Monday, September 22, 2014
Sunday, September 21, 2014
A study with a lead author from the Cleveland Clinic, published in JAMA Internal Medicine, concludes that purely defensive medicine accounts for 2.9% of U.S. healthcare costs. The study is available for purchase here. The L.A. Times's "The Economy Hub" discusses the study here.
Wednesday, September 17, 2014
Steve Hedley (University College Cork) has posted to SSRN Obligations: (Local) Politics or (Universal) Reason?. The abstract provides:
Obligations is both a local institution, influenced by politics, and a universal institution, influenced by reason. It is a distraction to ask which vision should be allowed to predominate: neither truth should be allowed to obscure the other. The real question is how best to accommodate both. This paper approaches the question by comparing two very different descriptions of private law: Ernest Weinrib’s "The Idea of Private Law" (a universal description not expressly tied to any legal system, beyond that it is based on the common law) and Merkin and Steele’s "Insurance and the Law of Obligations" (which is explicitly tied to the legal system of England/Wales). While there are considerable differences between the two (and I imagine that neither approach seems to value the other very much) there are also some surprising similarities between them, raising questions as to the proper perspective from which to describe private law.
Tuesday, September 16, 2014
John Oberdiek (Rutgers-Camden) has posted to SSRN Introduction: Philosophical Foundations of the Law of Torts. The abstract provides:
This Introduction to Philosophical Foundations of the Law of Torts (John Oberdiek, ed., Oxford University Press, 2014) provides a brief history of the discipline of tort theory, maps out current debates in the field, and introduces the volume's nineteen chapters. Along the way, this Introduction addresses many of the core problems in the philosophy of tort law, draws connections between them.
Thursday, September 4, 2014
Marc Rodwin (Suffolk) & Justin Silverman have posted to SSRN Why the Medical Malpractice Crisis Persists Even When Malpractice Insurance Premiums Fall. The abstract provides:
Concerns that medical malpractice premiums continue to grow unabated has led to numerous proposals to change liability rules and reform tort laws. Not only would proposed legislation make lawsuits more difficult for plaintiffs, but the bills do not address the real source of the problems they intend to solve. Premiums are not rising as claimed and even if they were, other factors are contributing to the plight of physicians. But in fact, the claim that malpractice premiums are an unbearable burden for most physicians is myth, not fact.
The first section of this article will examine how this myth began and the proposed legislative remedies it spawned. It will show that junk data has been used to support legislation and it will then introduce more reliable data bearing on these issues. Next, this article will describe other factors that are rarely mentioned but that have important effects on the cost of medical practice and physician income. If doctors are truly closing up shop, it’s not because of malpractice insurance premiums. This article will then examine one AMA-declared “crisis state” to see if there are indeed crises in some selected states, even if there is no crisis nationally. As will be explained, there are not. The study of individual states reveals that there are premium cycles, that recent premium increases reflect these cycles, and that rates will probably fall as they have in the past following an increase. Finally, this article will offer insight into why physicians continue to perceive a crisis despite the data presented and what the future may hold for reform.
Wednesday, September 3, 2014
John Goldberg (Harvard) has posted two pieces to SSRN. First up is Inexcusable Wrongs. The abstract provides:
Tort law has little patience for excuses. Criminal law is more forgiving — it recognizes nominate excuses such as duress and provocation, as well as innominate excuses that temper punishment. Excuses are also commonplace in ordinary morality. Like criminal law and morality, tort law seems concerned with holding persons accountable for their wrongs, and excuses seem to go hand-in-hand with accountability. So why — or in what sense — are torts inexcusable wrongs?
This Article explains how tort law, understood as law that enables victims to hold wrongdoers answerable to them, cogently can refuse to recognize excuses. In doing so, it offers a unified account of many of tort law’s core features, including the objectivity of negligence law’s ordinary care standard, the courts’ insistence on injury as a condition of liability, and the strictness of certain forms of tort liability. More generally, it invites us to broaden our understanding of what it means for law to identify conduct as wrongful, and for law to set up schemes for holding wrongdoers accountable.
Scholars ranging from Holmes to Posner have supposed that, when judges and scholars treat tort as a law for the redress of wrongs, they embrace primitive ideas of vengeance, or empty and sanctimonious notions of morality. This supposition is mistaken. In order to make sense of tort law, one must appreciate that it identifies wrongs and provides rights of action not in the name of vengeance or piousness, but to enable us to hold each other accountable for injuries that we wrongfully inflict on one another.
Next, co-authored with Gabriella Blum (Harvard), is War for the Wrong Reasons: Lessons from Law. The abstract provides:
In Ethics for Enemies, Frances Kamm argues that, under certain conditions, it is morally permissible for a state to launch a war for opportunistic reasons. We consider how law might shed light on Kamm’s argument. Part I addresses the application of criminal and tort law to individual acts of violence analogous to the acts of war analyzed by Kamm. It primarily argues that these bodies of law rely on a framework for determining legal permissibility that runs counter to, and perhaps demonstrates weaknesses in, Kamm’s framework for assessing moral permissibility. Part II considers the law of war. It maintains that, although modern law permits certain opportunistic acts of war, the law does so on terms that cut against Kamm’s claim as to their moral permissibility.
Tuesday, September 2, 2014
Richard Wright (Chicago-Kent) has posted to SSRN Moore on Causation and Responsibility: Metaphysics or Intuition?. The abstract provides:
This paper was prepared for a festschrift in honor of Michael Moore to be published by Oxford University Press. Moore's magnum opus, Causation and Responsibility, amply demonstrates his encyclopedic knowledge of the relevant sources in law and philosophy and his analytical skill. Much can be learned from careful, critical reading.
However, I argue, Moore relies too much on intuition -- more specifically, his own -- in developing his account of causation and its pervasive and (he claims) dominant role in attributions of legal responsibility. Focusing on the NESS account that I have elaborated, he rejects "generalist" accounts of causation, which analyze singular instances of causation as instantiations of causal (natural) laws, instead opting for a "primitivist singularist" account, according to which we simply recognize causation when we see it in each particular instance without any even implicit reference to causal laws or any other "reductionist" test. He erroneously treats the "substantial factor" criterion in the first and second Restatements of Torts (which is properly strongly criticized and rejected in the third Restatement) as being such a primitivist singularist account. In addition, he seeks to replace all of the traditional normative limitations on legal responsibility with a supposed causal analysis, based on the "scalarity" of causation.
Yet, Moore believes, intuitions come into conflict with metaphysics when considering omissions or other absences as causes, which is routinely assumed to be true in law and life but which Moore insists is fundamentally erroneous from a metaphysical standpoint. His insistence on this point, while admirable from an intellectual integrity standpoint, completely undermines the fundamental premise of his book -- that causation is the pervasive and dominant determinant of legal responsibility -- since omissions/absences are part of every causal chain involving human action and many not involving human action.
In this paper, I defend a specific "generalist" account of causation (the NESS account) and criticize Moore's primitivist singularist account. Along the way, I address a number of issues regarding causation and legal responsibility, including the metaphysical basis for treating omissions as causes.
Thursday, August 28, 2014
Nicholas McBride (Cambridge) has posted to SSRN Tort Law and Human Flourishing. The abstract provides:
This is the second in a loose ‘trilogy’ of three papers that I presented at successive Obligations conferences: Obligations V (at the University of Oxford, in 2010, on the theme of ‘Rights and Private Law’), Obligations VI (at the University of Western Ontario, in 2012, on the theme of ‘Challenging Orthodoxy’), and Obligations VII (at Hong Kong University, in 2014, on the theme of ‘Divergence and Convergence in Private Law’).
In this paper, I argue that giving effect to the ‘balanced approach’ to determining what rights we have that I set out in my paper on ‘Rights and the basis of tort law’ requires one to draw on a vision of what human flourishing entails, so that we can determine whether the benefit to A from finding that he has a particular right against B outweighs the burden that B will incur if we find that A has such a right against B. I go on to argue that the vision of human flourishing that underlies the law’s practice in determining what rights we have against each other is a very familiar one – one that is widely prevalent in the West and best set out in the writings of John Finnis. I go on to criticise this account of human flourishing as radically defective, and explain what difference adopting a sounder view of what human flourishing entails would have on what rights we are recognised as having against other people.
I hope that this paper and the other two papers in the trilogy will eventually form the basis of a book, to be called The Humanity of Private Law.
Monday, August 25, 2014
Jason Solomon has posted two pieces to SSRN. First is a symposium introduction to The Civil Jury as Political Institution. The abstract provides:
More than two hundred years after the Seventh Amendment enshrined the civil jury right, the debate over the role of the civil jury in the United States continues unabated. But even as questions about the civil jury’s competence as an adjudicative institution continue, questions surrounding the civil jury’s justification and role as a political institution are under explored.
To explore these questions in contemporary society, the Bill of Rights Institute and Law Review at William & Mary Law School hosted a symposium on The Civil Jury as a Political Institution. For two days in February 2013, scholars from an array of disciplines gathered to consider the extent to which the civil jury played a meaningful role as a political institution historically, whether it still serves that purpose today and, if so, what measures can or should be taken to ensure its continuing significance.
This short essay is the introduction to the symposium issue of the William & Mary Law Review on this topic. The essay provides a brief summary and exploration of some of the themes that arose in the papers and during the discussion.
Second is Juries, Social Norms, and Civil Justice. The abstract provides:
At the root of many contemporary debates and landmark cases in the civil justice system are underlying questions about the role of the civil jury. In prior work, I examined the justifications for the civil jury as a political institution, and found them wanting in our contemporary legal system.
This Article looks closely and critically at the justification for the civil jury as an adjudicative institution and questions the conventional wisdom behind it. The focus is on tort law because the jury has more power to decide questions of law in tort than any other area of law. The Article makes three original contributions.
First, I undermine the claim that the breach question in negligence is inevitably one for the jury by revisiting a famous debate between Cardozo and Holmes about the possibility of judge-made rules around breach in tort. Second, I draw on social and cognitive psychology to question the conventional wisdom that juries applying general standards are ideally suited to identify and apply social norms. And third, I sketch a middle-ground approach on breach, which involves presumptive rules that defer to indicia of social norms such as statutes and regulations, custom, and the market.
In making the argument, this Article begins to point the way towards a tort system that recognizes the value of recourse but better serves rule-of-law values.
Friday, August 22, 2014
The paper is not yet available, but I want to advertise the forthcoming piece by Ken Abraham & Ted White for the Journal of Tort Law tribute to Jeffrey O'Connell. The abstract for Prosser and His Influence provides:
This Article focuses on the rhetorical strategies employed by William L. Prosser in presenting overviews of tort law doctrines in his celebrated Handbook of the Law of Torts, which was first published in 1941 and went through three additional editions between that date and 1971. We devote special attention to Prosser’s treatment of two relatively novel actions, intentional infliction of emotional distress and privacy, in which Prosser’s conceptualization of the elements and scope of each of the actions was influential in their adoption by numerous jurisdictions.
We also explore the sources of Prosser’s influence among his contemporaries in the legal profession in the three decades beginning in the 1940s. Prosser was unquestionably the leading torts scholar of his time: his Handbook was regarded as the authoritative torts treatise of his day, his Torts casebook was the most widely adopted in the nation, and he was the principal Reporter for the Second Restatement of Torts, which was first published in 1965. We survey the reaction of reviewers to the first edition of his treatise, which was uniformly favorable, serving to establish Prosser’s Handbook as the equivalent of a masterpiece. We also attempt to demonstrate, through a close reading of the paragraphs in which Prosser sought to make generalizations about tort doctrines, the way in which he sought to create an impression of doctrinal order that was not quite consistent with the cases he cited as support for his doctrinal propositions. Finally, we contrast the implicit criteria for scholarly visibility and influence under which Prosser forged his reputation with the quite different criteria operating in the contemporary legal academy, and seek to provide explanations for the origins of those sources of influence.
Update:: The draft is now available here.
Wednesday, August 20, 2014
Guido Calabresi (Yale, Second Circuit) has posted to SSRN A Broader View of the Cathedral: The Significance of the Liability Rule, Correcting a Misapprehension. The abstract provides:
Recent years have seen a resurgence of Torts viewed as a purely private legal arrangement: whether described in terms of compensatory justice — the right of an injured party to be made whole — or of redress for civil wrongs — the right of an injured person to get back at the one who injured him. These positions reject the approach of the system builders (to use Izhak Englard’s felicitous phrase), those who see torts as part of a legal-political-economic structure of a polity. This latter, “public,” view of torts has been dominant, at least since my first article, and Walter J. Blum and Harry Kalven’s answer to it, aptly titled "Public Law Perspectives on a Private Law Problem." It is of the relationship between these approaches, and of the inevitability of the public-law (and hence, in part, economic) view of torts that I wish to write today. In doing so, however, I mainly want to correct an error that many system builders have made: that is, of viewing the liability rule (in torts and in its cognates) as a “second best” way of mimicking markets when markets “will not work,” or “are not available.” I want to claim a more significant economic role for the liability rule, and hence for torts, than that. For reasons that will be clear in due course, I call this "A Broader View of the Cathedral."
Tuesday, August 19, 2014
Alex Long (Tennessee) has posted to SSRN The Forgotten Role of Consent in Defamation and Employment Reference Cases. The abstract provides:
As has been well documented, the fear of defamation suits and related claims leads many employers to refuse to provide meaningful employment references. However, an employer who provides a negative reference concerning an employee enjoys a privilege in an ensuing defamation action if the employee has consented to the release of information concerning the employee’s job performance. Thus, many attorneys now advise prospective employers to have applicants sign consent agreements, permitting the prospective employer to conduct an investigation into the applicant’s work history and releasing from liability anyone who provides information about the employee’s work history. The Restatement (Second) of Torts has been highly influential in shaping the development of the defense of consent in the defamation context. This article looks at the consent defense within the context of employment reference cases. Specifically, the article examines the consent defense as described in the Restatement from an historical perspective and argues that the authors fundamentally misstated the law in a manner that has had negative consequence for employees who have been the victims of defamatory references.
Monday, August 18, 2014
Catherine Harris (Wake Forest-Sociology) & Ralph Peeples (Wake Forest) have posted to SSRN Medical Errors, Medical Malpractice and Death Cases in North Carolina: The Impact of Demographic and System Variables. The abstract provides:
A Study of hospitals in North Carolina from January 2002 to December 2007 reports that there was no statistically significant decrease in medical errors during this period, in spite of efforts to reduce them (Landrigan et al. 2010). Our study utilizes a medical liability insurer's archive of death cases in North Carolina from 2002 to 2009 (156 cases involving 401 physician-defendants. Given the implications of medical error for health care delivery, we consider whether demographic variables (age, gender, marital status and race) and system variables (hospital involvement and number of physician-defendants) are predictive of higher risk of death. Our dependent variables are three major categories of error associated with patient death in the archive (diagnostic, treatment and surgical. We find that men are significantly more at risk for diagnostic errors. There is evidence that age and number of defendants is predictive of treatment errors. Policy implications are discussed.
Monday, August 11, 2014
Avi Dorfman (Tel Aviv) & Assaf Jacob (The Interdisciplinary Center Radziner School of Law) have posted to SSRN Trespass Revisited: Against the Keep-Off Theory of Property and for Owner-Responsibility. The abstract provides:
The conventional wisdom has it that a property owner assumes virtually no responsibility for guiding others in fulfilling their duties not to trespass on the former's property. In other words, the entire risk of making an unauthorized use of the property in question rests upon the duty-holders. This view is best captured by the Keep-Off picture of property, according to which the content of the duty in question is that of excluding oneself from a thing that is not one's own. In this article, we argue that this view is mistaken. We advance conceptual, normative, and doctrinal arguments to show that this account runs afoul of the actual workings of the tort in question. A more precise account of trespass to land will reveal that the tort gives rise to a hybrid regime of tort liability: one which combines considerations of fault along with those of strict liability. On the proposed account, therefore, an owner does assume some responsibility for guiding others in fulfilling the duty they owe the former.
Friday, August 8, 2014
Monday, August 4, 2014
Michael Frakes (Northwestern), Matthew Frank (Harvard student), & Seth Seabury (RAND) have posted to SSRN Do Physicians Respond to Liability Standards?. The abstract provides:
In this paper, we explore the sensitivity in the clinical decisions of physicians to the standards of care expected of them under the law, drawing on the abandonment by states over time of rules holding physicians to standards determined by local customs and the contemporaneous adoption of national-standard rules. Using data on broad rates of surgical interventions at the county-by-year level from the Area Resource File, we find that local surgery rates converge towards national surgery rates upon the adoption of national-standard rules. Moreover, we find that these effects are more pronounced among rural counties.
Tuesday, July 29, 2014
Of interest to TortsProfs is Evidence Matters: Science, Proof and Truth in the Law by Susan Haack (Miami), recently published by Cambridge University Press. The abstract provides:
Is truth in the law just plain truth – or something sui generis? Is a trial a search for truth? Do adversarial procedures and exclusionary rules of evidence enable, or impede, the accurate determination of factual issues? Can degrees of proof be identified with mathematical probabilities? What role can statistical evidence properly play? How can courts best handle the scientific testimony on which cases sometimes turn? How are they to distinguish reliable scientific testimony from unreliable hokum? The dozen interdisciplinary essays collected here explore a whole nexus of such questions about science, proof, and truth in the law. With her characteristic clarity and verve, in these essays Haack brings her original and distinctive work in theory of knowledge and philosophy of science to bear on real-life legal issues. She includes detailed analyses of a wide variety of cases and lucid summaries of relevant scientific work, of the many roles of the scientific peer-review system, and of relevant legal developments.
Hat tip Richard Wright.
John Oberdiek (Rutgers-Camden) has posted to SSRN Putting (and Keeping) Proximate Cause in Its Place. The abstract provides:
Before one can recover for an injury sounding in negligence, one must establish that the defendant more likely than not proximately caused the injury. That the positive law of negligence imposes this requirement is beyond controversy. What is more controversial is whether the requirement is conceptually and morally defensible. Michael Moore, singly as well as in tandem with Heidi Hurd, powerfully argues that it is neither. Specifically, Moore contends that the harm-within-the-risk test of proximate causation, despite its venerable history in tort law and reaffirmation in the latest Restatement, is “incoherent” and “morally undesirable.” It is bad enough, on Moore’s view, that negligence law bifurcates its causal inquiry, distinguishing as it does the question of actual causation from that of proximate causation, rather than pursuing a unified naturalistic inquiry into the substantiality of causal contribution. What is worse is that tort law can’t even get its own misguided causal inquiry half-right.
I do not share Moore’s jaundiced view of the harm-within-the-risk test of proximate cause – what I will call the “risk rule” for short. I begin by questioning his understanding of the risk rule as it figures in tort law, and go on to argue that neither his conceptual nor his moral criticism of the risk rule is decisive. In the course of rebutting Moore’s criticisms, I outline what I take to be the most compelling account of the risk rule in the law of torts. What emerges is a conception of proximate cause that is thoroughly moralized. Of course moral premises must be invoked to defend the risk rule’s moral merit, but, I argue, they must also be invoked to defend its conceptual coherence. In my view, the risk rule is both morally and conceptually sound.
Monday, July 28, 2014
Martha Chamallas (Ohio State) has posted to SSRN Two Very Different Stories: Vicarious Liability Under Tort and Title VII Law. The abstract provides:
Without much analysis, the U.S. Supreme Court has imported common law agency and tort principles to resolve issues of employer vicarious liability under Title VII. The story that emerges from the recent Title VII case law is one of similarity and continuity: the main theme is that Title VII is a statutory tort, making it seem appropriate to rely on longstanding common law agency principles to determine employer responsibility for the wrongful acts of their employees.
This article contests the prevailing narrative, arguing that it significantly downplays major differences in the structure and history of tort and Title VII claims. Borrowing from tort law is misguided because vicarious liability principles were never meant to govern claims by employees against their own employers. Instead, at common law, the infamous “fellow servant rule” insulated employers from tort liability in such suits, with vicarious liability coming into play only when injured third parties sought recovery. Unlike the dual liability scheme of tort law – which holds both the employer and the offending employee liable – Title VII claims may be brought only against the employer. The enterprise liability scheme of Title VII thus bears little resemblance to the prototypical vicarious liability structure in tort law.
The Supreme Court’s approach has lost sight of historical workers’ rights struggles which led to the enactment of comprehensive workers’ compensation statutes. By recasting Title VII as the second major intervention into the employer/employee relationship, this article tells a very different story – one of contrast and change – that would free Title VII vicarious liability doctrine from the strictures of the common law.
Thursday, July 24, 2014
The distinction between physical and emotional harm is fundamental. Legal disciplines from torts to constitutional law rely on the hierarchy that places bodily integrity over emotional tranquility. This hierarchy is now under attack by modern scientists and scholars. Neuroscientists have undermined the view that emotional harm is more subjective; social scientists have refuted the position that emotional harm is less impactful; and feminist scholars have undercut the view that these categories are gender neutral. Courts are taking notice, especially in tort law. Each new Restatement of Torts provides more avenues for plaintiffs to collect damages for emotional injuries.
This Article defends the relevance of the distinction between physical and emotional harm, especially in tort law, by offering theoretical justifications that are responsive to the modern criticisms. A new conception of the distinction should be based on a duty to reasonably regulate one’s own emotional health. This duty fits well within tort theories including law and economics, corrective justice, and civil recourse theory, and harmonizes with criminal law and First Amendment doctrines. Further, neuroscience, social science, and even feminist theory support this duty. A duty to maintain one’s own emotional well being can benefit both potential tort plaintiffs and defendants by incorporating normative ideals about identity, consent, autonomy, social justice, and social welfare. In advancing this emotional duty, this Article also provides sustainable definitions for physical and emotional harm that can survive changing technology and discusses the implications of a new understanding of the physical/emotional hierarchy for tort law.