Tuesday, September 6, 2016
In Forbes, John Goodman, Senior Fellow at the Independent Institute, discusses the well-known shortcomings of the tort system for medical malpractice. He then proposes an alternative:
Prior to undergoing treatment, patients would be offered voluntary, no-fault insurance as an alternative to the tort system. The base patient compensation would be set by an independent commission and would be paid irrespective of the cause of the adverse event. The rates would be similar to the schedule of payments under workers’ compensation and patients would be free to pay additional premiums out of their own pockets for more generous coverage. Base compensation would be paid by insurers from premium payments by hospitals and physicians—just as they buy malpractice insurance today. The premiums would reflect the individual provider’s (or institution’s) success or failure at reducing adverse events.
Insurance companies, rather than patients and third-party payers, would become the monitors of hospital quality. Providers whose patients experience a lot of adverse events would face high premiums. As the insurance premiums become reflected in hospital and doctor fees, patients and their insurers would become aware of potentially large differences in the cost of care. Price competition would drive patients to lower-cost, higher-quality care.
The entire article is here.
Tuesday, August 30, 2016
Monday, August 29, 2016
The AALS Section on Torts and Compensation Systems is pleased to announce that the recipient of the 2017 William L. Prosser Award is Stephen Sugarman, Roger J. Traynor Professor of Law at the University of California, Berkeley School of Law.
The Prosser Award recognizes outstanding contributions in scholarship, teaching and service related to tort law. Nominations are made by fellow tort scholars, and the recipient is selected by former Prosser Award winners and former chairs of the AALS Torts Section, with approval of the Torts Section Executive Committee. Professor Sugarman’s award, and his many contributions to tort law, will be recognized at the Torts Section meeting at the AALS Annual Meeting in San Francisco, at 1:30 pm on Friday, January 6th, 2017.
Friday, August 26, 2016
Hart Publishing has published James Edelman and Elise Bant's Unjust Enrichment. From the blurb:
Unjust enrichment is one of the least understood of the major branches of private law. This book builds on the 2006 work by the same authors, which examined the developing law of unjust enrichment in Australia. The refinement of the authors' thinking, responding to novel issues and circumstances that have arisen in the maturing case law, has required many chapters of the book to be completely rewritten. The scope of the book is also much broader. It concerns the principles of the law of unjust enrichment in Australia, New Zealand, England and Canada. Major decisions of the highest courts of these jurisdictions in the last decade provide a fertile basis for examining the underlying principles and foundations of this subject. The book uses the leading cases, particularly in England and Australia, to distil and explain the fundamental principles of this branch of private law. The cases discussed are current as of 1 May 2016 although the most recent could only be included in footnotes.
For a 20% discount, download this flyer: Download Edelman_Bant
Hart has also published Alan Beever's A Theory of Tort Liability. From the blurb:
This book provides a comprehensive theory of the rights upon which tort law is based and the liability that flows from violating those rights. Inspired by the account of private law contained in Immanuel Kant's Metaphysics of Morals, the book shows that Kant's theory elucidates a conception of interpersonal wrongdoing that illuminates the operation of tort law. The book then utilises this conception, applying it to the various areas of tort law, in order to develop an understanding of the particular areas in question and, just as importantly, their relationship to each other. It argues that there are three general kinds of liability found in the law of tort: liability for putting another or another's property to one's purposes directly, liability for doing something to a third party that puts another or another's property to one's purposes, and liability for pursuing purposes in a way that improperly interferes with the ability of another to pursue her legitimate purposes. It terms these forms liability for direct control, liability for indirect control and liability for injury respectively. The result is a coherent, philosophical understanding of the structure of tort liability as an entire system. In developing its position, the book considers the laws of Australia, Canada, England and Wales, New Zealand and the United States.
For a 20% discount, download this flyer: Download Beever
Michael Sant'Ambrogio and Adam Zimmerman have posted to SSRN Inside the Agency Class Action. The abstract provides:
Federal agencies in the United States hear almost twice as many cases each year as all the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a result, across the administrative state, the number of claims languishing on agency dockets has produced crippling backlogs, arbitrary outcomes and new barriers to justice.
A handful of federal administrative programs, however, have quietly bucked this trend. The Equal Employment Opportunity Commission has created an administrative class action procedure, modeled after Rule 23 of the Federal Rules of Civil Procedure, to resolve “pattern and practice” claims of discrimination by federal employees before administrative judges. Similarly, the National Vaccine Injury Compensation Program has used “Omnibus Proceedings” resembling federal multidistrict litigation to pool common claims regarding vaccine injuries. And facing a backlog of hundreds of thousands of claims, the Office of Medicare Hearings and Appeals recently instituted a new “Statistical Sampling Initiative,” which will resolve hundreds of common medical claims at a time by statistically extrapolating the results of a few hearing outcomes.
This Article is the first to map agencies’ nascent efforts to use class actions and other complex procedures in their own hearings. Relying on unusual access to many agencies — including agency policymakers, staff and adjudicators — we take a unique look “inside” administrative tribunals that use mass adjudication in areas as diverse as employment discrimination, mass torts, and health care. In so doing, we unearth broader lessons about what aggregation procedures mean for policymaking, enforcement and adjudication. Even as some fear that collective procedures may stretch the limits of adjudication, our study supports a very different conclusion: group procedures can form an integral part of public regulation and the adjudicatory process itself.
Wednesday, August 24, 2016
Ken Abraham & Ted White have posted to SSRN The Transformation of the Civil Trial and the Emergence of American Tort Law. The abstract provides:
Everyone agrees that American tort law expanded significantly in the late nineteenth century. But the story of that change, as usually told, is radically incomplete. One important precondition of tort law as we now know it was a major change in evidence law, one that only began to emerge after 1850. Before then, plaintiffs, defendants, and other “interested” parties were almost universally prohibited from testifying in civil trials. With this prohibition on party testimony, what the jury knew about the facts underlying a tort action was derivative and incomplete. Far fewer tort actions were brought at all, because often the only evidence available to the plaintiff was his or her own account of what had happened, and that was inadmissible. But with the change, victims of personal injury were now able to describe, before juries, the circumstances in which they had been injured. They were able to talk about what they had done, what the entities they were suing had done or not done, and how they had suffered. They no longer needed the fortuitous presence of third-party witnesses to elicit testimony about how had they had been injured. The abolition of the prohibition on party testimony, in short, made it much easier to succeed in personal injury lawsuits.
At stake in this transformation was the very epistemology of the civil trial. With the admission of party testimony, civil trials went from being pre-modern efforts to resolve disputes whose outcomes were affected by the spiritual weight assigned to oaths taken by third-party witnesses, to the modern searches for factual truth that we now (incorrectly) assume they always have been. Without this transformation, other factors that later brought about modern tort liability could not have exercised the influence that they did have. The transformation created the very conditions under which modern tort law could, and then did, emerge. Yet the transformation and its significance for tort law have gone largely unrecognized. Modern tort scholars appear to be completely unaware of the prohibition on party testimony, and have therefore failed for more than a century to take it into account in the way they have written and taught about the development of the law of torts. Because the rules and practices that preceded the transformation have now completely disappeared from modern torts cases, what it accomplished may appear, incorrectly, to have always been the case. But it is lack of visibility, rather than lack of responsibility, that has actually been at work in hiding the significance of the transformation for the emergence of modern tort law.
Tuesday, August 23, 2016
Keith Hylton has posted to SSRN Enhanced Damages for Patent Infringement: A Normative Approach. The abstract provides:
In Halo Electronics v. Pulse Electronics the Supreme Court granted greater discretion to lower courts to enhance damages for patent infringement. This paper takes a normative approach to patent infringement damages. Its underlying premise is that the goal of a damages regime should be to maximize society’s welfare. Patent damages should therefore balance society’s interest in encouraging innovation against the need to regulate infringement incentives. Although the analysis here is mostly normative and draws heavily on the economic theory of penalties, the aim of this paper is to provide a set of practical guidelines courts can follow in explaining, justifying, and developing rules to structure the discretion that Halo has returned to them.
Monday, August 22, 2016
Thursday, August 18, 2016
In late 2014, the Supreme Court of Pennsylvania decided Tincher v. Omega Flex, overruling several unusual aspects of state law and declining to adopt R3. The case created a lot of uncertainty, which has been compounded by recent turnover on the court. This summer, the civil instructions subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions unveiled the first changes to standard products jury instructions in forty years. The defense bar and manufacturers are not happy. In a ten-page letter (Download DC-#626926-v1-Pa__jury_instruction_protest_letter_2016) sent to the subcommittee's chair, partners from multiple law firms and twenty companies, including Johnson & Johnson; Pfizer Inc.; GlaxoSmithKline; Ford; Shell Oil, and Eli Lilly, raised objections to the proposed standard jury instructions. The Legal Intelligencer reports:
Chief among those issues, the defense bar said, is the update's failure to include any mention of the requirement under Section 402A of the Restatement (Second) of Torts that a product defect must be "unreasonably dangerous" to support strict liability. The instructions are inconsistent with Tincher's adoption of the "prevailing standard of proof" reflected in the jury instructions of most states that follow Section 402A, and should be rewritten to include an instruction on the issue, the letter said.
The subcommittee chair responded that the subcommittee had taken all perspectives into account when crafting the revisions, but would nevertheless review the proposed instructions again at its next meeting. The full article (behind a free sign-up wall) is here.
Monday, August 15, 2016
Here is a classic eggshell plaintiff case in which one officer (Lancaster County) gave another (City of Lincoln) a friendly punch on the shoulder in greeting, without knowing that the recipient had recently undergone rotator cuff surgery. The result was $63,418 in medical bills, covered by workers' comp. The City of Lincoln sued Lancaster County for indemnification, but a district judge determined that the punch was an intentional tort (battery) rather than negligence, therefore immunizing Lancaster County from liability under Nebraska's municipal tort claims act. The Lincoln Journal Star has details.
Monday, August 8, 2016
Hart Publishing has just released Gemma Turton's Evidential Uncertainty in Causation in Negligence. The blurb:
This book undertakes an analysis of academic and judicial responses to the problem of evidential uncertainty in causation in negligence. It seeks to bring clarity to what has become a notoriously complex area by adopting a clear approach to the function of the doctrine of causation within a corrective justice-based account of negligence liability. It first explores basic causal models and issues of proof, including the role of statistical and epidemiological evidence, in order to isolate the problem of evidential uncertainty more precisely. Application of Richard Wright's NESS test to a range of English case law shows it to be more comprehensive than the 'but for' test that currently dominates, thereby reducing the need to resort to additional tests, such as the Wardlaw test of material contribution to harm, the scope and meaning of which are uncertain. The book builds on this foundation to explore the solution to a range of problems of evidential uncertainty, focusing on the Fairchild principle and the idea of risk as damage, as well as the notion of loss of a chance in medical negligence which is often seen as analogous with 'increase in risk', in an attempt to bring coherence to this area of the law.
A flyer (with discount) is here: Download Turton
Friday, August 5, 2016
Shahar Dillbary, Griffin Edwards, and Fredrick Vars have posted to SSRN The Costs of Suicide. The abstract provides:
This article is the first to empirically analyze the impact of tort liability on suicide. Counter-intuitively, our analysis shows that suicide rates increase when potential tort liability is expanded to include psychiatrists—the very defendants who would seem best able to prevent suicide. Using a 50-state panel regression for 1981 to 2013, we find that states that would hold liable psychiatrists (but not other doctors) for malpractice resulting in a suicide experienced a 12.8% increase in suicides. The effect is even stronger, 16.8%, when we include controls. We do not believe this is because suicide prevention doesn’t work. Rather, we theorize that it is because some psychiatrists facing potential liability choose not to work with patients at high risk for suicide. The article makes an important contribution to the law of proximate cause. Traditionally, one could not be liable for malpractice that causes another’s suicide—the suicide was considered a superseding and intervening cause. About half of states retain the old common law rule. Others have created exceptions for psychiatrists only, or for all doctors, and some have abandoned the old rule entirely. Our findings suggest that expanding liability for psychiatrists may have an adverse affect. Accordingly, this article suggests that the best policy might be to retain or revive the traditional no-liability-for-suicide rule for mental health specialists. The implications are enormous: over 40,000 people in the United States die each year from suicide.
Thursday, August 4, 2016
Many jurisdictions have enacted protections for "innocent" sellers of products found to be defective in an attempt to place the burden of compensation on the party with (the most) fault, generally the manufacturer. Texas has a statute allowing an innocent seller to receive indemnification. A general contractor incorporated a defective roof truss into its project and the issue arose whether the contractor was a "seller" for purposes of the statute. The court ruled it was not, as it was not in the business of selling roof trusses, rather the provision of roof trusses was incidental to its general construction services. Jones Day's website has details.
Wednesday, August 3, 2016
On Monday, the Connecticut Supreme Court ruled that a woman who found her husband crushed to death shortly after a large ATV fell on him cannot sue his employer for bystander emotional distress. She recovered pursuant to the state's workers comp statute. The Hartford Courant has the story.
Tuesday, August 2, 2016
Daniel Schwarcz has posted to SSRN A Unified Theory of Insurance Law: The Clarification, Production, and Dissemination of Coverage Information. The abstract provides:
The central goal of insurance law is to clarify, produce, and disseminate information about the scope of insurers’ coverage obligations to policyholders. This Article examines how insurance law and regulation seek to achieve these objectives, and to what ends. To do so, it distinguishes among three different types of coverage information: (i) purchaser information, or coverage information that is communicated to policyholders at the time they purchase coverage; (ii) policy information, or coverage information that is contained within the four corners of the insurance policy; and (iii) judicial information, which is coverage information that is ascertainable only after researching judicial opinions resolving coverage disputes. The Article shows how each of these three forms of coverage information can promote more efficient insurance markets, frequently in ways that are largely overlooked or under-appreciated by courts and commentators. This framework not only helps illuminate the underlying structure of insurance law. It also sheds new light on various long-standing disputes in the field, which often require prioritization and trade-offs among the three different types of coverage information. For instance, the Article suggests that one important reason for embracing a sophisticated policyholder exception to the ambiguity rule is that doing so produces judicial information at the expense of policy information, a sensible tradeoff with respect to sophisticated policyholders. Similarly, the Article argues that, contrary to the ordinary rule, courts should generally refuse to admit extrinsic evidence to disambiguate policy language when it comes to consumer-oriented policies, because doing so can undermine the production of policy information when purchaser information is present. Yet these two types of information serve very different purposes in the insurance context. More generally, the Article suggests that a substantial number of perennial disputes in insurance law can be helpfully analyzed by reference to their impact on purchaser information, policy information, and judicial information.
Monday, August 1, 2016
Maya Steinitz and Paul Gowder have posted to SSRN Transnational Litigation as a Prisoner's Dilemma. The abstract provides:
In this Article we use game theory to argue that perceptions of widespread corruption in the judicial processes in developing countries create ex ante incentives to act corruptly. It is rational (though not moral) to preemptively act corruptly when litigating in the courts of many developing nations. The upshot of this analysis is to highlight that, contrary to judicial narratives in individual cases — such as the (in)famous Chevron–Ecuador dispute used herein as an illustration — the problem of corruption in transnational litigation is structural and as such calls for structural solutions. The article offers one such solution: the establishment of an international court of civil justice.
Thursday, July 28, 2016
Dan Monk at WCPO in Cincinnati has written an article about P&G's products exposure. Monk finds suits against 9 of P&G's products (they have between 100 and 200 products). He chronicles the various cases against such brands as Tide Pods, Old Spice, and Charmin.
Wednesday, July 27, 2016
Joseph Hnylka has posted to SSRN California Drops the Ball: The Lack of a Clear Approach to Recklessness in Sports Injury Litigation. The abstract provides:
California jurisprudence lacks a uniform, clear, and manageable approach to recklessness in sport injury cases. In Knight v. Jewett, 3 Cal. 4th 296 (1992), the California Supreme Court adopted a unique “duty” approach for primary assumption of risk cases involving sports. The Court ruled that a plaintiff’s subjective knowledge and awareness of risks were irrelevant. Instead, the Court noted that the focus of the inquiry should be whether “in light of the nature of the sporting activity in which defendant and plaintiff were engaged, defendant’s conduct breached a legal duty of care to plaintiff.” Under the new duty approach, although there is no duty to protect a plaintiff from risks inherent in the sport itself, participants, coaches, and instructors will be liable for intentionally injuring the plaintiff or engaging in conduct that is “so reckless as to be totally outside the range of ordinary activity involved in the sport.” In the past two decades, California recklessness cases involving coaches and sport participants have become confusing. Courts lack a uniform approach and continue to apply different standards for recklessness.
First, courts have difficulty applying the California Supreme Court’s definition of recklessness, which requires courts to determine whether conduct is “totally outside the range of ordinary activity involved in the sport.” This standard provides no guidance to the court or to the trier of fact who must distinguish reckless conduct from negligent or careless conduct.
Second, courts are confused by the relationship between the concepts of recklessness and inherent risk. The concept of inherent risk is critical to the application of the primary assumption of risk doctrine. Inherent risk defines duty, and a defendant has no duty to protect plaintiff from risks inherent in the sport. However, because recklessness requires conduct “totally outside the range of ordinary activity involved in the sport,” does a finding that plaintiff was injured by a risk inherent in the sport preclude a finding of recklessness? When a court rules that a risk is not inherent, is the court also saying the risk is “totally outside the range of ordinary activity involved in the sport”?
Third, California’s courts are confused by the relationship, if any, between recklessness and the defendant’s duty not to increase the risk. Are these duties essentially the same when defendant is a coach or sport participant? If not, may courts and plaintiff’s attorneys use the duty not to increase the risk as a vehicle to bypass the intentional/reckless standard and instead apply a negligence standard to coaches and participants in sport injury cases?
Fourth, some courts of appeal, perhaps frustrated by the lack of a clear standard for recklessness, have traveled beyond the California Supreme Court’s recklessness definition and have used different standards to determine whether a defendant’s conduct was reckless. Some courts have used the Restatement of Torts to define recklessness in sports injury cases. Other courts have used a policy-based test for recklessness.
The confusion can be significantly decreased, and perhaps eliminated, if the courts adopt a uniform, policy-based approach to inherent risk and use the Restatement standard for recklessness in sport injury cases. Under the policy-based approach to inherent risk, a risk is inherent if the prohibition of the defendant’s conduct would neither chill vigorous participation in the sport or activity nor alter the nature of the sport or activity. California courts also should use the Restatement standard for recklessness in sport injury cases. The Restatement approach can be used as a recklessness standard in sport injury cases without difficulty if the question of recklessness is raised, as it should be, after the court has applied the policy-based test for inherent risk, suggested above. Finally, the courts should abandon the defendant’s duty not to increase the risk beyond what is inherent in a sport. The duty not to increase the risk is unnecessary and only increases confusion.
Friday, July 22, 2016
I had an inquiry about teaching single and dual intent for battery and I want to appeal for your collective wisdom. About the time I started teaching there was a robust list-serv discussion on this topic that I found helpful. Given that the ALI is working on the Restatement of Intentional Torts right now, many of you may have thought about this recently. I take the inquiry to be more about pedagogy than doctrine, but all tips are welcome. How do you teach single versus dual intent? How do you integrate it with purpose and substantial certainty? Do you recommend any good sources for students? Thanks!
Wednesday, July 20, 2016
From Chris Odinet at PropertyProf Blog:
REGISTRATION OPEN FOR CENTRAL STATES LAW SCHOOLS ASSOCIATION CONFERENCE
Please click here to register. The deadline for registration is September 2, 2016.
Hotel rooms are now available for pre-booking. The conference hotel is the Hilton Garden Inn in Grand Forks. The hotel phone number is (701) 775-6000. When booking, identify yourself as part of the “UND School of Law” block to receive a daily rate of $89. Please note that conference participants are responsible for all of their own travel expenses including hotel accommodations.
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We look forward to seeing you in Grand Forks!
The 2016 CSLSA Board
For more information about CSLSA, visit our website at http://cslsa.us/ or contact a board member.