Thursday, September 13, 2012
Steven Shavell (Harvard) has posted to SSRN A Fundamental Enforcement Cost Advantage of the Negligence Rule over Regulation. The abstract provides:
Regulation and the negligence rule are both designed to obtain compliance with desired standards of behavior, but they differ in a primary respect: compliance with regulation is ordinarily assessed independently of the occurrence of harm, whereas compliance with the negligence rule is evaluated only if harm occurs. It is shown in a stylized model that because the use of the negligence rule is triggered by harm, the rule enjoys an intrinsic enforcement cost advantage over regulation. Moreover, this advantage suggests that the examination of behavior under the negligence rule should tend to be more detailed than under regulation (as it is).
Tuesday, September 11, 2012
Jason Solomon (W&M) has posted to SSRN The Political Puzzle of the Civil Jury. The abstract provides:
At the root of many contemporary debates over the civil justice or tort system — debates over punitive damages, preemption, and tort reform more broadly — are underlying questions about the justification for the civil jury. The United States is the only country that still uses a jury in civil cases, and most civil jury trials are tort trials. The jury has more power to decide questions of law in tort than in any other area of law, so any serious discussion of tort law must have the civil jury at its center.
The debate over the jury — in both the academic literature and the public domain — tends to focus on how good or bad it is as an adjudicative institution. But its justification has often been based on its value as a political institution.
In this Article, I look at the theory, concepts, and empirical evidence behind four principal justifications for the civil jury as a political institution: (1) acting as a check on government and corporate power, (2) injecting community norms into the legal system, (3) providing legitimacy for the civil justice system, and (4) fostering political and civic engagement among citizens.
I tentatively conclude that the benefits of the civil jury as a political institution are overstated and provide suggestions for improving the functioning of the jury as a political institution and for further empirical research.
An article by trial lawyer Melvin Dubinsky published in "The Practical Lawyer" may be of interest to torts-practitioners. The article, Making the Most of Graphics for Trial, provides tips for using graphics in various tort cases such as car accident, and property liability cases, as well as illustrating damages through PowerPoint slides.
Monday, September 10, 2012
The Chamber's Institute for Legal Reform has released the 2012 Lawsuit Climate Report. The report surveys in-house general counsel, and senior attorneys at companies with at least $100 million in annual revenues about their perceptions of the states' tort systems. According to the report, "[t]he worst jurisdiction was Chicago/Cook County, Illinois (17%), followed by Los Angeles, California (16%), the state of California in general (9%), San Francisco, California (9%), and Philadelphia, Pennsylvania (8%)."
A pdf of the report is also available.