Law Commons^™

Immigration Detention And Illusory Alternatives To Habeas, Fatma Marouf

Faculty Scholarship

The Supreme Court has never directly addressed whether, or under what circumstances, a writ of habeas corpus may be used to challenge the conditions of detention, as opposed to the fact or duration of detention. Consequently, a circuit split exists on habeas jurisdiction over conditions claims. The COVID-19 pandemic brought this issue into the spotlight as detained individuals fearing infection, serious illness, and death requested release through habeas petitions around the country. One of the factors that courts considered in deciding whether to exercise habeas jurisdiction was whether alternative remedies exist, through a civil rights or tort-based action. This Article …

The Case Against Expanding Defamation Law, Yonathan A. Arbel, Murat C. Mungan

Faculty Scholarship

It is considered axiomatic that defamation law protects reputation. This proposition—commonsensical, pervasive, and influential—is faulty. Underlying this fallacy is the failure to appreciate audience effects: the interaction between defamation law and members of the audience.

Defamation law seeks to affect the behavior of speakers by making them bear a cost for spreading untruthful information. Invariably, however, the law will also affect members of the audience, as statements made in a highly regulated environment tend to appear more reliable than statements made without accountability. Strict defamation law would tend to increase the perceived reliability of statements, which in some cases can …

Adopting Civil Damages: Wrongful Family Separation In Adoption, Malinda L. Seymore

Faculty Scholarship

The Trump Administration’s new immigration policy of family separation at the U.S./Mexico border rocked the summer of 2018. Yet family separation is the prerequisite to every legal adoption. The circumstances are different, of course. In legal adoption, the biological parents are provided with all the constitutional protections required in involuntary termination of parental rights, or they have voluntarily consented to family separation. But what happens when that family separation is wrongful, when the birth mother’s consent is not voluntary, or when the birth father’s wishes to parent are ignored? In theory, the child can be returned to the birth parents …

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan Saab Fortney

Faculty Scholarship

Black's Law Dictionary defines “tort” as a civil wrong for which a remedy may be obtained. In examining both the economics and jurisprudence related to legal malpractice, the article discusses why the “remedy” portion of this definition is unavailable for many victims of legal malpractice. This discussion considers the different stages of a legal malpractice case, including the challenges that injured persons face in retaining experienced counsel to represent them, the anatomy of the legal malpractice case, and the difficulties in collecting judgements or settlements. The discussion will consider how “capture” and “judicial bias” contribute to the “disappearing legal malpractice …

An Intentional Tort Theory Of Patents, Saurabh Vishnubhakat

Faculty Scholarship

This Article challenges the dogma of U.S. patent law that direct infringement is a strict liability tort. Impermissibly practicing a patented invention does create liability even if the infringer did not intend to infringe or know about the patent. The consensus is that this is a form of strict liability. The flaw in the consensus is that it proves too little, for the same is true of intentional torts: intent to commit the tort is unnecessary, and ignorance of the legal right is no excuse. What is relevant is intent to perform the action that the law deems tortious. So …

Foreword: Legal Malpractice Is No Longer The Profession's Dirty Little Secret, Susan Saab Fortney

Faculty Scholarship

In 1994, Professor Manuel R. Ramos published a law review article called, Legal Malpractice: The Profession's Dirty Little Secret. As suggested by the title, Professor Ramos argued that legal malpractice was a "taboo subject" that has been "ignored by the legal profession, law schools, mandatory continuing legal education ("CLE") programs, and even by scholarly and lay publications." Thirty years later, legal malpractice is an ever-present threat that lawyers cannot afford to ignore.

Duress As Rent-Seeking, Mark Seidenfeld, Murat C. Mungan

Faculty Scholarship

The doctrine of duress allows a party to avoid its contractual obligations when that party was induced to enter the contract by a wrongful threat while in a dire position that left it no choice but to enter the contract. Although threats of criminal or tortious conduct clearly are wrongful, under the doctrine of “economic duress” courts have held that other threats can be wrongful and hence the basis of a duress defense. Courts, however, have not developed a coherent understanding of what makes such non-criminal and non-tortious threats wrongful.

This Article proposes that a threat should be wrongful when …

It's Not Over 'Til It's Over: Mandating Federal Pretrial Jurisdiction And Oversight In Mass Torts, Tanya Pierce

Faculty Scholarship

In 2004, just five years after introducing the drug, Vioxx, pharmaceutical company, Merck, voluntarily withdrew the prescription pain-killer after a clinical study suggested that the drug increased the risk of heart attack and stroke. But in that relatively short time, an estimated 20 million Americans had already taken the drug. By late 2007, Merck announced it would pay $4.85 billion — the largest drug settlement ever — in “global settlements” for Vioxx-related claims. These settlements ultimately included roughly 47,000 individual lawsuits and about 265 potential class actions, but the Vioxx settlements were far from global.

In 2012, a purported parallel …

How Do The Elderly Fare In Medical Malpractice Litigation, Before And After Tort Reform? Evidence From Texas, Myungho Paik, Bernard S. Black, David A. Hyman, William M. Sage, Charles M. Silver

Faculty Scholarship

The elderly account for a disproportionate share of medical spending, but little is known about how they are treated by the medical malpractice system, or how tort reform affects elderly claimants. We compare paid medical malpractice claims brought by elderly plaintiffs in Texas during 1988–2009 to those brought by adult non-elderly plaintiffs. Controlling for healthcare utilization (based on inpatient days), elderly paid claims rose from about 20% to about 40% of the adult non-elderly rate by the early 2000s. Mean and median payouts per claim also converged, although the elderly were far less likely to receive large payouts. Tort reform …

Estimating The Effect Of Damages Caps In Medical Malpractice Cases: Evidence From Texas, David A. Hyman, Bernard Black, Charles Silver, William M. Sage

Faculty Scholarship

Using claim-level data, we estimate the effect of Texas's 2003 cap on non-economic damages on jury verdicts, post-verdict payouts, and settlements in medical malpractice cases closed during 1988–2004. For pro-plaintiff jury verdicts, the cap affects 47-percent of verdicts and reduces mean allowed non-economic damages, mean allowed verdict, and mean total payout by 73-percent, 38-percent, and 27-percent, respectively. In total, the non-econ cap reduces adjusted verdicts by $156M, but predicted payouts by only $60M. The impact on payouts is smaller because a substantial portion of the above-cap damage awards were not being paid to begin with. In cases settled without trial, …

Understanding And Problematizing Contractual Tort Subrogation, Brendan S. Maher, Radha A. Pathak

Faculty Scholarship

The modern incarnation of tort subrogation allows an insurer to force its insured to turn over the litigation proceeds independently obtained by the insured against a third-party tortfeasor, even if the insured has not been made whole by such litigation. This Article demonstrates that such a result is the product of a subrogation-as-contract paradigm that has taken hold in the federal system, most notably by the United States Supreme Court in Sereboff v. Mid-Atlantic Services, 547 U.S. 356 (2006). More importantly, the Article illustrates the conceptual and historical roots of subrogation to demonstrate the extent to which subrogation-as-contract is divorced …

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 …

Dances With Elephants: Administrative Resolution Of Medical Injury Claims By Medicare Beneficiaries, Eleanor D. Kinney, William M. Sage

Faculty Scholarship

In our judgment, Hoffmann and Rowthorn's research clearly demonstrates that the QIO-based complaint review process does not provide genuine relief to beneficiaries. People who complain typically want an explanation of their bad experience, compensation for harm they may have suffered, and assurance that future experiences will be better for themselves and for others. Medicare beneficiaries, however, receive minimal information about the resolution of their complaints and no substantive relief whatsoever.

As Hoffmann and Rowthorn point out, several reform proposals are now before Congress, including moving the beneficiary complaint function from QIOs to new "Medicare Provider Review Organizations." It is not …

Why Are Demonstrations Of Comprehensive Malpractice Reform So (At All) Controversial, William M. Sage

Faculty Scholarship

We are currently coming to the end of what I have described as the first malpractice crisis of the 21st century. Malpractice crises, which are defined by shrinking liability coverage and/or rising premiums, occur periodically. The insurance crisis that now seems to be ebbing was different in certain ways from its 20th century predecessors, but will almost certainly not be the last such period to arise. As interest in "solving" this crisis wanes for various reasons, we have to ask what we have learned from the last five years. In my opinion, this crisis has produced strong arguments for testing …

Do Defendants Pay What Juries Award? Post-Verdict Haircuts In Texas Medical Malpractice Cases, 1988–2003, David A. Hyman, Bernard Black, Kathryn Zeiler, Charles Silver, William M. Sage

Faculty Scholarship

Legal scholars, legislators, policy advocates, and the news media frequently use jury verdicts to draw conclusions about the performance of the tort system. However, actual payouts can differ greatly from verdicts. We report evidence on post-verdict payouts from the most comprehensive longitudinal study of matched jury verdicts and payouts. Using data on all insured medical malpractice claims in Texas from 1988–2003 in which the plaintiff received at least $25,000 (in 1988 dollars) following a jury trial, we find that most jury awards received “haircuts.” Seventy-five percent of plaintiffs received a payout less than the adjusted verdict (jury verdict plus prejudgment …

Bridging The Relational-Regulatory Gap: A Pragmatic Information Policy For Patient Safety And Medical Malpractice, William M. Sage, Joshua Graff Zivin, Nathaniel B. Chase

Faculty Scholarship

The Article distinguishes and explores three categories of information use: Helping patients understand and participate in their care; Improving patient safety, including analyzing medical errors and identifying unsafe health care providers and practices; and Assessing the performance of the medical liability system in its many dimensions including deterrence, compensation, justice, administrative efficiency, and stability.

For each category, the Article comments on existing laws or programs for information reporting or disclosure, points out major tensions or ambiguities, and suggests pragmatic improvements.

Resolving Medical Malpractice Claims In The Medicare Program: Can It Be Done?, Eleanor D. Kinney, William M. Sage

Faculty Scholarship

There is increasing interest in an integrated approach to patient safety and medical liability among policymakers. We have proposed Medicareled malpractice reform that would provide Medicare beneficiaries with better safety, improved communication in the event of error, preservation of therapeutic relationships, timely settlement, and fair compensation at a lower administrative cost. Disputes in the reformed system would be adjudicated by Medicare's existing administrative appeals system that would work together with Medicare's quality improvement regulation and payment policy to reduce errors and compensate injured patients.

Despite the laudable rationale for Medicare-led malpractice reform, important issues attend the constitutional and statutory authority …

The Role Of Medicare In Medical Malpractice Reform, William M. Sage

Faculty Scholarship

The medical malpractice crisis we think we are in is not the medical malpractice crisis we actually are in. Today's malpractice crisis is not an epidemic of lawsuits, impressionable juries, or even excessive insurance premiums. The real medical malpractice crisis is that the law has formed little connection between the malpractice system and the health care system.

Malpractice Reform As A Health Policy Problem, William M. Sage

Faculty Scholarship

Calling malpractice reform a "health policy problem" means that we should analyze it in terms of the quality of health care, access to health care, and the cost of health care-the basic health policy triad with which we all are familiar. We immediately recognize patient safety as a health policy problem because it is obviously about quality. We may believe there is so much slack in the health care system that we can make major improvements in patient safety without excessive cost. But ultimately, there are going to be cost-safety tradeoffs, which are also health policy concerns. We tend not …

Public Medical Malpractice Insurance: An Analysis Of State-Operated Patient Compensation Funds, Frank A. Sloan, Carrie A. Mathews, Christopher J. Conover, William M. Sage

Faculty Scholarship

Compared to major tort and insurance reforms, PCFs have received virtually no attention by scholars. With an exception or two, they are not a major focus of public policy debate either. Because they are small organizations and there have been lengthy periods in which medical malpractice markets are quiescent, they have not attracted much scrutiny. Given a lack of quantitative evidence, our evaluation depended on qualitative evidence. Yet PCFs address the fundamental issues of medical malpractice that have led to reoccurring crises in the availability of medical malpractice insurance coverage and in its premiums for such coverage. As such, PCFs …

Medical Malpractice Insurance And The Emperor's Clothes, William M. Sage

Faculty Scholarship

Tom Baker and Mark Geistfeld's contributions to this Symposium offer detailed and persuasive analyses of medical malpractice insurance. Their principal contribution to the malpractice reform debate, however, is simple: confirming that liability insurers should not be left to their own devices between malpractice crises or appeased during crisis periods. Instead, liability insurance must be consciously designed to help the health care system work toward its core goals of high quality, broad access, and affordable cost.

In 2000, the IOM issued a follow-up report to its earlier indictment of medical error, calling upon the health care system to become safe, effective, …

Legal Malpractice Insurance: Surviving The Perfect Storm, Susan Saab Fortney

Faculty Scholarship

This article serves as a practical guide to legal malpractice insurance. Part I introduces the topic of legal malpractice insurance with a brief overview of the changes that occurred in market conditions in 2000 and the subsequent effect on insurance premiums and coverage. Part II outlines the different types of insurance coverage that are available to legal professionals by describing common policy terms, exclusions, and conditions that affect coverage. Part III describes changes in law firms that may affect coverage. Part IV provides legal professionals with useful advice to consider when choosing an insurance policy. Part V reveals important factors …

Law And Economics And Tort Law: A Survey Of Scholarly Opinion, Andrew P. Morriss, John C. Moorhouse, Robert Whaples

Faculty Scholarship

Recent litigation brought against cigarette manufacturers, software companies over potential year 2000 computer problems, and a fast food restaurant for serving coffee that was allegedly too hot reminds us of the importance and dynamic nature of tort law in the United States. Judging from ongoing coverage by newspapers and television, tort law is newsworthy. Yet, as with other legal issues, it is within the covers of law reviews and specialty journals in economics that much of the debate over the social utility of various tort rules and their reform takes place. In that debate law and economics exercises great influence. …

A World That Won't Stand Still: Enterprise Liability By Private Contract, William M. Sage, James M. Jorling

Faculty Scholarship

The purpose of this article is to help health care providers and insurers create such an approach by explaining the benefits and risks of voluntarily reassigning liability for medical injury along an enterprise liability model, and by outlining the legal and contractual elements that are required to do so successfully.

Texas Bucks The Trend - No Cause Of Action For Lost Chance Of Survival In The Medical Malpractice Context: Kramer V. Lewisville Memorial Hospital, Wayne Barnes

Faculty Scholarship

Jennie Kramer visited her gynecologist in August 1985 complaining of unusual discharges and intermittent bleeding. At that time, her doctor informed her that she tested negative for cancer. Her irregular bleeding continued, but on two subsequent visits to another doctor in November and December, Ms. Kramer was again informed that she did not have cancer. During February of 1986, after continued bleeding, Ms. Kramer detected a hard spot in her vagina. She returned to the second doctor a third time, at which time she was diagnosed with cancer. In spite of subsequent exploratory surgery and chemotherapy, Ms. Kramer died on …

Drug Product Liability And Health Care Delivery Systems, William M. Sage

Faculty Scholarship

This note will use the principles of law and economics to examine the interaction of market structures and product liability rules in a world of imperfect information. The goals of the analysis are to create incentives for optimal care by producers and consumers, induce the socially appropriate amount of consumption of each product (often referred to as the "activity level"), and minimize the costs of bearing the risk of injury. The note will conclude that the existence of health maintenance organizations ("HMOs") and similar prepaid providers with superior information capacity and total patient care responsibility may create a context in …