Friday, July 6, 2012
Leslie Kendrick (UVa) has posted to SSRN Speech, Intent, and the Chilling Effect. The abstract provides:
In First Amendment doctrine, the “chilling effect” is often invoked as an objection to an otherwise legitimate rule that has the incidental effect of over-deterring protected speech. Although applications of the chilling effect are pervasive in cases involving the freedom of speech, they have received surprisingly little attention.
This Article focuses specifically on the use of chilling effect arguments to explain the role of speaker’s intent in protecting free speech. Speaker intent requirements, such as the “actual malice” standard for defamation, are common features of First Amendment law, and the chilling effect has been the primary doctrinal and normative explanation for their presence. This Article argues that the chilling effect is an unsatisfactory justification for such requirements. Moreover, the failure of the chilling effect to account for important aspects of free speech doctrine ought to raise more general concerns about the use of deterrence-based arguments in constitutional law.
Thursday, July 5, 2012
Gabriel Teninbaum (Suffolk) is pursuing a project on the harm caused to patients by medical apology programs. He has a paper uploaded to SSRN How Medical Apology Programs Harm Patients. The abstract provides:
When an attorney suspects that he has committed legal malpractice, he must disclose it to the client and recommend that the client seek outside counsel to get objective legal advice on how to proceed. By contrast, when a doctor suspects that he has committed medical malpractice, at many facilities he is expected to employ a set of protocols that discourage the injured patient from considering the need for compensation. Yet, while an attorney could be disbarred for this sort of behavior, medical apology programs widely receive praise.
This Article argues that it is time to reconsider medical apology programs and the methods by which they operate. To do so, the Article explains the history of medical apology programs, how they work and how their design subverts the goals of fully compensating patients under the principles of tort law. The Article then suggests straightforward, effective cures for the misuse of medical apology programs.
Thanks to Alberto Bernabe for the tip.
Monday, July 2, 2012
I realize we have readers not terribly interested in early offers. I hope to take a break from them after this.
Max Kennerly, of the Beasley firm in Philadelphia, posted some comments on my previous early offers posts and, instead of answering them piecemeal, I want to address them comprehensively. The crux of Kennerly’s opposition to early offers is actually the same as my support for them: the desire that claimants receive compensation.
As I understand Kennerly’s comments, he has two principal objections. First, the penalty for turning down the offer will exacerbate the amount of claimants who do not recover because it will prevent lawyers from taking their cases. Second, the amount of and process to obtain the early offer would be insufficient for a variety of reasons.
The Penalty for Turning Down the Early Offer Will Lead Attorneys to Turn Down Cases.
Kennerly notes a 2006 New England Journal of Medicine article finding that approximately one in six claimants with valid claims did not recover. He believes the addition of the bond and fee-shifting will mean more claimants will not be able to obtain a lawyer (because of the risk involved).
There are two responses to this concern. First, New Hampshire’s law has safeguards in place that encourage claimants to have an attorney involved in the initial decision of whether to seek an early offer. Unrepresented claimants are assigned a neutral advisor whose job is to encourage the claimant to seek an attorney and explain the difference between early offers and traditional tort law. Thus, many claimants will likely have attorneys before the offer is requested, reducing (but not eliminating) the scenario Kennerly fears. In this vein, I’m actually more concerned that claimants who would benefit from early offers will fail to request them on the advice of counsel than I am that claimants will request an offer when it is ill-advised.
Second, and more significantly, the only way a claimant will have the burden of fee-shifting attached to the claim is if the claimant requested an offer and the offer has been made. In other words, the claimant has already been assured economic loss (on this issue, see Kennerly’s next objection), a modest amount for pain and suffering, and the payment of her attorney’s fees. If the concern is that one in six claimants with valid claims recovers nothing, surely this is an improvement. Especially when one considers the fact that the most egregiously injured claimants often recover only a portion of economic loss pursuant to tort law.