January 2, 2010
Hanson, Hanson, & Hart on Law and Economics
Jon Hanson (Harvard), Kathleen Hanson (affiliation unknown), & Melissa Hart (Colorado) have posted to SSRN Law and Economics. The abstract provides:
This chapter provides an introduction to the history, uses, methods, strengths, and limits of law and economics. It begins by examining the role of positive and normative approaches to law and economics. To examine the positivist thesis - that the law does in fact tend toward efficiency - the chapter discussed and analyzes the famous Hand Formula developed by Judge Learned Hand in United States v. Carroll Towing. As one of the only traditional cases in which a judge arguably made efficiency his explicit goal, the case presents an excellent opportunity to assess whether, even an efficiency-oriented judge will or can identify the efficient result. The chapter reviews the possible liability rules that might have been applied in Carroll Towing, and uses that review to introduce many of the core concepts and methods of law and economics, including game theory. Ultimately, the chapter concludes that, although the Hand Formula may have led to one of the possible efficient results, there is little reason to be confident, and some reason to doubt, that Judge Hand reached the most efficient outcome. The difficulties inherent in selecting the efficient rule through litigation present a significant challenge to the positivist case for legal economics.
The second part of the chapter considers both the normative support for efficiency and the range of challenges to, and refinements of, the normative position that have developed in recent years. The chapter highlights some of the trade-offs inherent in the law and economics approach and concludes that law and economics has, like any legal theory, both costs and benefits.
January 1, 2010
Symeonides on Choice of Law
Symeon Symeonides (Willamette) has posted his 23rd annual choice-of-law survey to SSRN. The abstract provides:
This is the Twenty-Third Annual Survey of American Choice-of-Law Cases. It is written at the request of the Association of American Law Schools Section on Conflict of Laws and is intended as a service to fellow teachers and students of conflicts law, both within and outside the United States. Its purpose is to inform, rather than to advocate.
The Survey covers cases decided by American state and federal appellate courts from January 1 to December 31, 2009, and posted on Westlaw before the end of the year. Of the 1,490 conflicts cases meeting both of these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law - and particularly choice of law.
For the conflicts afficionados, 2009 brought many noteworthy developments, including the enactment of the second choice-of-law codification for tort conflicts in the United States, and a plethora of interesting cases, such as the following:
- Several cases brought under the Alien Torts Statute (ATS) involving human rights abuses in foreign sites, including Iraq’s Abu Ghraib prison, one case denying a Bivens remedy to a victim of “extraordinary rendition,” and one case allowing an ATS action against an American pharmaceutical company for nonconsensual medical experiments on children in Nigeria;
- Two cases holding that the Holy See was amenable to suit under the tortious activity exception of the Foreign Sovereign Immunity Act for sexual abuses allegedly committed by clergymen in the United States;
- Two cases declaring unconstitutional two California statutes (dealing with Nazi looted artwork and the Armenian Genocide, respectively) as infringing on the Federal Government’s exclusive power over foreign affairs;
- Several cases dealing with the recognition of same-sex marriages and their implications on issues of parentage, adoption, and child custody; Several cases striking down (and a few enforcing) class-action or class-arbitration waivers in consumer contracts;
- A Minnesota case holding that Panama’s blocking statute did not prevent dismissal on forum non conveniens grounds an action arising from events occurring in Panama; and
- A case of legal malpractice for mishandling a conflicts issue, a case involving alienation of affections and “criminal conversation,” and the usual assortment of tort, product liability, and statute of limitation conflicts.
Additionally, check out his article on Oregon's choice-of-law codification for torts.
December 31, 2009
GA Legislators Ready to Revise Tort Reform Provisions if Held Unconstitutional
The Georgia Supreme Court heard constitutional arguments in two tort reform cases this fall. In September, the issue was a cap on pain and suffering in med mal cases; in October, the issue was the burden of proof in emergency room cases. Both were enacted in a comprehensive tort reform law passed in 2005. The General Assembly is watching those cases carefully. If the court finds either provision unconstitutional, Republican leaders will move to rewrite it and keep it intact according to House Majority Leader Jerry Keen, R-St. Simons Island. The Atlanta Business Chronicle has the story.
December 30, 2009
China Passes Tort Liability Law
On December 26th, the 12th Session of the Standing Committee of the 11th National People's Congress passed the Tort Liability Law of the People's Republic of China. The law regulates liability and compensation for injuries caused by defective products, unruly animals, and collapsing buildings. Coverage is here: George Conk (with the complete text in Chinese) China Briefing, China Daily.
MO: Bill Would Tie Med Mal Premiums to County of Practice
A rural Missouri legislator, in an attempt to incentivize health care providers to practice in rural areas, has introduced a bill tying malpractice insurance premiums to malpractice judgments in the county where a health care provider practices. (Kansas City Business Journal)
December 29, 2009
Buzbee on Preemption Choice
William W. Buzbee (Emory) has posted "'Federalism Floors, Ceilings, and the Benefits of Federalism’s Institutional Diversity,' in Preemption Choice: The Theory, Law, and Reality of Federalism’s Core Question" on SSRN. The abstract provides:
This chapter, from the Preemption Choice book published by Cambridge University Press, analyzes the implications of regulatory regimes utilizing preemptive regulatory ceilings or floors. Floors set a minimum required level of regulatory protection or stringency, and hence leave room for state and local governments and common law regimes to provide further protections and experiment with innovative strategies. Ceilings, in contrast, involve federal requirements that leave no room for different choices, but provide greater regulatory certainty. Many areas of environmental and risk regulation couple limited floor preemption with delegated program federalism and savings clauses. Until late in the Bush Administration, imposition of ceiling preemption was a rarity, and it remains a rarity in statutory law outside of regulation setting physical mandates and involving production benefitting from economies of scale. Starting around 2005, however, numerous federal agencies and the Department of Justice increasingly asserted that agency actions had preemptive effect and acted as a regulatory ceiling. Ceilings function as a unitary standard and hence are often favored by targets of regulation due to how they preclude other regulators from taking diverse and sometimes more stringent actions. Ceilings also, however, create risks of regulatory stasis. By eliminating the limited institutional diversity retained by regulatory floor strategies, regulatory ceilings can eliminate incentives and markets for regulatory learning, experimentalism, pragmatic improvement and innovation. These regulatory risks are especially great if preemptive ceilings are construed to eliminate the possibility of common law litigation, with its different actors and incentives to update and uncover information long after regulators may have finished their work. The chapter closes by explaining how preemptive ceilings are particularly problematic in areas, such as climate change regulation, where understanding of a regulatory challenge is limited, risks of regulatory failures are substantial, or the problem is itself a moving target. Retaining a diversity of regulatory actors and regulatory modalities through floor preemption strategies can help counteract such risks.
December 28, 2009
Bring the Figgy Pudding, But Only After You Sign The Waiver
The UK Independent reports that High Timber, a London restaurant, is asking diners to sign a waiver before serving the traditional Christmas pudding, which can contain - if you are lucky - a small silver charm. The waiver provides, "I absolve entirely High Timber from all blame or liability should I come to any harm including, but not limited to, a chipped tooth, or any injury as a result of swallowing it." Unsurprisingly, the waiver was suggested by some restaurant customers who also happen to be lawyers.
Thanks to Tony Sebok for passing on this story.