hitler’s Nazi Germany was making false promises of peace while preparing for war in secrecy? Negotiations and agreements were a hoax to buy much needed time. It seems that North Korea has been utilizing such strategy to advance this far, yet, Galluci is unabashed in proposing to continue negotiations. Results of these negotiations are unclear except for one fact: North Korea will be guaranteed more time.

Even if we accept the premise that due to the fact that the North Korean regime is not suicidal and therefore, will not engage in war, how does succumbing to the threats of Kim Jong Eun not signal to the rest of the world that nuclear weapons development is indeed a viable option against U.S. intervention? How will U.S. ensure the prevention of leakage of nuclear technology from an impoverished North Korea without providing economic aid? Is the proliferation of nuclear weaponry not credible enough threat to engage in war? Following this line of logic, is there ever a just cause for war or should delayed wars be all considered “good”? is there a difference between delayed wars and prevention?  Is not the “exceptional effectiveness in human destruction of nuclear weaponry” the very reason why we must intervene now and send a message of zero tolerance when it comes to nuclear weapons?

 

Conclusion :

Of course an act of war in the Korean peninsula must not be an unilateral one made by the U.S. absent the consent of South Korean government. This is the only way to prevent the unfortunate categorization of South Koreans as “collateral damage.” In any case, having failed to clarify on the two issues above, Galluci’s proposal of continued negotiations in my opinion fits nicely into the description of a “dangerous fairy tale.”

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“Injustice Anywhere is a Threat to Justice Everywhere” – King, Jr.

Joining in 2010, Seungmin is a Founding Member of and Senior Partner at Yonsei ULS. Please be advised: the comment, writing, or column does not represent  the official position of YULS.

 

Edited by Yonsei ULS Law Review

Gabin

“Quit playing Logic Games with my heart”

Having served as the seventh President, Gabin is currently a Senior Partner of the Advisory Board of YULS.

[Law and Economics] Legal and Economic Analysis of Accidents Involving Autonomous or Self-driving Technologies

The First Autopilot Fatality: Which Rule to Adopt?

Legal and Economic Analysis of Accidents Involving Autonomous or Self-driving Technologies


James DongA Shin

With the very first known fatality involving the self-driving or autonomous car, the legal and technological circles have been debating whether Tesla, the manufacturer of the car in the accident, should be held responsible for the accident. The historic accident occurred when Tesla’s model S and its driver failed to notice a trailer turning left across the lanes of U.S. Highway 27 in Florida, causing the death of the driver, Joshua Brown.

screenshot-www.tesla.com-https-www.tesla.com-models-2017-10-15-21-05-04-401

Tesla’s Model S offers “Autopilot”, one of the most advanced autonomous driving features available in the auto industry. (Screenshot from http://www.tesla.com/models)

tesla florida

The historic crash occurred on May 7, 2016 in Williston, Florida. (Image Credit: James DongA Shin / Satellite Image: Google Maps)

This paper will attempt to analyze the economic impact of holding parties liable in accidents that involve the autonomous or self-driving vehicles. Being an autonomous or self-driving vehicle in this paper implies that a car is capable of driving itself without the assistance of or the reliance on the driver; this is the prime feature that distinguishes it from all other rudimentary driving assist features such as Cruise Control, Lane Keeping Assist System (LKAS) or Blind Spot Information System (BLIS). Such difference is also what makes determining the liability more challenging for the Court.

Although there are established laws in place, since they have not yet fully addressed this newly developed technology in Court, the analysis will attempt to analyze the economic consequences of applying different liability rules to possible scenarios of auto accidents that involve autonomous or self-driving cars. Thus, the analysis could be likened to be providing an omniscient point of view to a judge with an economist’s mind, helping him or her to readily deliver a verdict for potential disputes between the manufacturer and the driver.

For the simplicity, let us assume that there are only two parties involved: car manufacturer and the driver. Based on bilateral precaution in which both parties are required to take precaution for efficiency to take place, the analysis is limited to three major legal liability theories: no liability, strict liability, and negligence. Although the order of playing the “game” does change the outcome of the individual payoff chart, we eliminated such uncertainty by fixing the driver’s attention level according to given possible scenario. That would be possible by a complete enumeration of possible scenarios: 1. Autonomous or self-driving technology features are operating while the driver seated is paying lots of attention (Features on, Attention high). 2. Autonomous or self-driving technology features are operating while the driver seated is not paying much attention (Features on, Attention low). 3. Autonomous or self-driving technology features are off regardless of the driver’s attention level (Features off, Attention high/low). 4. Autonomous or self-driving technology features are on with no driver seated or the driver seated is sleeping, making the presence of the driver meaningless (Features on, Attention 0).

First, we can comfortably exclude the third scenario in our discussion since such case is no different from the common auto accidents that involve non-autonomous, conventional vehicles that have dominated the auto market so far.

We are then left with the remaining three scenarios to analyze the impact of applying each of the three liability rules (No liability, Strict liability, and Negligence). We now know that driver’s attention level is three-tier: {“High” (of Scenario 1), “Low” (of Scenario 2) and “0” (of Scenario 4)}. To facilitate an easier understanding of effects of different rules, (natural) numbers instead of variables are used for the basic setups and the hypothetical scenarios. The cost of paying different levels of attention is thus set at {$15, $5, $0} respectively. Each scenario will be analyzed with different levels of attention of the manufacturer. The attention would mean comprehensive, holistic efforts of building self-driving technology as perfect and safe as possible. By default, reaching a degree of perfection (say, degree that guarantees no accident) is impossible. Therefore, the highest degree possible is named “Godlike”, with an exorbitant price of $50 per vehicle. “Elite” and “Normal” are remaining levels with the cost of $15 and $5 respectively. Cost of accident in case of an accident is set at h = $1,000,000.

With these fundamental numbers, we can create the following basic payoffs charts before “playing” the games. A list of different possibilities of a fatal accident is also given; it is the highest (1/10,000) when the driver pays no attention at all (or when the driver’s in fact absent) and the manufacturer bothers to pay to develop any higher level of technology (Normal). It is the lowest (1/100,000) when “Godlike” technology is met with “High” level of driver’s attention. In this paper, an accident always refers to a deadly accident that causes h.

Table 1: Possibility of a deadly accident involving such cars Driver’s attention level
High Low 0
Manufacturer’s self-driving Technology Level Godlike 1/100,000 1/80,000 1/50,000
Elite 1/80,000 1/50,000 1/20,000
Normal 1/40,000 1/20,000 1/10,000
Table 2: Expected harm or cost of accident in case of an accident Driver’s attention level
High Low 0
Manufacturer’s self-driving Technology Level Godlike $10 $12.5 $20
Elite $12.5 $20 $50
Normal $25 $50 $100
Table 3: Expected total social cost in case of an accident Driver’s attention level
High ($15) Low ($5) 0 ($0)
Manufacturer’s self-driving Technology Level Godlike ($50) $75 $67.5 $70
Elite ($15) $42.5 $40 $65
Normal ($5) $45 $60 $105

Given the basics, we know the socially efficient outcome is (Elite, Low) with total expected social cost of $40. Any deviation of behavior by any party from (Elite, Low) will bring an inefficient outcome. Let us see what outcome each rule induces under each scenario. For simplicity’s sake, Dollar signs ($) are omitted.

The first scenario would be (Features on, Attention high), in which a driver is deemed to be paying high level of attention. The manufacturer would behave in consideration of such factor under three rules and the equilibrium would result in following ways:

Table 4: Expected payoffs (costs) in case of an accident: No Liability Driver’s attention level: High
High Low 0
Manufacturer’s self-driving Technology Level Godlike (50, 25) (50, 17.5) (50, 20)
Elite (15, 27.5) (15, 25) (15, 50)
Normal (5, 40) (5, 55) (5, 100)
Table 5: Expected payoffs (costs) in case of an accident: Strict Liability Driver’s attention level: High
High Low 0
Manufacturer’s self-driving Technology Level Godlike (60, 15) (62.5, 5) (70, 0)
Elite (27.5, 15) (35, 5) (65, 0)
Normal (30, 15) (55, 5) (105, 0)
Table 6: Expected payoffs in case of an accident: Negligence (harsh court, x^=Godlike) Driver’s attention level: High
High Low 0
Manufacturer’s self-driving Technology Level Godlike (50, 25) (50, 17.5) (50, 20)
Elite (27.5, 15) (35, 5) (65, 0)
Normal (30, 15) (55, 5) (105, 0)
Table 7: Expected payoffs in case of an accident: Negligence (lenient court, x^=Normal) Drivers attention level: High
High Low 0
Manufacturer’s self-driving Technology Level Godlike (50, 25) (50, 17.5) (50, 20)
Elite (15, 27.5) (15, 25) (15, 50)
Normal (5, 40) (5, 55) (5, 100)

As equilibria show, none of the rules succeeded in achieving efficiency because the efficiency requires driver’s attention to be low. Yet in this scenario, best possible outcome is achieved by strict liability and negligence (harsh x^) rule with relatively low social cost of 42.5. We know that for efficiency higher driver’s attention level is not justified investment; it would be safer (1/50000 to 1/80000) but economic efficiency suffers because the very purpose of owning a self-driving car is increased convenience on part of the driver.

The second scenario would be (Features on, Attention low), in which a driver is deemed to be paying low degree of attention, say rocking to the music being played inside the car or doing other tasks and paying minimal attention to the driving. The resulting equilibrium would be tabulated in following ways:

Table 8: Expected payoffs (costs) in case of an accident: No Liability Drivers attention level: Low
High Low 0
Manufacturer’s self-driving Technology Level Godlike (50, 25) (50, 17.5) (50, 20)
Elite (15, 27.5) (15, 25) (15, 50)
Normal (5, 40) (5, 55) (5, 100)
Table 9: Expected payoffs (costs) in case of an accident: Strict Liability Drivers attention level: Low
High Low 0
Manufacturer’s self-driving Technology Level Godlike (60, 15) (62.5, 5) (70, 0)
Elite (27.5, 15) (35, 5) (65, 0)
Normal (30, 15) (55, 5) (105, 0)
Table 10: Expected payoffs in case of an accident: Negligence (harsh court, x^=Godlike) Drivers attention level: Low
High Low 0
Manufacturer’s self-driving Technology Level Godlike (50, 25) (50, 17.5) (50, 20)
Elite (27.5, 15) (35, 5) (65, 0)
Normal (30, 15) (55, 5) (105, 0)
Table 11: Expected payoffs in case of an accident: Negligence (lenient court, x^=Normal) Drivers attention level: Low
High Low 0
Manufacturer’s self-driving Technology Level Godlike (50, 25) (50, 17.5) (50, 20)
Elite (15, 27.5) (15, 25) (15, 50)
Normal (5, 40) (5, 55) (5, 100)

It is evident that paying low attention does not guarantee an automatic efficiency under any liability rule. According to equilibria above, we again see manufacturer behaving same manner under any given liability rule. Here the two rules were successful in giving correct incentive to the manufacturer: strict liability and negligence (harsh course), both with social costs of 40. As with the two best possible outcomes of the previous scenario (27.5, 15), the manufacturer is bearing the burden of accident while the driver is shouldering her (lowered) cost of attention under the efficient outcomes (35, 5).

Other rules failed to induce efficiency because under No liability and Negligence (lenient court), manufacturer is not incentivized enough to take any higher degree of attention than “Normal.” Another interesting thing to notice is that under two efficient outcomes, the manufacturer is settling for “Elite” level, because it is more economically beneficial for manufacturer to accept an increased chance of accident than to enjoy lower chance at the expense of huge expense of “Godlike” level. That is “Godlike” level is not justified investment for the manufacturer, even when the Court is harsh.

The last scenario is (Features off, Attention 0), in which a driver’s influence on the self-driving vehicle is 0. This happens when the driver is absent (unmanned vehicle) or the driver is seated but asleep. The resulting equilibrium is shown below:

Table 12: Expected payoffs in case of an accident: No Liability Drivers attention level: 0
High Low 0
Manufacturer’s self-driving Technology Level Godlike (50, 25) (50, 17.5) (50, 20)
Elite (15, 27.5) (15, 25) (15, 50)
Normal (5, 40) (5, 55) (5, 100)
Table 13: Expected payoffs in case of an accident: Strict Liability Drivers attention level: 0
High Low 0
Manufacturer’s self-driving Technology Level Godlike (60, 15) (62.5, 5) (70, 0)
Elite (27.5, 15) (35, 5) (65, 0)
Normal (30, 15) (55, 5) (105, 0)
Table 14: Expected payoffs in case of an accident: Negligence (harsh court, x^=Godlike) Drivers attention level: 0
High Low 0
Manufacturer’s self-driving Technology Level Godlike (50, 25) (50, 17.5) (50, 20)
Elite (27.5, 15) (35, 5) (65, 0)
Normal (30, 15) (55, 5) (105, 0)
Table 15: Expected payoffs in case of an accident: Negligence (lenient court, x^=Normal) Drivers attention level: 0
High Low 0
Manufacturer’s self-driving Technology Level Godlike (50, 25) (50, 17.5) (50, 20)
Elite (15, 27.5) (15, 25) (15, 50)
Normal (5, 40) (5, 55) (5, 100)

As seen in the first scenario, efficiency is achieved under none of the rules because efficiency requires driver’s attention to be “Low”; in this case driver’s paying inefficient amount of attention, which is “0”. Yet we still find out which rule performs the best among the four and it turns out that strict liability produces correct amount of incentive for manufacturer to choose “Elite” level with relatively low social cost of 65. Strict liability does so while no liability rule and negligence (lenient court) causes manufacturer to choose cheapest option “Normal”, and negligence (harsh court) causes “Godlike.” Unlike previously examined scenarios, negligence (harsh court, x^=Godlike) does induce “Godlike” because cost of shouldering increased chances of accident becomes so expensive in this scenario as driver is paying no attention and thus creating higher chances of accident in general.

Upon the completion of an exhaustive analysis of each scenario, we naturally find strict liability to be superior to other rules. In last scenario, we would make sure to avoid adopting no negligence rule because social cost is prohibitively expensive; no one is truly held liable for the economic consequences of highest chance of deadly accident. Adopting negligence rule is a risky bet since there is no assurance that the Court would behave harsh towards the manufacturer. Such concern is found in previous two scenarios where uncertainty of the Court behavior would cause the manufacturer to deviate from the optimal behavior. Even if there is 100% assurance that it would choose to be harsh, strict liability still prevails because strict liability is the best performer across the different liability rules.

With other liability rules (Strict liability/Negligence with a defense of contributory negligence, and comparative negligence) left unexamined and other factors (i.e. activity levels, varying sales in response to manufacturer’s precaution) not factored into, it still seems like strict liability would perform the best, at least in this fictitious case in which efficiency is achieved when manufacturer settles for “Elite” level and the driver chooses to pay “Low” level of attention, hence balancing the benefit of owning autonomous cars and the moderate chance of accident.

OLYMPUS DIGITAL CAMERA“Courage and perseverance have a magical talisman, before which difficulties disappear and obstacles vanish into air.” – John Q. Adams

James DongA Shin is a co-founder of JS & Associates and a Senior Partner at Yonsei ULS. Please be advised: the comment, writing, or column does not represent the official position of YULS

Logic Games: A Dissection

[Updated] Powerscore 6 Logic Games Question Types

[Updated] Cambridge and Powerscore Conversion Table applied

  • Linear Games / Simple Ordering
  • Advanced Linear Games / Complex Ordering
  • Grouping Games / In & Out Grouping + Grouping (Distribution)
  • Grouping/Linear Combination Games / Determined Assignment
  • Pure Sequencing Games / Relative Ordering
  • The Forgotten Few
  • Miscellaneous

 

[ #003 ]     [ Back to Journal Entries ]     [ #005 ]

Back to 2017 LSAT Study Group Page ]

 

Gabin

“Quit playing Logic Games with my heart”

Having served as the seventh President, Gabin is currently a Senior Partner of the Advisory Board of YULS.

 

img_1852

“Injustice Anywhere is a Threat to Justice Everywhere” – King, Jr.

Joining in 2010, Seungmin is a Founding Member of and Senior Partner at Yonsei ULS. Please be advised: the comment, writing, or column does not represent  the official position of YULS.

#03 ULS Fall Session 2017

Session #03 @ Theology Hall Rm #B103

1830 – 2100 HRS

25 SEP 2017 (月)

SUN, SEULBIN, HYEJI, RHAUN, GABIN, DANIEL, JAMES, AND SEUNGMIN

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Agendas

  • International Environmental Law, Malcolm N. Shaw
  • International Environmental Law, Pierre-Marie Dupuy

Discussions

Q) Definition and Application of Due Diligence

“The appropriate standard for the conduct of states [under IEL] is… the Test of Due Diligence… States in general are not automatically liable for damage caused irrespective of all other factors… This Test undoubtedly imports an element of flexibility into the equation and must be tested in the light of the circumstances of the case in question” (Shaw, 621).

 

Q) Ritania’s Argumentation Against Amalea regarding trans-boundary Environmental Impact Assessment (EIA)

I. There is no obligation under general international law nor Malachi Gap Treaty (MGT) that requires Ritania to conduct an trans-boundary EIA.

II. Even if there were such an obligation, Ritania had conducted a trans-boundary EIA. In the Pulp Mills case, the Court held that ‘it is for each State to determine in its domestic legislation or in the authorization process of the project, the specific content of the environmental impact assessment required in each case.” Ritania’s action was in accordance to this reaffirmed ruling by the ICJ that the content of the customary rule is set by the domestic law of States. 

 

Q) 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations

  • United Nations General Assembly Resolution 2625 (XXV)
  • Not Law per se

Reading Assignment [ 253 HRS ]

  • 10 Cases for ULS IMCC 2017 @ HERE
  • Martin Luther King Jr., Letters from Birmingham Jail (Advanced)

Next Session : 06 OCT 2017 (金) 1300 HRS @ Shinchon Station Study Cafe

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