Law Commons^™

What Are We Reforming? Tort Theory's Place In Debates Over Malpractice Reform, John C.P. Goldberg

Vanderbilt Law Review

Those who are reforming medical malpractice law, or studying its reform, ought to attend to tort theory. This is not because theory will settle difficult policy debates. But it does enable reformers and scholars to be more aware of how under-appreciated and possibly dubious assumptions or inferences might be skewing their analyses. In this Essay, I aim to make this point with two examples.

My first example concerns under-litigation-the apparent fact that a substantial percentage of persons with injuries plausibly traceable to malpractice never sue their doctors.' Assume this is a real phenomenon. What are we to make of it? …

Putting The Caps On Caps: Reconciling The Goal Of Medical Malpractice Reform With The Twin Objectives Of Tort Law, Kyle Miller

Vanderbilt Law Review

Medical malpractice litigation is not a modern invention. Rather, it has been part of the American legal system since before the Revolution,1 and the most recent medical malpractice insurance crisis is not the first this country has known. However, losses to insurers during the earlier medical malpractice insurance crises pale in comparison to the ailments of this most recent crisis.2 Though this most recent medical malpractice insurance crisis seems to be coming to a close,3 by examining the causes of this crisis and enacting changes at present, this country may be able to avoid future crises. Of course, the first …

Rider Beware: Relying On The Courts And A Nationalized Rating System To Address The Duty Of Care Owed To Amusement Park Attraction Guests, Tobias Butler

Vanderbilt Journal of Entertainment & Technology Law

This note explores the history of amusement park attraction regulation, including both the legislative and judicial treatment, and highlights the deficiencies in court approaches in light of "common carrier" law. First, is a brief history of thrill attractions in America as well as regulation of these attractions by both the legislature and judiciary. Specifically it will discuss the major approaches courts have taken in applying or refusing to apply the "common carrier" definition to these attractions. Second, it will analyze why any standard less than "utmost care" does not provide sufficient power for the courts to create a consistent standard …