July 13, 2009
Gibson on "Doctrinal Feedback"
Jim Gibson (Richmond), mostly an IP prof (and my former colleague from Williams & Connolly), has posted (a while ago) an interesting torts-related piece, Doctrinal Feedback and (Un)Reasonable Care. In it, he addresses the circularity of the standard of care in tort law, where the level of care required is affected by the negligence standard's definition's reference to actual conduct. Put another way, if a standard of care is defined by referring to what doctors actually do (in the med mal context), and doctors are acting not just to avoid harm, but to avoid litigation, the legal standard is being affected by itself.
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