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Law Library Blog (November 2023): Legal Beagle's Blog Archive, Roger Williams University School Of Law

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No abstract provided.

Uncertainty > Risk: Lessons For Legal Thought From The Insurance Runoff Market, Tom Baker

All Faculty Scholarship

Insurance ideas inform legal thought: from tort law, to health law and financial services regulation, to theories of distributive justice. Within that thought, insurance is conceived as an ideal type in which insurers distribute determinable risks through contracts that fix the parties’ obligations in advance. This ideal type has normative appeal, among other reasons because it explains how tort law might achieve in practice the objectives of tort theory. This ideal type also supports a restrictive vision of liability-based regulation that opposes expansions and supports cutbacks, on the grounds that uncertainty poses an existential threat to insurance markets.

Prior work …

Compensation, Commodification, And Disablement: How Law Has Dehumanized Laboring Bodies And Excluded Nonlaboring Humans, Karen M. Tani

All Faculty Scholarship

This essay reviews Nate Holdren's Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge University Press, 2020), which explores the changes in legal imagination that accompanied the rise of workers' compensation programs. The essay foregrounds Holdren’s insights about disability. Injury Impoverished illustrates the meaning and material consequences that the law has given to work-related impairments over time and documents the naturalization of disability-based exclusion from the formal labor market. In the present day, with so many social benefits tied to employment, this exclusion is particularly troubling.

The First Amendment And The Right(S) Of Publicity, Jennifer E. Rothman, Robert C. Post

All Faculty Scholarship

The right of publicity protects persons against unauthorized uses of their identity, most typically their names, images, or voices. The right is in obvious tension with freedom of speech. Yet courts seeking to reconcile the right with the First Amendment have to date produced only a notoriously confused muddle of inconsistent constitutional doctrine. In this Article, we suggest a way out of the maze. We propose a relatively straightforward framework for analyzing how the right of publicity should be squared with First Amendment principles.

At the root of contemporary constitutional confusion lies a failure to articulate the precise state interests …

Accountability, Eugenics, And Reproductive Justice, Susan Frelich Appleton

Scholarship@WashULaw

This analysis contributes to an online symposium on Dov Fox’s book BIRTH RIGHTS AND WRONGS: HOW MEDICINE AND TECHNOLOGY ARE CHANGING REPRODUCTION AND THE LAW. Using eugenics and reproductive justice as points of departure, this review highlights both strengths and weaknesses in Fox’s approach.

Environmental Pollution Control In Singapore: The Intersection Of Torts, Statutes, Regulations And Community Norms, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

Singapore is a land-scarce, densely populated, urbanized and technology-driven society. Despite her image as a clean and green environment, serious challenges remain to keep environmental pollution at bay. Both private and public laws, whether based on statutes or common law, as well as a host of regulations and community norms collectively regulate environmental pollution in Singapore. Statutory provisions targeting environmental pollution rely on criminal punishment, administrative measures and also compensatory damages awarded to victims in the event of breaches of specified statutory duties. The Environmental Pollution Control Act 1999, together with the implementing subsidiary legislation, seeks to minimise or mitigate …

Tort Law, Amirthalingam Kumaralingam, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

There were over 40 torts cases in 2019, of which just over half involved the tort of negligence. Unlike previous years, this year's review will deal only with the ten most significant judgments. A full list of torts cases is included at the end of this chapter for the convenience of readers. Of the ten cases, not surprisingly, five of them are claims in negligence. Of these, three involve medical negligence and two involve negligent misrepresentation causing economic loss. The remaining cases relate to claims under the tort of conspiracy, defamation, fraud (or deceit), malicious falsehood as well as nuisance …

How Liability Insurers Protect Patients And Improve Safety, Tom Baker, Charles Silver

All Faculty Scholarship

Forty years after the publication of the first systematic study of adverse medical events, there is greater access to information about adverse medical events and increasingly widespread acceptance of the view that patient safety requires more than vigilance by well-intentioned medical professionals. In this essay, we describe some of the ways that medical liability insurance organizations contributed to this transformation, and we catalog the roles that those organizations play in promoting patient safety today. Whether liability insurance in fact discourages providers from improving safety or encourages them to protect patients from avoidable harms is an empirical question that a survey …

Protecting One's Own Privacy In A Big Data Economy, Anita L. Allen

All Faculty Scholarship

Big Data is the vast quantities of information amenable to large-scale collection, storage, and analysis. Using such data, companies and researchers can deploy complex algorithms and artificial intelligence technologies to reveal otherwise unascertained patterns, links, behaviors, trends, identities, and practical knowledge. The information that comprises Big Data arises from government and business practices, consumer transactions, and the digital applications sometimes referred to as the “Internet of Things.” Individuals invisibly contribute to Big Data whenever they live digital lifestyles or otherwise participate in the digital economy, such as when they shop with a credit card, get treated at a hospital, apply …

Tort Law, Kumaralingam Amirthalingam, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

The plaintiff in Tan Bee Hock v F G Builders Pte Ltd was riding a motorbike when he skidded on a metal plate placed by the defendantat the entrance to a condominium. The plaintiff sued for his injuries in negligence, nuisance, and breach of statutory duty. On the facts, Kannan Ramesh JC (as his Honour then was) found that there was nothing unsafe about the metal plate and dismissed the claims in nuisance and negligence. Having found that the defendants had not done anything unsafe, Ramesh JC also dismissed the breach of statutory duty action, and in doing so, observed …

Tort Law [2015], Kumaralingam Amirthalingam, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

No abstract provided.

Accessory Liability In Tort And Equity, Pey Woan Lee

Research Collection Yong Pung How School Of Law

Unlike the position in criminal law, there does not currently exist a general doctrine of accessory liability in civil law. Thus, a person may be liable as an accessory in equity for dishonestly assisting with a breach of trust, but there is no tort for dishonest assistance. Rather, one who participates in another's tort will only be liable if he is a joint tortfeasor acting pursuant to a common design with the primary tortfeasor. This article examines the reasons for this divergence and evaluates the case for their assimilation. It observes that, contrary to common perception, the scope of participatory …

Medicare Secondary Payer And Settlement Delay, Eric Helland, Jonathan Klick

All Faculty Scholarship

The Medicare Secondary Payer Act of 1980 and its subsequent amendments require that insurers and self-insured companies report settlements, awards, and judgments that involve a Medicare beneficiary to the Centers for Medicare and Medicaid Services. The parties then may be required to compensate CMS for its conditional payments. In a simple settlement model, this makes settlement less likely. Also, the reporting delays and uncertainty regarding the size of these conditional payments are likely to further frustrate the settlement process. We provide results, using data from a large insurer, showing that, on average, implementation of the MSP reporting amendments led to …

Compensating The Victims Of Japan’S 3-11 Fukushima Disaster, Eric A. Feldman

All Faculty Scholarship

Japan’s March 2011 triple disaster—first a large earthquake, followed by a massive tsunami and a nuclear meltdown—caused a devastating loss of life, damaged and destroyed property, and left hundreds of thousands of people homeless, hurt, and in need. This article looks at the effort to address the financial needs of the victims of the 3/11 disaster by examining the role of public and private actors in providing compensation, describing the types of groups and individuals for whom compensation is available, and analyzing the range of institutions through which compensation has been allocated. The story is in some ways cause for …

Tort Law, Kumaralingam Amirthalingam, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

Teo Wei Hsin Lawrence (Zhang Weixin), Tin Yan Ying Geraldine (Cheng Yanying Geraldine) v Management Corporation Strata Title Plan No 1525 [2014] SGDC 350 involved a suit by the owners of a condominium unit (the plaintiffs) against the management corporation of the development (the defendant). Three months after purchasing the unit, the plaintiffs undertook renovation works which were completed after about five months. Prior to moving in, the plaintiffs discovered mould on the interior walls and on their new cabinets located at the rear end of the unit. As the unit was in the corner of the development, the outside …

Catalogs, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become a …

The Costs Of Changing Our Minds, Nita A. Farahany

Faculty Scholarship

This isn’t quite a draft yet – it’s a concept paper. You’ll see after the first 10 pages a good bit of text in brackets, which are primarily notes for me, but it’ll give you a sense of the content of those sections. I’d like to talk through the concept – the “duty” to mitigate emotional distress damages and how courts have struggled with it, as a foray into a broader dichotomy that I see in a number of areas of law that suggest an implicit value in “cognitive liberty.” This is a smaller version of a broader book project …

An Empirical Analysis Of Cost Recovery In Superfund Cases: Implications For Brownfields And Joint And Several Liability, Howard F. Chang, Hilary Sigman

All Faculty Scholarship

Economic theory developed in the prior literature indicates that under the joint and several liability imposed by the federal Superfund statute, the government should recover more of its costs of cleaning up contaminated sites than it would under nonjoint liability, and the amount recovered should increase with the number of defendants and with the independence among defendants in trial outcomes. We test these predictions empirically using data on outcomes in federal Superfund cases. Theory also suggests that this increase in the amount recovered may discourage the sale and redevelopment of potentially contaminated sites (or “brownfields”). We find the increase to …

Tortifying Retaliation: Protected Activity At The Intersection Of Fault, Duty, And Causation, Deborah L. Brake

Articles

In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court broke its string of plaintiff victories in the eight retaliation cases it has decided since 2005. In its 2013 decision in that case, the Court rejected a mixed motive framework for Title VII’s retaliation provision, a part of the statute that Congress did not amend in 1991 when it adopted the motivating factor standard for proving discrimination under Title VII. For help construing what “because of” means in the retaliation claim, the Court looked to tort law, which it read as requiring plaintiffs to prove but-for causation …

The Obligatory Structure Of Copyright Law: Unbundling The Wrong Of Copying, Shyamkrishna Balganesh

All Faculty Scholarship

No abstract provided.

The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen

Articles

This Article starts with a puzzle: Why is the doctrinal approach to “proximate cause” so resilient despite longstanding criticism? Proximate cause is a particularly extreme example of doctrine that limps along despite near universal consensus that it cannot actually determine legal outcomes. Why doesn’t that widely recognized indeterminacy disable proximate cause as a decision-making device? To address this puzzle, I pick up a cue from the legal realists, a group of skeptical lawyers, law professors, and judges, who, in the 1920s and 1930s, compared legal doctrine to ritual magic. I take that comparison seriously, perhaps more seriously, and definitely in …

Tort Law, Kumaralingam Amirthalingam, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

The Court of Appeal decision in Chan Cheng Wah v Koh Sin Chong Freddie and another appeal [2012] 1 SLR 506 ("Chan Cheng Wah (CA)") concerned the nature of defamatory meaning and the defences of justification and qualified privilege. The dispute arose from two allegedly defamatory statements published in the minutes of meeting of a management committee of a club ("current MC") concerning the actions of the previous management committee ("previous MC"). Four members of the previous MC sued the defendant, the president of the current MC, in respect of the statements.

The Shifting Terrain Of Risk And Uncertainty On The Liability Insurance Field, Tom Baker

All Faculty Scholarship

Recent sociological and historical work suggests that insurance risks often are not reliably calculable, except in hindsight. Insurance is “an uncertain business,” characterized by competition for premiums that pushes insurers into the unknown. This essay takes some preliminary steps that extend this insight into the liability insurance field. The essay first provides a simple quantitative comparison of U.S. property and liability insurance premiums over the last sixty years, setting the stage to make three points: (1) liability insurance premiums have grown at a similar rate as property insurance premiums and GDP over this period, providing yet another piece of evidence …

Tort Law, Kumaralingam Amirthalingam, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

The three cases on conversion relate to the following issues: the distinction between the tort of conversion and the choice of remedy for purposes of determining the appropriate limitation period, the underlying rationale for conversion that is based essentially on possession of a chattel and finally, the question of whether a temporary certificate of entitlement for the purchase of a car in Singapore may be converted.

Assuming The Risk: Tort Law, Policy, And Politics On The Slippery Slopes, Eric Feldman, Alison I. Stein

All Faculty Scholarship

Prominent jurists and legal scholars have long been critical of the doctrine of the assumption of risk, arguing that it is logically flawed and has sown confusion in the courts. This article takes a fresh look at the assumption of risk by focusing on legal conflicts over ski accidents in three ski-intensive states—Vermont, Colorado, and California. It argues that the tort doctrine of the assumption of risk remains vital, and highlights the way in which powerful political and economic actors with links to the ski industry have lobbied aggressively for state laws that codify the assumption of risk. The result …

Allowing Patients To Waive The Right To Sue For Medical Malpractice: A Response To Thaler And Sunstein, Tom Baker, Timothy D. Lytton

All Faculty Scholarship

This essay critically evaluates Richard Thaler and Cass Sunstein’s proposal to allow patients to prospectively waive their rights to bring a malpractice claim, presented in their recent, much acclaimed book, Nudge: Improving Decisions about Health, Wealth and Happiness. We show that the behavioral insights that undergird Nudge do not support the waiver proposal. In addition, we demonstrate that Thaler and Sunstein have not provided a persuasive cost-benefit justification for the proposal. Finally, we argue that their liberty-based defense of waivers rests on misleading analogies and polemical rhetoric that ignore the liberty and other interests served by patients’ tort law rights. …

Foreseeability And Copyright Incentives, Shyamkrishna Balganesh

All Faculty Scholarship

Copyright law’s principal justification today is the economic theory of creator incentives. Central to this theory is the recognition that while copyright’s exclusive rights framework provides creators with an economic incentive to create, it also entails large social costs, and that creators therefore need to be given just enough incentive to create in order to balance the system’s benefits against its costs. Yet, none of copyright’s current doctrines enable courts to circumscribe a creator’s entitlement by reference to limitations inherent in the very idea of incentives. While the common law too relies on providing actors with incentives to behave in …

The Relation Between Regulation And Class Actions: Evidence From The Insurance Industry, Eric Helland, Jonathan Klick

All Faculty Scholarship

Standard law and economics models imply that regulation and litigation serve as substitutes. We test this by looking at the incidence of insurance class actions as a function of measures of regulatory enforcement. We also look specifically at whether states with clear regulatory standards regarding the use of OEM parts experience less litigation over this issue. We find no evidence of substitution between regulation and litigation. We also examine the possibility that litigation is more frequent in states where regulators are more likely to be captured by industry interests, finding no support for this hypothesis either. Instead, litigation is more …

Law, Society, And Medical Malpractice Litigation In Japan, Eric Feldman

All Faculty Scholarship

No abstract provided.

Torts And Innovation, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

This Essay exposes and analyzes a hitherto overlooked cost of the current design of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts’ reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, the recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation.