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Columbia Law School

Columbia Law Review

Torts

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Full-Text Articles in Law

The Equipoise Effect, Bert Huang Jan 2016

The Equipoise Effect, Bert Huang

Faculty Scholarship

This Essay explores an overlooked way to use the remedy of disgorgement in torts, contracts, and regulation. It begins with a reminder that disgorging net gains does not force the liable actor to take a loss; by definition, it allows him to break even. As a matter of incentives, it places him in a sort of equipoise. This equipoise effect has a logical upshot that might seem counterintuitive: Substituting disgorgement for any other remedy, part of the time, can emulate the incentive effect of using that other remedy all of the time.

In theory, then, courts or regulators can sometimes ...


Malpractice Mobs: Medical Dispute Resolution In China, Benjamin L. Liebman Jan 2013

Malpractice Mobs: Medical Dispute Resolution In China, Benjamin L. Liebman

Faculty Scholarship

China has experienced a surge in medical disputes in recent years, on the streets and in the courts. Many disputes result in violence. Quantitative and qualitative empirical evidence of medical malpractice litigation and medical disputes in China reveals a dynamic in which the formal legal system operates in the shadow of protest and violence. The threat of violence leads hospitals to settle claims for more money than would be available in court and also influences how judges handle cases that do wind up in court. The detailed evidence regarding medical disputes presented in this Essay adds depth to existing understanding ...


Reforming The Securities Class Action: On Deterrence And Its Implementation, John C. Coffee Jr. Jan 2006

Reforming The Securities Class Action: On Deterrence And Its Implementation, John C. Coffee Jr.

Faculty Scholarship

Securities class actions impose enormous penalties, but they achieve little compensation and only limited deterrence. This is because of a basic circularity underlying the securities class action: When damages are imposed on the corporation, they essentially fall on diversified shareholders, thereby producing mainly pocket-shifting wealth transfers among shareholders. The current equilibrium benefits corporate insiders, insurers, and plaintiffs' attorneys, but not investors. The appropriate answer to this problem is not to abandon securities litigation, but to shift the incidence of its penalties so that, in the secondary market context, they fall less on the corporation and more on those actors who ...


Class Action Accountability: Reconciling Exit, Voice, And Loyalty In Representative Litigation, John C. Coffee Jr. Jan 2000

Class Action Accountability: Reconciling Exit, Voice, And Loyalty In Representative Litigation, John C. Coffee Jr.

Faculty Scholarship

In two recent and highly technical decisions – Amchem Products v. Windsor and Ortiz v. Fibreboard Corp. – the Supreme Court has recognized that a serious potential for collusion exists in class actions and has outlined a concept of "class cohesion" as the rationale that legitimizes representative litigation. Although agreeing that a legitimacy principle is needed, Professor Coffee doubts that "class cohesion" can bear that weight, either as a normative theory of representation or as an economic solution for the agency cost and collective action problems that arise in representative litigation. He warns that an expansive interpretation of "class cohesion" could produce ...


Antisuit Injunctions And Preclusion Against Absent Nonresident Class Members, Henry Paul Monaghan Jan 1998

Antisuit Injunctions And Preclusion Against Absent Nonresident Class Members, Henry Paul Monaghan

Faculty Scholarship

In this Article, Professor Monaghan addresses an issue of pressing concern in class action litigation today, namely, the extent to which a trial court's class judgment can bind – either by preclusion or injunction – unnamed nonresident class members, thus preventing them from raising due process challenges to the judgment in another court. After placing the antisuit injunction and preclusion issues in the context of recent class action and related developments, Professor Monaghan discusses the Supreme Court's 1985 decision in Phillips Petroleum Co. v. Shutts and its applicability to these issues. In particular, Professor Monaghan criticizes reading Shutts' "implied consent ...


Class Wars: The Dilemma Of The Mass Tort Class Action, John C. Coffee Jr. Jan 1995

Class Wars: The Dilemma Of The Mass Tort Class Action, John C. Coffee Jr.

Faculty Scholarship

Legal change – like organic evolution – can occur at varying paces. Long periods of gradual evolution are sometimes punctuated by brief moments of rapid, irregular change. Recent developments in class action practice bear witness to this phenomenon: during the 1990s, evolution has given way to mutation. At least with respect to mass torts, the development of the class action had been slow and halting. Well into the 1980s, federal courts uniformly resisted attempts to certify such mass tort class actions, largely out of concern that the interests of the individual litigant would be submerged within any large-scale proceeding. By the end ...


Private Insurance, Social Insurance, And Tort Reform: Toward A New Vision Of Compensation For Illness And Injury, Kenneth S. Abraham, Lance Liebman Jan 1993

Private Insurance, Social Insurance, And Tort Reform: Toward A New Vision Of Compensation For Illness And Injury, Kenneth S. Abraham, Lance Liebman

Faculty Scholarship

The United States does not have a system for compensating the victims of illness and injury; it has a set of different institutions that provide compensation. We rely on both tort law and giant programs of public and private insurance to compensate the victims of illness and injury. These institutions perform related functions, but the relationships among them are far from coherent. Indeed, the institutions sometimes work at cross-purposes, compensating some victims excessively and others not at all.

The absence of a coherent system of compensation is reflected even in suggested reforms of existing institutions. Proposals to reform tort law ...


Federal Statutory Review Under Section 1983 And The Apa, Henry Paul Monaghan Jan 1991

Federal Statutory Review Under Section 1983 And The Apa, Henry Paul Monaghan

Faculty Scholarship

Following hard on the heels of two unanimous decisions sustaining the authority of state courts to enforce federal law, two more unanimous rulings at the end of the 1989 Supreme Court Term strongly emphasized their duty to do so. McKesson Corporation v. Division of Alcoholic Beverages & Tobacco, held that the states must provide meaningful postpayment remedies for parties forced to pay state taxes that had been extracted contrary to the commerce clause, and Howlett v. Rose affirmed the existence of a nearly inescapable duty in the state courts to entertain section 1983 actions. Additionally, three days after Howlett, the Court ...


Understanding The Plaintiff's Attorney: The Implications Of Economic Theory For Private Enforcement Of Law Through Class And Derivative Actions, John C. Coffee Jr. Jan 1986

Understanding The Plaintiff's Attorney: The Implications Of Economic Theory For Private Enforcement Of Law Through Class And Derivative Actions, John C. Coffee Jr.

Faculty Scholarship

Probably to a unique degree, American law relies upon private litigants to enforce substantive provisions of law that in other legal systems are left largely to the discretion of public enforcement agencies. This system of enforcement through "private attorneys general" is most closely associated with the federal antitrust and securities laws and the common law's derivative action, but similar institutional arrangements have developed recently in the environmental, "mass tort," and employment discrimination fields. The key legal rules that make the private attorney general a reality in American law today, however, are not substantive but procedural – namely, those rules that ...


Integrating Governmental And Officer Tort Liability, George A. Bermann Jan 1977

Integrating Governmental And Officer Tort Liability, George A. Bermann

Faculty Scholarship

The legislative and judicial dismantling of sovereign immunity is among the more significant and celebrated reforms of recent American administrative law. In many instances, this development has given those seeking damages for wrongful governmental action their first and only defendant. Even in situations in which litigants already had a cause of action against individual public officials, making the government amenable to suit has enhanced the chances of actual recovery, since officials often lack the means to satisfy judgments rendered against them. The immunity from liability enjoyed by public officials also has undergone a complex series of changes. Though still in ...