Digital Commons Network^™

Cold Comfort Pharmacy: Pharmacist Tort Liability For Conscientious Refusals To Dispense Emergency Contraception, Kristen Marttila Gast

ExpressO

The past several years have seen an increasing number of pharmacists refuse to dispense emergency contraception, an effective, post-coital form of contraception, on the grounds that the drug violates their personal beliefs. This Article addresses the impact of those pharmacist refusals under existing principles of tort law. The Article draws on existing pharmacy case law, state-specific refusal clauses, and ethics statements promulgated by professional pharmacy associations to investigate whether pharmacists have a legal duty to dispense emergency contraception, notwithstanding religious or ethical objections. Concluding that in most states, such a legal duty does exist, the Article develops a “wrongful conception” …

New Differences Between Negligence And Strict Liability And Their Implications On Medical Malpractice Reform, Noam Sher

ExpressO

The present article seeks to explore previously undiscussed differences between the negligence and strict liability rules and thereby examine the required medical liability reform, if such reform is indeed required. Our main thesis is that negligence as a basis for liability entails a unique mechanism, which is essentially different than the strict liability mechanism, and is more efficient for several reasons, related to the legal function of resolving partial information problems which cause partial failure in the healthcare market. Among other things, the negligence mechanism (1) motivates the parties to a potential damages claim to invest in information gathering; (2) …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger

ExpressO

This article contributes to the broad debate over “adaptive preferences” in law, economics, and political philosophy by addressing an important ongoing controversy in tort law. Hedonic damages compensate for the lost enjoyment of life that results from a tortious injury. Lawyers seeking hedonic damages in personal injury cases emphasize their clients’ new status as compromised and damaged persons, and courts frequently uphold jury verdicts awarding hedonic damages to individuals who experienced disabling injuries based on a view that disability necessarily limits one’s enjoyment of life. This view is consonant with a general societal understanding of disability as a tragedy and …

Protecting Rights Or Waiving Them? Why 'Negotiated Risk' Should Be Removed From Assisted Living Law, Eric M. Carlson

ExpressO

Assisted living facilities claim that negotiated risk agreements give residents the freedom to act against facility advice. On the contrary, negotiated risk was proposed originally to waive a facility’s liability for inadequate care, and liability waiver remains a significant component of negotiated risk.

This Article offers the first detailed legal analysis of state negotiated risk laws. Due to negotiated risk’s dueling definitions – based either on the against-facility-advice scenario or the inadequate care scenario – state law is marked by ambiguity and inconsistency. Currently, fifteen states address negotiated risk in law, and an additional state has developed a standardized negotiated …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Vioxx: How Strong Is The Case Against Merck?, Jason M. Weigand

ExpressO

The thousands of personal injury cases filed after Merck’s voluntary withdrawal of Vioxx appear difficult to prove. A large obstacle for plaintiffs is the admissibility of epidemiologic studies, which are required to prove specific causation. Pharmaceutical companies spend countless hours and resources developing and researching new drugs. Clinical research began to indicate that there may be an increase in adverse cardiovascular (“CV”) side effects associated with Vioxx. The reliability of this data and how it will work in our courts is a great concern.

“It’S The [Tort System], Stupid:” Consumer Deductibles; How To More Equitably Distribute The Risks Of Medical Malpractice And Adequately Compensate Victims Without Statutory Damage Caps., Bradford Luke Ledbetter

ExpressO

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Learning The Wrong Lessons From "An American Tragedy": A Critique Of The Berger-Twerski Informed Choice Proposal, David E. Bernstein

George Mason University School of Law Working Papers Series

This paper is a critique of Margaret Berger and Aaron Twerski, “Uncertainty and Informed Choice: Unmasking Daubert”, forthcoming the Michigan Law Review. Berger and Twerski propose that courts recognize a cause of action that would allow plaintiffs who claim injury from pharmaceutical products, but who do not have sufficient evidence to prove causation, to recover damages for deprivation of informed choice. Berger and Twerski claim inspiration from the litigation over allegations that the morning sickness drug Bendectin caused birth defects. Considering the criteria Berger and Twerski suggest for their proposed cause of action in the context of Bendectin, it appears …

Soft Regulators, Tough Judges, Gerrit De Geest, Giuseppe Dari-Mattiacci

George Mason University School of Law Working Papers Series

Judges have a tendency to be more demanding than regulators. In the United States, a majority of the courts has adopted the rule that the unexcused violation of a statutory standard is negligence per se. However, the converse does not hold: compliance with regulation does not relieve the injurer of tort liability. In most European legal systems, the outcome is similar. We use a framework in which, on the one hand, the effects of tort law are undermined by insolvency and evidence problems and, on the other hand, regulation is expensive in terms of monitoring and information gathering. We show …

Organizational Misconduct: Beyond The Principal-Agent Model, Kimberly D. Krawiec

ExpressO

This article demonstrates that, at least since the adoption of the Organizational Sentencing Guidelines in 1991, the United States legal regime has been moving away from a system of strict vicarious liability toward a system of duty-based organizational liability. Under this system, organizational liability for agent misconduct is dependant on whether or not the organization has exercised due care to avoid the harm in question, rather than under traditional agency principles of respondeat superior. Courts and agencies typically evaluate the level of care exercised by the organization by inquiring whether the organization had in place internal compliance structures ostensibly designed …

Disappearing Defendants V. Judgment Proof Injurers: Upgrading The Theory Of Tort Law Failures, Giuseppe Dari-Mattiacci, Barbara Mangan

George Mason University School of Law Working Papers Series

Do injurers’ insolvency and victims’ reluctance to sue affect accident prevention in the same way? Are these circumstances less of a problem under the negligence rule than under strict liability? We argue, contrary to the literature, that the answer is, in most cases, negative and make three main points. First, the judgment proof problem and the disappearing defendant problem are shown to have different effects on injurers’ behavior and hence yield dissimilar levels of social welfare. Second, when these two problems occur simultaneously they may have offsetting effects. Third, the negligence rule is superior to strict liability only under some …

Soft Negligence And Cause In Fact: A Comment On Ganuza And Gomez, Giuseppe Dari-Mattiacci

George Mason University School of Law Working Papers Series

Lowering the standard of negligence below the first-best socially optimal level has been shown by Ganuza and Gomez (2004) to increase the level of care taken by judgment proof injurers. In this paper, I consider a more complex model of negligence in which cause in fact is taken into account, and I show that this conclusion holds when the injurer’s care reduces the magnitude of the accidental harm but not when the injurer’s care reduces the probability of the accident. Thus, such soft negligence strategies aimed at tackling the adverse effects of judgment proofness need to be conditioned to the …

Mandatory Recall Authority: A Sensible And Minimalist Approach To Improving Food Safety, Michael T. Roberts

ExpressO

No abstract provided.

The Poor State Of Health Care Quality In The U.S.: Is Malpractice Liability Part Of The Problem Or Part Of The Solution?, Charles Silver

ExpressO

The belief that malpractice lawsuits impede efforts to improve health care quality by encouraging providers to hide mistakes is the conventional wisdom among patient safety advocates and scholars. It also provides the normative basis for efforts currently proceeding at the state and federal levels to curtail medical malpractice exposure. Groups pressing for tort reform, including the American Medical Association, contend that when doctors and other providers are insulated from liability, patients will be better protected from harm.

This article canvasses the evidence bearing on the connection between malpractice exposure and health care quality. Some of this evidence, such as the …

A Family Affair: Sharing Information About Genetic Diseases, Lyria K. Bennett Moses

ExpressO

Genetic test results provide information relevant to the future health of the person tested as well as parents, siblings, children and more distant relatives. This Article examines the legal consequences that might follow a decision to share or withhold genetic information. It argues that the obstacles to liability might not be justified in situations where either disclosure of genetic information or silence will cause significant harm.