Law Commons^™

Dignity Takings, Dignity Restoration: A Tort Law Perspective, Valerie P. Hans

Chicago-Kent Law Review

No abstract provided.

Overdetermined Causation Cases, Contribution And The Shapley Value, Samuel Ferey, Pierre Dehez

Chicago-Kent Law Review

The overdetermined causation cases (duplicative causation, concurrent causes, etc.) challenge the consistency and relevance of the but for test in torts. A strict application of the but for criterion to these cases leads to paradoxes and solutions that violate common sense. This explains why a large amount of literature has been developed in philosophy and jurisprudence to provide more accurate causation criteria. This paper adds to this literature by considering over-determination cases from an economic and mathematical point of view. Following Martin van Hees and Matthew Braham in their 2009 article Degrees of Causation, we consider over-determined cases through cooperative …

Causation And Standard Of Proof From An Economic Perspective, Bruno Deffains, Claude Fluet, Maiva Ropaul

Chicago-Kent Law Review

Causation is a problematic notion, as explained by Ronald Coase regarding the “bilateral nature” of externalities. However, causation has played only a minor role in standard economic models of civil liability. An exception is the sub-literature on Uncertainty Over Causation and the Determination of Civil Liability, the benchmark paper written by Steven Shavell in 1985: “. . . the familiar notion that for parties to be led to reduce accident risks appropriately, they should generally face probability-discounted or ‘expected’ liability equal to the increase in expected losses that they create. This, of course, is naturally the case in the absence …

Causation In Cases Of Evidential Uncertainty: Juridical Techniques And Fundamental Issues, Ken Oliphant

Chicago-Kent Law Review

This paper reviews from a comparative legal perspective the range of juridical techniques that have been developed in different legal systems to address perceived problems of uncertain alternative causation. It finds that the process of development has generally proceeded in an ad hoc and unprincipled fashion, without regard for overall coherence. It argues for a more principled legal approach in which the appropriate legal response (full liability, proportional liability or no liability) is adopted on the basis of a ranking of the different categories of cases in which problems of causal uncertainty can arise, reflecting the strength (or weakness) of …

Medical Malpractice: The Italian Experience, Claudia Dimarzo

Chicago-Kent Law Review

Beginning with an investigation into the problematic nature of medical liability, the Article overviews the most significant approaches taken by courts and scholars in order to establish whether the physician's position before the patient is comparable with that of either a tortfeasor or a contractor.

Having explained that the most recent approaches in this regard tend toward the recognition of the contractual nature of medical liability, the Author discusses the implications of such a solution, making specific reference to the following issues: 1) the assignment of the burden of proof (along with the distinction between obligations of means and obligations …

Medical Malpractice And Compensation In South Africa, L. C. Coetzee, Pieter Carstens

Chicago-Kent Law Review

This article gives an overview of current medical malpractice law in South Africa. The following aspects are covered: The overall scheme for preventing and redressing medical errors and adverse events, including regulation, criminal and civil liability, and social and private insurance, and the relationships among these various systems; the details of the applicable liability and compensation systems, including criteria defining qualification for compensation, causation and "loss of chance," liability for failure to obtain informed consent, as well as matters of proof and gathering of evidence. The authors note the difficulty they had in obtaining empirical data on medical errors and …

Medical Malpractice In Austria, Bernhard A. Koch

Chicago-Kent Law Review

This article presents the Austrian law governing compensation for medical malpractice in an overview. After a glimpse at the healthcare and social insurance system, the regulatory framework is outlined, with an obvious particular focus on tort and contract law. Apart from the special case where informed consent is lacking, the various elements of a claim that patients may have mirror the general requirements of tort and contract liability in Austria, which is why the brief sketch may also serve to give at least some basic insight into that part of the legal system in general. Furthermore, peculiar approaches in handling …

Treatment Injury In New Zealand, Stephen Todd

Chicago-Kent Law Review

The New Zealand accident compensation scheme makes provision for the payment of compensation to the victims of personal injury that is caused by medical treatment, but at the same time it bars actions for damages based upon such injury. This article gives a brief overview of the scheme as a whole and its relation- ship with the common law, and then focuses on the particular provisions governing medical injury. It includes discussion of the extent of the statutory cover, problems of causation, the operation of the medical scheme in practice, costs and funding, and issues of accountability. It ends with …

Medical Malpractice And Compensation In Poland, Kinga Bączyk-Rozwadowska

Chicago-Kent Law Review

Civil liability for medical malpractice in Poland can be either contractual or tortious. In practice, provisions of ex delicto liability are applied. Since June 2010, liability insurance is obligatory for all health care providers that render medical services in Poland. Tortious liability may be attributed to a doctor or a hospital when either's faulty acts or omissions result in the damage. A hospital may also have vicarious liability for injuries caused by its doctors and other medical staff. Fault usually consists of negligence, which is defined as failure to work with due care and diligence while treating a patient. Burden …

Proving Facts: Belief Versus Probability, Richard W. Wright

All Faculty Scholarship

No abstract provided.

Liability For Possible Wrongs: Causation, Statistical Probability And The Burden Of Proof, In Symposium, The Frontiers Of Tort Law, Richard W. Wright

All Faculty Scholarship

Courts around the world are increasingly considering whether liability should exist in various types of situations in which a plaintiff can prove that a defendant’s tortious conduct may have contributed to the plaintiff’s injury, but it is inherently impossible, given the nature of the situation, for the plaintiff to prove that the defendant’s tortious conduct actually contributed to the injury. The problematic nature of the causal issue is usually recognized when the probability of causation is not greater than 50 percent, with courts adopting different views, depending on the type of situation, on whether liability nevertheless is appropriate and, if …

The Principles Of Product Liability, In Symposium, Products Liability: Litigation Trends On The 10th Anniversary Of The Third Restatement, Richard W. Wright

All Faculty Scholarship

No abstract provided.

Acts And Omissions As Positive And Negative Causes, Richard W. Wright

All Faculty Scholarship

No abstract provided.

Causation, Responsibility, Risk, Probability, Naked Statistics, And Proof: Pruning The Bramble Bush By Clarifying The Concepts, Translated Into Italian By Federico Stella, Richard W. Wright

All Faculty Scholarship

No abstract provided.

Hand, Posner, And The Myth Of The "Hand Formula", In Symposium, Negligence In The Law, Richard W. Wright

All Faculty Scholarship

There is a striking incongruence between the discussions of negligence in the legal literature, including the American Law Institute's Restatement of Torts, and the understandings of ordinary people and the actual practice of the courts. The legal literature generally assumes that an aggregate-risk-utility test is employed to determine whether conduct was reasonable or negligent. This test was invented by legal academics and inserted in the first Restatement during the first part of the twentieth century, although, as recent studies all conclude, it had almost no support in the cases prior to its adoption in the Restatement and for several decades …

The Grounds And Extent Of Legal Responsibility, In Symposium, What Do Compensatory Damages Compensate?, Richard W. Wright

All Faculty Scholarship

This article identifies and discusses the three principal limitations on the extent of legal responsibility for tortiously caused harm and explains and justifies them by reference to the principle of interactive justice, which holds one legally responsible for causing (or being imminently about to cause) harm to another's person or property as a result of conduct that is inconsistent with others' right to equal freedom. The three principal limitations prevent liability for a tortiously caused harm when (1) the harm almost certainly would have occurred anyway in the absence of any tortious conduct or condition (the "no worse off" limitation), …

Justice And Reasonable Care In Negligence Law, Richard W. Wright

All Faculty Scholarship

The academic literature generally assumes that an aggregate-risk-utility test is employed to determine whether conduct was reasonable or negligent. This aggregate-risk-utility test is a transparent implementation of the basic impartiality and aggregation principles of utilitarianism and the most popular (Kaldor-Hicks) interpretation of economic efficiency. Thus, the test's assumed prevalence as the criterion of reasonableness in negligence law has been highlighted by legal economists as confirmation of the utilitarian efficiency foundations of tort law, while those, including Ronald Dworkin, who think that the law, including tort law, is or should be grounded on principles of justice have sought to demonstrate that, …

Negligence In The Courts: Introduction And Commentary, In Symposium, Negligence In The Courts: The Actual Practice, Richard W. Wright

All Faculty Scholarship

This article is an introduction to and commentary on the contributions to a "Symposium on Negligence in the Courts: the Actual Practice." The contributors all conclude that the tests of negligence that are actually employed by the courts differ from the aggregate-risk-utility test that is generally assumed in the academic literature, including the Restatement of Torts. Patrick Kelley and Laurel Wendt's survey of all the standard jury instructions on negligence in the United States finds only one instruction, in Louisiana, that mentions a risk-utility or cost-benefit test of negligence, and that instruction merely suggests, as a discretionary option, the weighing …

The Vitality Of Joint And Several Liability: Brief Amici Curiae Of American Law Professors In Support Of Respondents, Richard W. Wright

All Faculty Scholarship

Tort reform advocates hoped to use a recent case, Norfolk & Western Railway Co. v. Ayers, 123 S. Ct. 1210 (2003), as a vehicle for obtaining a Supreme Court opinion critical of the traditional doctrine of joint and several liability. Under this doctrine, each of the multiple responsible causes of an injury is potentially fully liable for that injury. The specific issue in Ayers was the availability of joint-and-several liability under the Federal Employers' Liability Act (FELA), which employs common-law tort doctrines while excluding some of the traditional defenses. The defendant claimed that the traditional common law used fractional apportionment …

Once More Into The Bramble Bush: Duty, Causal Contribution, And The Extent Of Legal Responsibility, In Symposium, The John W. Wade Conference On The Third Restatement Of Torts, Richard W. Wright

All Faculty Scholarship

Courts, lawyers, law students, and academics continue to confuse the empirical issue of causal contribution with the distinct normative issues of tortious conduct and legal injury, which precede and frame the causal-contribution inquiry, and the normative issue of the extent of legal responsibility for tortiously caused consequences, which follows the causal-contribution inquiry. In a number of prior articles, I have tried to distinguish and clarify these various issues, which arise not only in tort law, but also in much the same form in criminal law and many other areas of the law. I have focused primarily on distinguishing and clarifying …

Principled Adjudication: Tort Law And Beyond, Richard W. Wright

All Faculty Scholarship

The article briefly discusses the impossibility of a strict formalist or positivist approach to legal adjudication and the necessity and plausibility of a principled approach, according to which it is necessary to resort, explicitly or implicitly, to the principles underlying the positive expressions or sources of law to identify, interpret and apply the law, in easy as well as hard cases. The legitimacy of the principled approach crucially depends on resort to the community's moral principles as embedded in the existing law -- those moral principles which best explain as much as possible of the existing law -- rather than …

Right, Justice, And Tort Law, Richard W. Wright

All Faculty Scholarship

No abstract provided.

The Standards Of Care In Negligence Law, Richard W. Wright

All Faculty Scholarship

No abstract provided.

Foundations Of The Duty To Rescue, Steven J. Heyman

All Faculty Scholarship

No abstract provided.

The Logic And Fairness Of Joint And Several Liability, In Symposium, Comparative Negligence, Richard W. Wright

All Faculty Scholarship

No abstract provided.

Tort Liability, The First Amendment, And Equal Access To Electronic Networks, Henry H. Perritt Jr.

All Faculty Scholarship

No abstract provided.

Understanding Joint And Several Liability, Richard W. Wright

All Faculty Scholarship

No abstract provided.

Throwing Out The Baby With The Bathwater: A Reply To Professor Twerski, Richard W. Wright

All Faculty Scholarship

No abstract provided.

Allocating Liability Among Multiple Responsible Causes: A Principled Defense Of Joint And Several Liability For Actual Harm And Risk Exposure, Richard W. Wright

All Faculty Scholarship

No abstract provided.

Causation, Responsibility, Risk, Probability, Naked Statistics, And Proof: Pruning The Bramble Bush By Clarifying The Concepts, Richard W. Wright

All Faculty Scholarship

No abstract provided.