Law Commons^™

Opting Out Of Liability: The Forthcoming, Near-Total Demise Of The Modern Class Action, Myriam Gilles

Michigan Law Review

It is reasonable to expect that courts will demonstrate great solicitude for the recent innovation that I term "collective action waivers" - i.e., contractual provisions contained within arbitration agreements whereby consumers and others waive their rights to participate in any form of collective litigation or class arbitration. The history of mass tort class actions and the hegemonic expansion of pro-arbitration jurisprudence compel this conclusion. And, as the now-dominant economic model of contract law has moved the focus of courts from the value of consent to the value of efficiency, arbitration agreements found in all manner of shrink-wrap, scroll-text and bill-stuffer …

Learning The Wrong Lessons From "An American Tragedy", David Bernstein

Law & Economics Working Papers Archive: 2003-2009

This paper is a critique of Margaret Berger and Aaron Twerski, “Uncertainty and Informed Choice: Unmasking Daubert,” forthcoming in 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 …

Uncertainty And Informed Choice: Unmasking Daubert, Margaret A. Berger, Aaron D. Twerski

Michigan Law Review

This Article will first examine why it is that plaintiffs have been unable to prove causation under the Daubert guidelines in toxic tort litigation. Second, it will look at the two existing models for informed choice litigation medical malpractice and products liability-and demonstrate why neither of these models gives toxic tort plaintiffs a fair opportunity to recover for the deprivation of patient autonomy against drug manufacturers who have breached their duty to warn of known or knowable risks. Finally, this Article will explore the elements of a causation-free informed choice cause of action. It will suggest the appropriate standard for …

How Liability Distorts Incentives Of Manufacturers To Recall Products, Omri Ben-Shahar

Law & Economics Working Papers Archive: 2003-2009

The nature and likelihood of harms associated with products may be revealed over time. As more information is gathered, a manufacturer must decide whether to continue selling the product as is, or to recall it. The paper shows that existing products liability law gives the manufacturers bad incentive to recall products. It shows, counter-intuitively, that as the post-recall liability becomes more severe, manufacturers would be more likely to leave products in the market longer and more often than is socially desirable. It also demonstrates that the law hurts the incentives of manufacturers to acquire better information about the riskiness of …

Damage Caps: Recent Trends In American Tort Law, Mark K. Osbeck

Articles

Damage caps and other limitations on damages have become increasingly important in American tort law during the past thirty years. This trend shows no signs of abating; in fact, it has gained increasing momentum since President Bush took office in 2001. This chapter traces the evolution of damage caps and other limitations on damages and provides a summary of recent developments in this area.