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Full-Text Articles in Law
Allowing Patients To Waive The Right To Sue For Medical Malpractice: A Response To Thaler And Sunstein, Tom Baker, Timothy D. Lytton
Allowing Patients To Waive The Right To Sue For Medical Malpractice: A Response To Thaler And Sunstein, Tom Baker, Timothy D. Lytton
Timothy D. Lytton
This essay critically evaluates Richard Thaler and Cass Sunstein’s proposal to allow patients to prospectively waive their rights to bring a malpractice claim, presented in their recent, much acclaimed book, Nudge: Improving Decisions about Health, Wealth and Happiness. We show that the behavioral insights that undergird Nudge do not support the waiver proposal. In addition, we demonstrate that Thaler and Sunstein have not provided a persuasive cost-benefit justification for the proposal. Finally, we argue that their liberty-based defense of waivers rests on misleading analogies and polemical rhetoric that ignore the liberty and other interests served by patients’ tort law rights. …
Technology & Torts: A Theory Of Memory Costs, Nondurable Precautions And Interference Effects, Ben Depoorter
Technology & Torts: A Theory Of Memory Costs, Nondurable Precautions And Interference Effects, Ben Depoorter
Ben Depoorter
This Article examines the influence of nondurable precaution technologies on the expansion of tort awards. We provide four contributions to the literature. First, we present a general, formal model on durable and non-durable precaution technology that focuses on memory costs. Second, because liability exposure creates interference, we argue that tort law perpetuates the expansion of awards. Third, because plaintiffs do not consider the social costs of interference effects, private litigation induces socially excessive suits. Fourth, while new harm-reducing technologies likely increase accident rates, such technologies also raise the ratio of trial costs to harm, leaving undetermined the overall effect of …
Most Claims Settle: Implications For Alternative Dispute Resolution From A Profile Of Medical Malpractice Claims In Florida, Mirya R. Holman, Neil Vidmar
Most Claims Settle: Implications For Alternative Dispute Resolution From A Profile Of Medical Malpractice Claims In Florida, Mirya R. Holman, Neil Vidmar
Mirya R Holman
The public image of medical malpractice cases is one of a courtroom, with an injured plaintiff, lawyers, and a judge. However, the reality of malpractice claims is very different. Approaching the study of alternative dispute resolution methods for medical malpractice claims with an eye towards identifying those contexts by which the claims are resolved, this article focuses on the institutional and informal processes of resolving disputes. These processes include both statutory procedural requirements and informal settlements, many of which occur prior to the filing of a lawsuit. A profile of medical malpractice claims in Florida from 1990 through 2008, indicates …
Tort Law And Probabilistic Litigation: How To Apply Multipliers To Address The Problem Of Negative Value Suits, Ben Depoorter
Tort Law And Probabilistic Litigation: How To Apply Multipliers To Address The Problem Of Negative Value Suits, Ben Depoorter
Ben Depoorter
This Article advances a proposal that brings to life valuable lawsuits that litigation costs currently discourage. Our proposal converts claims with negative expected values into positive expected value claims by implementing a novel system involving flexible conditional multipliers. Our proposal has two components. First, under the proposed system a plaintiff is allowed to select a damage multiplier that determines the amount of damages the plaintiff will receive if the litigation is successful. Second, courts select cases for litigation randomly with a probability inverse to the multiplier the plaintiff selected.
Policy Oscillation In California's Law Of Premises Liability, Ronald L. Steiner
Policy Oscillation In California's Law Of Premises Liability, Ronald L. Steiner
Ronald L. Steiner
The expansion of tort liability beginning in the middle of the 20th century, and the reaction against that expansion as the century came to a close, constitutes a clear demonstration of the nostrum that tort law is “public law in disguise.” Adjudication of private disputes became a battleground of public policy preferences as to how risks and compensation should be distributed so as to serve societal interests such as fairness, efficiency, and personal autonomy. This article studies examines in detail a critical battleground in a key state, the revolution and counter-revolution in premises liability in California, as a paradigm case. …