Thursday, February 14, 2019
Wednesday, February 13, 2019
Charles Silver, David Hyman, and Bernard Black have posted to SSRN Fictions and Facts: Medical Malpractice Litigation, Physician Supply, and Health Care Spending in Texas Before and After HB 4. The abstract provides:
This article, written for a symposium issue of the Texas Tech Law Review, summarizes our research on the impact of Texas’ 2003 medical malpractice (“med mal”) reform. Our central findings include:
(1) there were no major changes in the frequency of med mal claims, payout per claim, total payouts, defense costs, or jury verdicts that can explain the spike in premiums for med mal liability insurance that occurred in Texas in the years before the 2003 reforms;
(2) Texas’ supply of direct patient care physicians grew steadily, at similar rates, in both the pre- and post-reform periods, despite politician’s claims that physicians fled Texas before reform and flocked back thereafter;
(3) although the damage caps adopted in Texas and other states greatly reduced the volume of malpractice litigation and payouts to patients, neither in Texas nor in other states have damage caps moderated the growth of health care spending;
(4) the savings in liability costs generated by the Texas reforms were shared between physicians and their insurers, with the former paying lower premiums and the latter collecting more premium dollars relative to dollars paid out on claims; and
(5) there is evidence that when liability rules are relaxed, hospital safety records gradually deteriorate.
Tuesday, February 5, 2019
Zenon Zabinski & Bernard Black have posted to SSRN The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform. The abstract provides:
We examine whether caps on non-economic damages in medical malpractice cases affect in-hospital patient safety. We use Patient Safety Indicators (PSIs) — measures of adverse events — as proxies for safety. In difference-in-differences (DiD) analyses of five states that adopt caps during 2003-2005, we find that patient safety gradually worsens after cap adoption, relative to control states. Standard DiD inference can be unreliable with a small number of treated units. We therefore develop a randomization inference-based test for DiD statistical inference with few treated units but multiple, potentially correlated outcomes, and confirm statistical strength with this nonparametric approach.
Thursday, January 31, 2019
Dorit Rubinstein Reiss & John Diamond have posted to SSRN Measles and Misrepresentation in Minnesota: Can There be Liability for Anti Vaccine Misinformation that Causes Bodily Harm?. The abstract provides:
Balancing protecting and compensating victims of harmful fake news and protecting freedom of speech and the information flow is both important and challenging. Vaccines are one area where misinformation can directly cause harm. When misrepresentation leads people to refuse vaccines, disease outbreaks can happen, causing harms, even deaths, and imposing costs on the community. The tort of negligent misrepresentation that causes physical harm appears a custom-made remedy for those affected. However, courts – appropriately – narrowed the tort to protect freedom of speech and the flow of information. This article uses an especially egregious example of anti-vaccine misrepresentation to examine the boundaries of the tort. In 2017, a measles outbreak in Minnesota sickened tens of people, mostly young children of the Somali community in Minneapolis, and hospitalized over twenty young children. The outbreak can be clearly linked to efforts by anti-vaccine groups to target the Somali community and convince its members that the measles, mumps, rubella vaccine (MMR) causes autism – a claim countered by extensive evidence. Using this case, the article examines under what circumstances promoters of misinformation can be held liable for negligent misrepresentation, suggesting a distinction between counseling-like situations and purely public speech, and between types of communications.
Tuesday, January 29, 2019
Yesterday the American Law Institute announced the approval of 3 projects that will conclude the Restatement (Third) of Torts, began back in the 1990s with Products Liability. The three projects are:
Defamation and Privacy; Reporters Lyrissa Lidsky & Robert C. Post
Remedies; Reporter Douglas Laycock
Concluding Provisions; Reporters Nora Freeman Engstrom, Mike Green, and Bill Powers; Associate Reporter Mark Hall
The press release is here: Download Torts-Release-Final
Monday, January 28, 2019
Alex Long has posted to SSRN Abolishing the Suicide Rule. The abstract provides:
Suicide is increasingly recognized as a public health issue. There are over 40,000 suicides a year in the U.S., making suicide the tenth-leading cause of death in the country. But societal attitudes on the subject remain decidedly mixed. Suicide is often closely linked to mental illness, a condition that continues to involve stigma and often triggers irrational fears and misunderstanding. For many, suicide remains an immoral act that flies in the face of strongly held religious principles. In some ways, tort law’s treatment of suicide mirrors the conflicting societal views regarding suicide. Tort law has long been reluctant to permit recovery in a wrongful death action from a defendant who is alleged to have caused the suicide of the decedent. In many instances, courts apply a strict rule of causation in suicide cases that has actually been dubbed “the suicide rule” in one jurisdiction. While reluctance to assign liability to defendants whose actions are alleged to have resulted in suicide still remains the norm in negligence cases, there has been a slight trend among court decisions away from singling out suicide cases for special treatment and toward an analytical framework that more closely follows traditional tort law principles. This Article argues that this trend is to be encouraged and that it is time for courts to largely abandon the special rules that have developed in suicide cases that treat suicide as a superseding cause of a decedent’s death.
Friday, January 25, 2019
Friday, January 18, 2019
Anita Bernstein has published The Common Law Inside the Female Body with Cambridge University Press. The blurb provides:
In The Common Law Inside the Female Body, Anita Bernstein explains why lawyers seeking gender progress from primary legal materials should start with the common law. Despite its reputation for supporting conservatism and inequality, today's common law shares important commitments with feminism, namely in precepts and doctrines that strengthen the freedom of individuals and from there the struggle against the subjugation of women. By re-invigorating both the common law - with a focus on crimes, contracts, torts, and property - and feminist jurisprudence, this highly original work anticipates a vital future for a pair of venerable jurisprudential traditions. It should be read by anyone interested in understanding how the common law delivers an extraordinary degree of liberty and security to all persons - women included.
Thursday, January 17, 2019
Sarah Swan has posted to SSRN Preempting Plaintiff Cities. The abstract provides:
Within the city-state relationship, states hold an enormous amount of power. Recently, states have been using that power to pass extremely aggressive preemption laws that prohibit cities’ regulatory efforts on many fronts. These new preemption laws most commonly occur in the context of red states limiting the regulatory scope of blue cities, inflaming those already tense city-state relationships and cutting into what many view as the appropriate scope of local autonomy.
But despite this intense clash in the regulatory sphere, when we move away from the world of city regulation and toward the world of city litigation, things look surprisingly different. Although cities have been bringing forward hundreds of quite controversial claims against corporate wrongdoers for harms ranging from the subprime mortgage crisis to the opioid epidemic, such plaintiff city litigation has provoked relatively little state hostility. States have not ratcheted up their response to this exercise of city power in at all the same way as they have for regulation. Rather, states have shown a remarkably limited appetite for preempting plaintiff city litigation.
What accounts for these differing responses? Three main factors are likely in play. First, while regulatory preemption is largely the result of intense political polarization, states have historically viewed litigation against corporate wrongdoers in less partisan terms. Both blue and red states have themselves engaged in this type of litigation, and there is thus an institutional tradition of flexibility in this context. Second, and relatedly, the issues at the heart of plaintiff city litigation are often not as politically divisive as those at the heart of the preempted regulations. Harms like lead paint poisoning and the opioid epidemic have attracted widespread condemnation, while many of the regulation preemption subjects remain hotly contested. Finally, unlike regulation, litigation is not an obvious instrument of governance. It has unpredictable outcomes, it is not an exclusively governmental power, and it relies on existing law.
Since plaintiff city litigation operates mostly outside of state crosshairs, it can provide a space for cities looking to pursue progressive goals. Plaintiff city litigation may not achieve the same immediate governance goals as regulation, but it does have significant political benefits for cities and their residents. Thus, even in an era of rampant regulatory preemption and deep political animosity between cities and states, plaintiff city litigation presents a viable parallel track for cities to continue their pursuit of urban social justice. Although such litigation does not directly address the contentious issues forming the basis of regulatory battles, it does offer a means of protecting vulnerable communities and advancing goals of democratic equality in other ways.
Wednesday, January 16, 2019
Prosser Award winner Ken Simons has posted to SSRN The Crime/Tort Distinction: Legal Doctrine and Normative Perspectives. The abstract provides:
This essay provides an overview of the crime/tort distinction. It first investigates some of the fundamental differences between criminal law and tort law in doctrine and legal structure. It then explores some important similarities and differences in normative perspectives between the two doctrinal fields. This typology should prove analytically useful for examining some of the specific issues at the borderline of crime and torts — such as the proper scope of punitive damage liability and the question whether criminal law as well as tort law should vary legal sanctions simply because of the fortuitous occurrence of harm.
This is a piece he wrote for a symposium here at Widener.
Tuesday, January 15, 2019
Ken Oliphant, Zhang Pinghua, & Lei Chen have edited The Legal Protection of Personality Rights: Chinese and European Perspectives. The abstract provides:
This book aims to investigate the way in which personality rights are protected in China through a comparative and cross-cultural lens drawing on perspectives from Europe and elsewhere in the world. Currently, the question whether or not to incorporate a special law on personal rights – the right to life, the right to health, and the rights to reputation and privacy – into a future Chinese Civil Code is heatedly debated in the Chinese legal community. The essential topics that are addressed in this book include general issues of personality rights, personality rights in Constitutional law, personality rights in private law, the legislative development of personality rights in China, case studies of the right to privacy, personality rights in the mass media and the internet, competition law aspects of the right of publicity, the protection of patients’ personal information, and personality rights in the family context. The book offers a broad investigation of personality rights protection in both China and Europe and provides the first substantive comparison of the Chinese and European regimes. The project is conceived as a joint effort on the part of a carefully chosen team of Chinese and European academics, working closely together. The team consists of both senior scholars and young researchers led by well-known experts in the field of comparative tort law.
Thursday, January 10, 2019
Johann Neethling & J.M. Potgieter have posted to SSRN Delictual Liability of a Municipality for the Rape of a Mentally Disabled Woman --Bridgman v. Witzenberg Municipality. The abstract provides:
An 18-year-old woman (L) with a mental disability (she functioned cognitively at the level of a 6 to 8 year old child) was abducted and raped by three youths at the Pine Forest Holiday Resort in Ceres, Western Cape (South Africa), where she was staying with her adoptive parents. The resort was owned, managed and controlled by the defendant, the Witzenberg Municipality (the Municipality). The plaintiff, in his capacity as the curator ad litem of L, instituted an action against the Municipality, claiming damages arising from injuries suffered by L as a consequence of the rape. He submitted that the rape was caused by the negligent omissions and conduct of the Municipality. The Municipality denied that it had been negligent. In the alternative it argued that, if it had been negligent, the rape had been caused partly through its own negligence, and partly through the negligence of L’s parents.
Thursday, January 3, 2019
Richard Wright has posted to SSRN Haack on Legal Proof. The abstract provides:
In this paper, I discuss and agree with Susan Haack’s illuminating discussion and constructive critique of the current confusion regarding required evidence and the related standards of proof in the law, focusing especially on mathematical probability rather than warranted belief interpretations of those standards. However, I question Haack’s claim that statistical evidence is relevant not only for establishing the existence of a causal process but also, although usually insufficient by itself, for proving actual causation in a specific case.
Wednesday, January 2, 2019
Alexander Lemann has posted to SSRN The Assumption of Flood Risk. The abstract provides:
2017 was the costliest year for flood damage in American history. Somewhat fortuitously, the beleaguered National Flood Insurance Program came up for reauthorization just as the country was bearing the brunt of Hurricanes Harvey, Irma, and Maria. With the program at its borrowing limit and facing the prospect of being unable to pay claims, Congress punted on the question of long-term reform by forgiving its past debt and extending its reauthorization deadline. That deadline has since been extended seven more times, with little substantive discussion of the widely-felt need for reform.
Scientists expect a warmer climate to cause more intense rainfall, more powerful hurricanes, and higher sea levels, all of which will significantly worsen the flood risk we face. Meanwhile, many see federal policy as failing to encourage sustainable development. Indeed, the dominant view of experts is that programs like the NFIP have made the problem worse, by insulating property owners from the effects of storms and thus artificially inflating the value of flood-prone real estate. This viewpoint, however, assumes that the purpose of federal policy in this area should be to incentivize some objectively optimal level of exposure to the risk of floods. The behavior of policymakers, on the other hand, strongly suggests that this utilitarian approach to the problem is not the only — or even the default — way of thinking about our exposure to risk.
Drawing on tort doctrine, and particularly the defense of assumption of risk, I argue that there is instead a set of deeply moral instincts underlying our response to flood risk. The doctrine of assumption of risk assigns responsibility for the realization of risks not when our decisions to confront them are objectively rational, but rather when they are made freely, with meaningful knowledge of the risk and a choice of whether to accept it. These ideas, I argue, can already be detected in the rate structure of the NFIP, and yet they are largely ignored in the broader policy debate about how best to share the burden of flood risk. If tort law represents a distillation and application of our common moral intuitions about risk and responsibility, it can shed light on how this complex problem should be resolved.
Friday, December 21, 2018
Jenny Wriggins has posted to SSRN Domestic Violence and Gender Equality: Recognition, Remedy, and (Possible) Retrenchment. The abstract provides:
This paper is based on the author's presentation at the gender equality symposium. Professor Wriggins connects domestic violence and gender equality before turning to some significant reforms of the U.S. legal system concerning domestic violence-all of them relatively recent. Moving on, she discusses her reflections on the 12-year law practice that informs her expertise before becoming a law professor and also her long involvement in the movement for LGBTQ equality. Drawing on that experience, Professor Wriggins shares firsthand views of some of the consequences of not having legal protections. Outlining some of the shortcomings and critiques of the reforms, she finally turns to the future-what the law would be wise to anticipate and to do.
Friday, December 14, 2018
Thursday, December 13, 2018
Steven Shavell has posted to SSRN The Mistaken Restriction of Strict Liability to Uncommon Activities. The abstract provides:
Courts generally insist that two criteria be met before imposing strict liability. The first--that the injurer’s activity must be dangerous -- is sensible because strict liability possesses general advantages in controlling risk. But the second -- that the activity must be uncommon -- is ill-advised because it exempts all common activities from strict liability no matter how dangerous they are. Thus, the harm generated by the large swath of common dangerous activities -- from hunting, to construction, to the transmission of natural gas -- is inadequately regulated by tort law. After developing this theme and criticizing ostensible justifications for the uncommon activity requirement, the article addresses the question of how it arose. The answer is that its legal pedigree is problematic: it appears to have been invented by the authors of the first Restatement of Torts. The conclusion is that the uncommon activity requirement for the imposition of strict liability should be eliminated.
Friday, December 7, 2018
Richard Wright has posted to SSRN Allocating Liability Among Multiple Responsible Causes: Principles, Rhetoric and Power. The abstract provides:
In Part II of this paper, I discuss the principles underlying just allocation of liability among the multiple responsible causes of an indivisible injury. I argue that those principles support either (1) the standard method adopted by almost all courts, according to which the plaintiff's claim for compensation is reduced by her percentage of comparative responsibility if she was contributorily negligent, those who wrongfully contributed to the plaintiff's injury are each held fully (solidarily) liable for the plaintiff's possibly reduced claim, and the wrongdoers who pay the plaintiff are able to maintain contribution actions against the other wrongdoers based on their comparative responsibility, or (2) a modification of the standard method which would allow the wrongdoers who pay the plaintiff to have a contributorily negligent plaintiff share in bearing the portion of damages that are uncollectible from other wrongdoers. The various proportionate liability rules adopted by the legislatures in many states (but not the federal government) in the United States and (for injuries other than to the plaintiff's person) by all the Australian states are neither justifiable nor fair.
In Part III, I explain and criticize the rhetorical arguments used by the defense advocates to attempt to convince judges (unsuccessfully) and legislators (successfully) that replacing solidary liability with proportionate liability is necessary to be consistent with the common law and allocation of liability consistent with each person's individual responsibility.
In Part IV, I describe (1) the primary role played by recurrent cycles of "soft" and "hard" liability insurance markets, made possible by lack of proper regulation of the insurance industry, in creating recurrent liability insurance crises, (2) the successful effort of the insurance industry and other defense interests to portray tort liability rather than the flaws in the liability insurance market as the cause of the recurrent liability insurance crises in order to promote "tort reform" while avoiding needed regulation of the insurance industry, and (3) the recurrent failure of the enacted "tort reforms" to provide the promised reduction or moderation in liability insurance premiums.
Friday, November 30, 2018
The respondeat superior (vicarious liability) standard by which courts hold corporations liable for the crimes of their employees has been widely criticized as being overly inclusive insofar as it punishes fault-less entities. Less acknowledged is that, due to its requirement that the employee have intended in part to benefit the corporation, the standard is also under inclusive in cases of sexual violence facilitated by a corporate entity. This article argues that, to solve these problems within the criminal law, we should learn from their parallel development in the sphere of tort law, from which respondeat superior was derived in the first place. No comprehensive effort has yet been made to examine how courts have, in tort respondeat superior, addressed the problems of over- and under-inclusiveness that emerge in that realm. In light of the lessons revealed in the tort case law, I argue that criminal respondeat superior should apply only where the government can show 1.) an omission by the corporation to take reasonable steps to prevent a crime; 2.) that the substantial risk of such a crime was objectively foreseeable to a reasonable person undertaking the corporation’s enterprise and 3.) that such a crime occurred, regardless of whether or not any individual employee had the intent to benefit the corporation.
Wednesday, November 21, 2018
Maria Guadalupe Martinez Alles has posted to SSRN Tort Remedies as Meaningful Responses to Wrongdoing. The abstract provides:
Tort theorists’ unceasing efforts to draw a clear-cut line between tort law (i.e., private law) and criminal law (i.e., public law) has cabined the understanding of tort remedies as private responses to wrongdoing which are predominantly compensatory. The practice of awarding additional damages contradicts this view. It indicates that in fact tort remedies represent substantive responses to wrongdoing that may involve private and public aspects which may or may not be compensatory. An example of this mismatch between practice and theory is observable in the dialogue between court decisions and scholars where it is openly acknowledged that the practice of awarding damages in tort cases actually represents punitive motives that judges camouflage under classic compensatory labels and the correlative reaction by tort theorists who counter with arguments for a reduction-to-compensation approach to those punitive elements. Against this backdrop, I argue in this article that, in order to properly channel tort victims’ substantive responses to wrongdoing, the time is ripe for revising the classic private understanding of tort remedies to take into account not only the central role of holistic considerations of the circumstances of the wrongdoing and the significance and meaning that the wrongdoing holds for the private parties in tort cases, but also the advantages of providing victims with a legitimate avenue for voicing the private and public values affected by the particular instances of wrongdoing.