Friday, March 21, 2008
James Gibson (Richmond, Visiting at Virginia) has posted on SSRN Doctrinal Feedback and (Un)Reasonable Care. In this piece, Gibson discusses the relationship between an abstract legal standard (e.g., reasonable care) and the "real world" to which the standard is applied (e.g., medical practice). Here's a taste from the abstract:
For example, suppose a physician provides more-than-reasonable care - extra tests, unneeded procedures, etc. - so as to steer clear of tort liability's considerable gray area. If other physicians follow suit, their precautions slowly but surely become the new legal norm, as the reasonable care standard dutifully absorbs the conduct of those it governs. Instead of discouraging wasteful practices, the law feeds them back into doctrine, making overcompliance into mere compliance and racheting up the standard of care. Overcautious physicians then have to do even more to steer clear of liability, and the cycle begins anew.