Friday, August 3, 2012
Michael Frakes (Cornell) has posted a new article to SSRN, Does Medical Malpractice Deter? The Impact of Tort Reforms and Malpractice Standard Reforms on Healthcare Quality. The abstract provides:
Despite the fundamental role of deterrence in the theoretical justification for medical malpractice law, surprisingly little evidence has been put forth to date bearing on its existence and scope. Using data from the 1979 to 2005 National Hospital Discharge Surveys and drawing on an extensive set of variations in various tort measures (e.g., damage caps) and malpractice standard-of-care rules (Frakes 2012a), I estimate a small and statistically insignificant relationship between malpractice forces and two metrics of healthcare quality emphasized by the Agency for Healthcare Research and Quality: avoidable hospitalization rates (reflective of outpatient quality) and inpatient mortality rates for selected medical conditions. At most, the evidence implies an arguably modest degree of malpractice-induced deterrence. For instance, at one end of the 95% confidence interval, the lack of a non-economic damages cap (indicative of higher malpractice pressure) is associated with only a 4% decrease in avoidable hospitalizations.
Wednesday, August 1, 2012
John Goldberg & Robert Sitkoff (Harvard) have posted to SSRN Torts and Estates: Remedying Wrongful Interference with Inheritance. The abstract provides:
This paper examines the nature, origin, and policy soundness of the tort of interference with inheritance. We conclude that the tort should be repudiated because it is conceptually and practically un-sound. Endorsed by the Restatement (Second) of Torts and recognized by the U.S. Supreme Court in a recent decision, the tort has been adopted by the courts of nearly half the states. But the tort is deeply problematic from the perspectives of both inheritance law and tort law. It undermines the core principle of freedom of disposition that undergirds all of American inheritance law. It invites circumvention of principled policies encoded in the specialized rules of procedure applicable in inheritance disputes. In many cases, it has displaced venerable and better fitting causes of action for equitable relief. It has a derivative structure that violates the settled principle that torts identify and vindicate rights personal to the plaintiff. We conclude that the emergence of the interference-with-inheritance tort is symptomatic of two related and unhealthy tendencies in modern legal thought: the forgetting of restitution and equitable remedies, and the treatment of tort as a shapeless perversion of equity to provide compensation for, or de-terrence of, harmful antisocial conduct.
Tuesday, July 31, 2012
Keith Hylton (Boston University) has posted to SSRN The Law and Economics of Products Liability. The abstract provides:
This paper presents a largely positive analysis of products liability law, in the sense that it aims to predict the incentive effects and the welfare consequences of the law, with close regard to its specific legal tests and the real-world constraints that impinge on these tests. The other major part of this paper is a normative assessment of the parts of products liability law that should be reformed. In contrast with the prevailing law and economics literature suggesting that products liability law reduces social welfare, I argue that the law probably improves social welfare, though it is in need of reform in several respects.
Keith will present the paper at Widener on Friday.
The Tulsa World reports that medical malpractice judgments in Oklahoma are at a ten-year low. Both tort reform proponents and opponents attribute the stats to the impact of OK's 2009 tort reform law, but disagree on whether the result is a good thing.
Monday, July 30, 2012
A recent article by Victor E. Schwartz, Phil Goldberg & Chris E. Appel addresses whether the judiciary is empowered to hear climate change litigation cases: Schwartz, Goldberg & Appel, Does the Judiciary Have the Tools for Regulating Greenhouse Gas Emissions?, 46 Val. U. L. Rev. 369 (2012).
From the authors:
Our article takes on the plaintiffs’ three main arguments: (1) because the Supreme Court only held that the Clean Air Act only barred federal common law claims, the same suits could proceed under state tort law; (2) AEP, where the plaintiffs sought injunctive relief and abatement, does not control cases such as Kivalina that seek monetary damages for alleged climate change harm; and (3) that AEP endorsed the notion that all individuals, including state attorneys general, have standing to bring climate change tort claims against private individuals, including private businesses.
As we explain in the article, in addition to its displacement holding, the Supreme Court went to significant lengths to express the practical and institutional reasons the judiciary should not be empowered to regulate GHG emissions. For example, the unanimous Court cautioned that setting GHG emission limits “is undoubtedly an area ‘within nationallegislative power.’” It stated that the judiciary, given its limited tools, does not have the institutional competence to determine “[t]he appropriate amount of regulation” for sources of carbon dioxide and engage in the “complex balancing” needed to assess the impact such a decision would have on the “energy needs” of the American people. As Justice Ginsburg said in oral argument, it is inappropriate to “set up a district judge . . . as a kind of super EPA.”
In addition to applying AEP to Kivalina and other types of potential climate change tort cases, the article also places the regulation of GHGs within the historical, multi-faceted development of U.S. energy policy and discusses the public policy consequences of permitting the judiciary to regulate GHG emissions through tort litigation.