Law Commons^™

What Happened To No-Fault? The Role Of Error Reporting In Healthcare Reform, Henry Y. Huang, Farzad Soleimani

Henry Y Huang

No-fault systems for compensating medical injuries offer theoretical advantages over tort-based malpractice litigation, but may not actually reduce medical error rates or costs in practice. Surveys of doctors in the United States, a tort-based system, and New Zealand, a no-fault system, show that physicians across both systems share similar concerns about error reporting. These results suggest that error reporting, instead of simple cost reduction, should play a central role in no-fault compensation systems, which would reduce mistakes, improve quality going forward, generate feedback to physicians, and provide the public with greater information about their healthcare providers.

The Trouble With Putting All Of Your Eggs In One Basket: Using A Property Rights Model To Resolve Disputes Over Cryopreserved Embryos, Bridget M. Fuselier

Bridget M Fuselier

“The Trouble With Putting All of Your Eggs in One Basket:

Using a Property Rights Model to Resolve Disputes Over Cryopreserved Embryos”

Bridget M. Fuselier

ABSTRACT

This article covers a very current and relevant topic in today’s legal environment. Previous articles have merely discussed competing models or coverage of the disputes in the case law. My article embarks upon a comprehensive look at the specific problem presented and then goes on to offer a specific model with proposed legislation to address these disputes in a fundamentally more efficient manner.

As evidenced by current efforts in a number of states, the …

Big-Box Bullies Bust Benign Buyer Behavior: Wal-Mart, Get Your Hand Off My Receipt!, Victoria S. Salzmann

Victoria S. Salzmann

This Article is a critical analysis of “big-box” store policies that force consumers to hand over their receipts before they are permitted to leave. I argue that, at least in the tort context, the economic power of retail stores has grown beyond the limiting power of the law. To support this theory, I consider a practice I show to be unlawful under settled tort law—store demands for customer receipts. Considering this illegal practice against other unchecked illegalities performed by the superstores, I theorize that economic power is replacing the law as the personal liberty safeguard.

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.

"Negligence In The Air?" Should "Alternative Liability" Theories Apply In Lead Paint Litigation?, Richard O. Faulk, John S. Gray

Richard Faulk

This article examines various theories of alternative liability and the circumstances, policies and limitations under which they were created and expanded. It then specifically examines the application of “market share” liability to the manufacturers of lead pigment currently being sued by governmental entities under theories of public nuisance. Finally, it demonstrates how these theories are unworkable in the context of the lead paint public nuisance litigation. Viewed in the proper perspective, it is time to stop the descent of American jurisprudence down the “slippery slope” of alternative liability—lest the uncontrolled descent lead to a precipitous fall into an irrational and …

Private Equity's Three Lessons For Agency Theory, William Wilson Bratton

Articles

No abstract provided.

Calling It A Leg Doesn't Make It A Leg: Doctors, Lawyers And Tort Reform, Ellen Wertheimer

Working Paper Series

It has long been a truism that doctors hate lawyers. This article explores some of the reasons for this phenomenon, as well as some areas for reform that might help to promote a better relationship between the professions.

Defense Costs And Insurer Reserves In Medical Malpractice And Other Personal Injury Cases: Evidence From Texas, 1988-2004, Bernard Black, David A. Hyman, Charles Silver, William M. Sage

Faculty Scholarship

We study defense costs for commercially insured personal injury tort claims in Texas over 1988–2004, and insurer reserves for those costs. We rely on detailed case-level data on defense legal fees and expenses, and Texas state bar data on lawyers’ hourly rates. We study medical malpractice (“med mal”) cases in detail, and other types of cases in less detail. Controlling for payouts, real defense costs in med mal cases rise by 4.6 percent per year, roughly doubling over this period. The rate of increase is similar for legal fees and for other expenses. Real hourly rates for personal injury defense …

Fire Safety In Shopping Malls & Premises Liability, John O. Hayward

John O. Hayward

America’s 1,175 shopping malls represent a new economic, cultural, and social phenomenon. One study found that Americans spent more time at malls than anywhere except home and work. But from a fire safety perspective,how safe are shopping malls? How strict are mall fire safety codes? This article reviews the incidence of fires in shopping malls both in the U.S. and abroad,and examines the latest fire safety technology in the fields of sprinklers, alarms,signage,smoke control,and evacuation strategies. The liability of mall owners and retailers for fire safety is then explored.

Order Out Of Chaos: Products Liability Design Defect Law, Dominick Vetri

Dominick Vetri

Products liability design defect law appears to be in a state of disorder. All of the different design defect tests used by the state courts give the appearance of chaos in American products liability law. The states have failed to develop a strong consensus on a legal test for design defect. It is, of course, an exaggeration to say that there are as many different legal tests for design defect as there are states, but in a world in which products are routinely shipped in foreign and interstate commerce, there is a need for more uniformity than we have. Fortunately, …

The Emergent Logic Of Health Law, Maxwell Gregg Bloche

Maxwell Gregg Bloche

The American health care system is on a glide path toward ruin. Health spending has become the fiscal equivalent of global warming, and the number of uninsured Americans is approaching 50 million. Can law help to divert our country from this path? There are reasons for deep skepticism. Law governs the provision and financing of medical care in fragmented and incoherent fashion. Commentators from diverse perspectives bemoan this chaos, casting it as an obstacle to change. I contend in this article that pessimism about health law’s prospects is unjustified, but that a new understanding of health law’s disarray is urgently …

What Do You Do With A Drunken Sailor? Reprehensibility, The Exxon Valdez And Punitive Damages, Charles S. Doskow

Charles S Doskow

Under the Supreme Court's due process analysis of the constitutionality of punitive damage awards, in the BMW and State Farm cases, reprehensibility is the first factor considered. The Ninth Circuit's opinion in the Exxon Valdez oil spill case contains a detailed analysis of the elements of reprehensibility. The Supreme Court, on appeal of the Ninth Circuit's decision upholding punitive damages of $2.5 billion, avoided constitutional analysis and applied maritime law. The Court limited punitive damages to the amount of compensatory damages, a 1:1 ratio. Whether this standard will be applied outside the maritime area, to future awards evaluated under due …

Tort Experiments In The Laboratories Of Democracy, Alexandra B. Klass

Alexandra B. Klass

This Article considers the broad range of “tort experiments” states have undertaken in recent years as well as the changing attitudes of Congress and the Supreme Court toward state tort law. Notably, as states have engaged in well-publicized tort reform efforts in the products liability and personal injury areas, they have also increased tort rights and remedies to address new societal problems associated with privacy, publicity, consumer protection, and environmental harm. At the same time, however, just as the Supreme Court was beginning its so-called “federalism revolution” of the 1990s to limit Congressional authority in the name of states’ rights, …

"Smile, You're On Cellphone Camera!": Regulating Online Video Privacy In The Myspace Generation, Jacqueline D. Lipton

Jacqueline D Lipton

In the latest Batman movie, Bruce Wayne’s corporate right hand man, Lucius Fox, copes stoically with the death and destruction dogging his boss. Interestingly, the last straw for him is Bruce’s request that he use digital video surveillance created through the city’s cellphone network to spy on the people of Gotham City in order to locate the Joker. Does this tell us something about the increasing social importance of privacy, particularly in an age where digital video technology is ubiquitous and largely unregulated? While much digital privacy law and commentary has focused on text files containing personal data, little attention …

The Tort Of Negligence Or The State-Created Danger: Two Avenues For School Liability In The Case Of The Injured Student Informant, Michele H. Berger

Michele H Berger

Schools use students as the watchdogs of the school to report to authorities about drugs and weapons possession. There is a lack of liability assigned to schools for placing students in this inherently dangerous situation. If it is absolutely necessary for high schools to use students as informants, courts should charge schools with an affirmative duty to protect student informants.

Where there is a duty, there is the potential to breach that duty, thus exposing the school to liability for negligence. So long as that breach of a duty causes an injury to the plaintiff through cause in fact, proximate …

The Social Cost Of Dangerous Products: An Empirical Investigation, Sidney A. Shapiro, J. Paul Leigh, Ruth Ruttenberg

Sidney A Shapiro

The debate over far reaching changes in the common law of torts has produced a number of empirical studies focused on the operation of the tort litigation system. None of these studies, however, offers a sufficient measurement of the value of the tort system when it deters the sale of consumer products that are defective under the relevant common law product liability standards. Our study directly estimates the cost of injuries and fatalities attributable to three dangerous products: Ford SUV’s with Firestone tires, the pharmaceutical drug Baycol, and All Terrain Vehicles (ATVs) with three wheels and discusses the implications of …

Copyright Infringement In The Internet Age - Primetime For Harmonized Conflict-Of-Laws Rules?, Anita B. Frohlich

Anita B Frohlich

The traditionally national nature of law endangers its very raison d’être in today’s interconnected and borderless world. Conflict-of-laws methodology may prove to represent an adequate means to maintain relevance of national legal tradition in presence of the increasingly international nature of legal disputes. Here, I propose that only a harmonized conflict-of-laws framework can achieve this goal. Specifically, I focus on international copyright law since (1) the current national jurisprudence in this field is unsatisfactory and disparate, (2) international intellectual property law has so far mostly failed to cross-fertilize with the field of conflict of laws, and (3) there have been …

When Patients Say No (To Save Money): An Essay On The Tectonics Of Health Law, Mark A. Hall

Mark A Hall

Our principal task in this essay is to show how the three principle parts of health law -- malpractice, bioethics, and health care finance -- are colliding in ways that will require adjustments in legal doctrine. These parts are like neighboring tectonic plates, either with their own central purposes and basic assumptions. For years each part developed quite independently. Recently, however, public policy increasingly has moved the plates into tension, producing seismic potential that has been largely unnoticed. We demonstrate this through a case study of one tectonic encounter -- a patient who says no to standard-of-care treatment because of …

Mortgage Fraud And The Deliberate Ignorance Jury Instruction: The Risk Of Criminal Liability For Real Estate Professionals Involved In Civil Litigation, William Z. Duffy

William Z Duffy

Those involved in the purchase or sale of real estate risk becoming entangled in a scheme to defraud a financial institution. These individuals can include the escrow agent, mortgage broker, realtor, seller, appraiser and developer. In many instances, criminal charges related to the alleged fraud will be preceded by a civil lawsuit initiated by the lending institution against the perpetrators of the fraud and anyone else connected to the transaction. When evaluating these cases, civil counsel should be aware that government prosecutors will argue that “red flags” alerted the defendant to the fraud, but the defendant purposefully closed his eyes …

Jackpot Justice And The American Tort System: Thinking Beyond Junk Science, Tom Baker, Herbert M. Kritzer, Neil Vidmar

All Faculty Scholarship

In 2007 the Pacific Research Institute released a report, Jackpot Justice: The True Cost of America's Tort System, that is widely available on the internet. The conclusion of the report is that America's tort system costs $865.37 billion annually, amounting to an "annual price tag, or 'tort tax' for a family of four in terms of costs and foregone benefits" of $9,827. As our report will demonstrate, the conclusions of Jackpot Justice are without scientific merit and present a very misleading picture of the American tort system and its costs.

Research on the tort system's efficiency, its fairness and …

The Mouse Roars! Rhode Island High Court Rejects Expansion Of Public Nuisance, Richard O. Faulk, John S. Gray, Thomas R. Bender

Richard Faulk

On July 1, 2008, the Supreme Court of Rhode Island, the smallest state in the nation, gave a loud and mighty roar as it joined the chorus of high courts rejecting attempts to expand the use of the law of public nuisance as a means to sue manufacturers of lawful products. In so ruling, the court acted consistently with the traditional role of judges presiding over common law controversies, and joined a growing list of other state supreme courts that have refused to enlarge the boundaries of this ancient tort.

“Private Law And Public Goals: The Continuing Importance Of The Action For Breach Of Statutory Duty” (Paper Presented At The Obligations Iv Conference, Singapore, 23-25 July 2008), Neil J. Foster

Neil J Foster

The tort action for Breach of Statutory Duty seems to provide the perfect intersection between the goals of private law and “public” goals as determined by legislation. But the question as to when, in what circumstances, and why, a civil action should be available to a claimant whose statutory rights have been breached continues to be agitated. In one common law jurisdiction, Canada, the action has been effectively abolished by judicial fiat. But in others it continues to play an important role, sometimes in matters of seemingly “low status” but great importance to the person concerned (such as injured workers), …

Teaching Laws With Flaws: Adopting A Pluralistic Approach To Torts, Taunya Lovell Banks

Taunya Lovell Banks

No abstract provided.

Teaching Laws With Flaws: Adopting A Pluralistic Approach To Torts, Taunya Lovell Banks

Taunya Lovell Banks

No abstract provided.

A Closer Look At Iraqi Property And Tort Law, Dan E. Stigall

Louisiana Law Review

No abstract provided.

Cafa's Impact On Litigation As A Public Good, Elizabeth Chamblee Burch

Scholarly Works

Class actions regulate when government fails. Perhaps this use as an ex post remedy when ex ante regulation founders explains the fervor and rhetoric surrounding Rule 23's political life. In truth, the class action does more than aggregate; it augments government policing and generates external societal benefits. These societal benefits - externalities - are the spillover effects from facilitating small claims litigation. In federalizing class actions through the Class Action Fairness Act (CAFA), Congress, in some ways, impeded class action practice, thereby negating its positive externalities and inhibiting backdoor regulation. This Article critically considers those effects on the common good. …

From Zebra Mussels To Coqui Frogs: Public Nuisance Liability As A Method To Combat The Introduction Of Invasive Species, Matthew C. Shannon

Matthew C Shannon

Ecological alterations and disturbances caused by non-indigenous invasive species [NIS] deteriorate biodiversity and have a devastating affect on an area's ecology, economy, and human health. Even as the costs, health risks, and environmental damage associated with NIS becomes more apparent and widely accepted, further environmental regulation and/or trade restrictions to prevent NIS introduction may become more politically unacceptable in light of the growing global economy. Although the problem of invasive species introduction has been addressed by various legal regimes, public nuisance tort liability is particularly well suited and should be used to target those who negligently or deliberately introduce invasive …

Design Defects, David G. Owen

Faculty Publications

No abstract provided.

The Cleaver, The Violin And The Scalpel: An Essay On Duty And The Third Restatement Of Torts, Aaron D. Twerski

Aaron D. Twerski

The article takes issue with the approach taken by Third Restatement of Torts Proposed Final Draft that insists that no-duty or limited duty rules should be formulated only when a court can promulgate clear , categorical , bright-line rules that are applicable to a general class of cases. In this article I demonstrate that no-duty rules may often have to be formulated and tailored to the facts of a specific case. I respond to the critics who are concerned that no-duty rules that are fact specific allow the court to invade the province of juries whose task it is to …

Negligent Entrustment In South Carolina: An Analysis Of South Carolina's Consistent Application And Inconsistent Statements Of The Standard After Gadson V. Eco Services Of South Carolina, Inc., Robert H. Mcwilliams Jr.

South Carolina Law Review

No abstract provided.