Friday, July 5, 2013
Nora Freeman Engstrom (Stanford) has posted to SSRN Lawyer Lending: Costs and Consequences. The abstract provides:The “lawyer lending” industry — comprised of lenders who extend capital to plaintiffs’ lawyers to finance personal injury litigation — has blossomed. This industry has taken off, at least in part, because attorneys are permitted to deduct interest on these loans from client recoveries as an additional “expense” of litigation. The cost of the burgeoning lawyer lending industry is, thus, in large measure, borne by clients. This Article asks whether personal injury attorneys who choose to take out loans to cover case costs and litigation expenses ought to be allowed to offload associated interest charges. The Article shows this question is important in its own right — with profound implications for the quantity and intensity of tort litigation. And the question is also an ideal point of entrée to identify, and begin to remedy, broader deficiencies in three strands of current legal analysis. Examining the propriety of interest pass-throughs first highlights the importance of litigation costs — and the inter-connectivity of costs and contingency fees — a topic that has suffered from too little investment in research. Second, by separately considering just lawyer lending, (rather than all third-party funding mechanisms simultaneously), and by studying a mechanism’s on-the-ground operation, (rather than just its birds-eye-view impact), the Article attempts to lead by example to reorient future Alternative Litigation Finance scholarship. Third, the Article underscores the need to push past bare formalism, and it sketches an alternative theoretical framework that can be employed when confronting certain ethical issues going forward.
Thursday, July 4, 2013
Wednesday, July 3, 2013
John Culhane (Widener) has posted to SSRN Bullying, Litigation, and Populations: The Limited Effect of Title IX. The abstract provides:
During the past few years, the problem of school bullying has gained national prominence. Scholars, policy-makers, and media outlets have belatedly begun to address the long-term physical consequences of bullying for children, as well as the corrosive effect of this destructive conduct on the learning environment. Because the problem is complex and multi-factored, however, solutions remain elusive.
This article examines and compares two approaches to dealing with bullying. First, litigation is considered as a way of responding to the most serious cases. Suing school districts that allow bullying to go unchecked can be helpful: victims are often entitled to compensation, officials in other school districts can be deterred by news of liability against other schools, and the ability to have one’s story heard in court can be a powerful balm in some cases. Yet litigation has substantial limitations. It is only an option in a small number of cases involving the most serious harms, but most bullying does not result in that level of injury. And even where settlements compel a student to create antibullying initiatives, often the resulting programs are designed to avoid litigation rather than to address the deeper issues that cause bullying in the first place.
With the limitations of a litigation strategy thus described, the article moves on to consider how a public health approach can lead to better outcomes. Public health takes account of all affected populations, and is committed to an evidence-based model of problem-solving. The article examines state laws and policies for fit with sound public health principles, and provides analysis of how these initiatives might result in an overall reduction in the incidence and prevalence of bullying.
Tuesday, July 2, 2013
One of the medical malpractice reforms recently adopted in Florida allows lawyers for health care providers in med mal claims to collect information on private conversations between patients and other health care providers without the patient's consent. Five lawsuits filed yesterday challenge the reform on the grounds that it violates both the state constitution and federal law (HIPAA). The Miami Herald blog has details.
Monday, July 1, 2013
Jamie Abrams (Louisville) has posted to SSRN Distorted and Diminished Tort Claims for Women. The abstract provides:
Childbirth is distinctly characterized in tort law by the literal emergence of a potential putative plaintiff. This Article seeks to position the birthing woman — distinct from the pregnant woman or the parent — squarely within the negligence framework and, in doing so, to challenge prevailing assumptions dominating obstetric medical decision-making. The existence of two patients and two putative plaintiffs is unique to childbirth, yet largely unexamined in tort. This Article examines how the dominant focus on fetal harms in modern childbirth overshadows the birthing woman in tort and distorts the normative dualities of childbirth.
While theoretically childbirth falls within a traditional negligence framework, unique dualities dominate the tort framework when applied to birthing malpractice cases. First, absent extenuating circumstances, the doctor and the woman make birthing decisions as dual actors with the woman normatively retaining primacy in medical decision-making. Second, the doctor owes a duty to both the birthing woman and the fetus in utero. Both birthing women and the children who suffer birthing injuries can separately bring tort claims against the physician(s), with some states extending liability through to when an in utero patient reaches the age of majority.
Birthing women rarely sue for their own physical harms resulting form obstetric malpractice, while fetal harms are frequent, emotional, and yield huge damage verdicts. This Article concludes that because the fetus has become the dominant patient in childbirth and the far riskier putative plaintiff in modern obstetric malpractice cases, this reality diminishes and subordinates the rights and remedies of birthing woman as patients and plaintiffs in problematic ways. This fetal harms focus has a pervasive and multi-layered impact. It distorts the standard of care that doctors distinctly owe to both the woman and the fetus. It tilts the dualities of childbirth toward the fetus. It valorizes medical judgments in response to uncertainty in childbirth and villainizes maternal responses that do not conform to an essentialized, self-sacrificial, and historically myopic view of childbirth.
Obstetric malpractice cases further reveal fetal-focused consequentialist decision-making whereby, when the child is born healthy, the duality of doctors treating both women and in utero fetuses collapses and birthing women’s rights to tort remedies are subsumed within the positive birthing outcome. Healthy babies negate maternal harms. This fetal harm focus is entrenched in litigation patterns and judicial precedent. It reveals real problems positioning the dualities of childbirth in our tort framework and preserving the autonomy of birthing women. This Article further foreshadows the pervasive problems “personhood” law reform initiatives present to the obstetric care model.