Law Commons^™

Determining The Fair And Reasonable Value Of Medical Services: The Affordable Care Act, Government Insurers, Private Insurers And Uninsured Patients, George A. Nation Iii

George A Nation III

Hospitals' chargemaster prices are grossly inflated; no one should be required to pay them. Thia article offers a formula to determine the fair and reasonable value of medical services.

The Problem Of Internalization Of Social Costs And The Ideas Of Ronal Coase, Enrico Baffi

enrico baffi

This work examines the influence of Coasian thought on the analysis of externalities as used by economists and legal economists. Ronald Coase, a Chicago scholar, advanced a series of criticisms of the Pigovian tax system; the theorem that bears his name is merely the best known. In his 1960 work, he sought to demonstrate that the internationalization of social costs was not always socially useful andd sometimes impossible. In addition, he identified other institutional solutions to which systems can - and often do - resort. One of these solutions is to simply authorize the harmful activity without introducing mechanisms to …

The Problem Of Internalization Of Social Costs And The Ideas Of Ronald Coase, Enrico Baffi

enrico baffi

This work examines the influence of Coasian thought on the analysis of externalities as used by economists and legal economists. Ronald Coase, a Chicago scholar, advanced a series of criticisms of the Pigovian tax system; the theorem that bears his name is merely the best known. In his 1960 work, he sought to demonstrate that the internationalization of social costs was not always socially useful and in many casesimossible. In addition, he identified other institutional solutions to which systems can - and often do - resort. One of these solutions is to simply authorize the harmful activity without introducing mechanisms …

The Problem Of Internalization Of Social Costs And The Ideas Of Ronald Coase, Enrico Baffi

enrico baffi

This work examines the influence of Coasian thought on the analysis of externalities as used by economists and legal economists. Ronald Coase, a Chicago scholar, advanced a series of criticisms of the Pigovian tax system; the theorem that bears his name is merely the best known. In his 1960 work, he sought to demonstrate that the internationalization of social costs was not always socially useful and also difficult if not impossible to realize. In addition, he identified other institutional solutions to which systems can - and often do - resort. One of these solutions is to simply authorize the harmful …

Extreme Sports And Extreme Liability: The Effect Of Waivers Of Liability In Extreme Sports, Amanda Greer

Amanda Greer

Athletes who participate in extreme sports know that by just participating in the sport, they are at a huge risk for injury. This risk for injury, however, should not include the negligent acts of the event’s sponsors and promoters. Before an athlete agrees to compete in an event, the athlete will generally sign a liability waiver that contains language absolving the sponsor from its own acts of negligence. These liability waivers in turn will bar an athlete from imposing liability on a sponsor for any injuries the athlete may sustain as a result of a sponsor’s negligence. The purpose of …

Intangible Economic Loss In Louisiana, John Stanton

John Stanton

This casenote follows the development of caselaw in Louisiana addressing the problem of intangible economic loss, (i.e., pure economic loss or supply-chain liability), an issue which all jurisdictions struggle to handle consistently. In particular, the piece notes the tension between the practicality of the Robins Dry Dock prohibitory rule and the equitable nature of using the standard negligence analysis. After noting the current state of confusion, a proposed way forward is suggested that allows for meritorious claims even without a proprietary interest, but does not allow for the industry-crippling liability of which the Robins Dry Dock progeny feared.

Efficiency Themes In Tort Law From Antiquity, M Stuart Madden

M Stuart Madden

Hellenic philosophers assessed the goals of society as: (1) the protection of persons and property from wrongful harm; (2) protection of the individual’s means of survival and prosperity; (3) discouragement of self-aggrandizement to the detriment of others; and (4) elevation of individual knowledge that would carry forward and perfect such principles. Roman law was replete with proscriptions against forced taking and unjust enrichment, and included rules for ex ante contract-based resolution of potential disagreement. Customary law perpetuated these efficient economic tenets within the Western World and beyond. The common law, in turn, has nurtured many of the same ends. From …

We Want Our Lives Back Too: Expanding Absolute Liability To Include A Recovery For The Victims Of Ecological Catastrophies, Prentice L. White

Prentice L White

WE WANT OUR LIVES BACK TOO: EXPANDING THE COVERAGE OF ABSOLUTE LIABILITY TO INCLUDE A RECOVERY FOR THE VICTIMS OF ECOLOGICAL CATASTROPHES BY PRENTICE L. WHITE No one could have anticipated that the worst ecological disaster in history would take place near Louisiana’s coastline. The morning of April 20, 2010, started like any other spring day, but less than ten hours after the sun rose that morning there would be an explosion that would kill 11 oil workers. The first from the explosion would be seen from outer space and millions of gallons of crude oil would spew into the …

The Global Supply Contract Charade: How Corporate Greed Fuels Human Trafficking And Forced Labor, Naomi Jiyoung Bang

Naomi J Bang

ABSTRACT: THE GLOBAL SUPPLY CONTRACT CHARADE

HOW CORPORATE GREED FUELS HUMAN TRAFFICKING AND FORCED LABOR

Human trafficking and forced labor reflect the dark side of globalization, where criminal gangs trade people through international channels via a rapidly growing network of electronic communications and transport. Unfortunately, it is not just the criminal element that is complicit in these activities. Multinational corporations also contribute through their massive global production chains, increasing chances that their products could be made by trafficked workers. Corporations also shift liability for these acts onto their overseas suppliers through “arm’s length” global supply contracts and by pointing to …

The Global Supply Contract Charade: How Corporate Greed Fuels Human Trafficking And Forced Labor, Naomi J. Bang

Naomi J Bang

HOW CORPORATE GREED FUELS HUMAN TRAFFICKING AND FORCED LABOR

Human trafficking and forced labor reflect the dark side of globalization, where criminal gangs trade people through international channels via a rapidly growing network of electronic communications and transport. Unfortunately, it is not just the criminal element that is complicit in these activities. Multinational corporations also contribute through their massive global production chains, increasing chances that their products could be made by trafficked workers. Corporations also shift liability for these acts onto their overseas suppliers through “arm’s length” global supply contracts and by pointing to the sheer geographic distance between them. …

Mistake-Proofing Medicine: Legal Considerations And Healthcare Quality Implications, Arlen W. Langvardt

Arlen W Langvardt

MISTAKE-PROOFING MEDICINE: LEGAL CONSIDERATIONS

AND HEALTHCARE QUALITY IMPLICATIONS

Authors: John R. Grout, John W. Hill, Arlen W. Langvardt (corresponding author).

Abstract

In 1999, the Institute of Medicine estimated that approximately 98,000 deaths resulted annually from medical errors. This shocking number does not appear to have lessened during the intervening years. Although mistake-proofing techniques similar to those that have proven useful in the product liability context hold great promise for reducing the number of medical errors, the adoption of such techniques in healthcare settings has not occurred to the extent it should have.

This article examines potentially useful mistake-proofing techniques, explores …

A Dangerous Distinction: The Deconstitutionalization Of Private Speech, Derigan Silver, Ruth Walden

Derigan Silver

In the mid-1960s the U.S. Supreme Court began applying a Meiklejohnian approach to certain First Amendment claims, using a self-government rationale to justify enhanced protection for freedom of expression on matters of public concern in cases involving defamation, false light invasion of privacy, government employees’ speech, and intentional infliction of emotional distress, as well as others. The Court, however, refrained from acknowledging the remainder of Meiklejohn’s argument — that private speech is outside the purview of the First Amendment and protected only by the Due Process Clause of the Fifth Amendment. In the wake of Supreme Court defamation rulings in …

Burdens Of Proof And Qualified Immunity, Kenneth J. Duvall

Kenneth J Duvall

Despite the need to strike a proper balance between effective § 1983 suits to deter government misconduct and corresponding, robust defenses to deter frivolous suits, courts across the nation cannot agree on the fundamental questions of what the proper defenses to § 1983 actions are or how to allocate the burdens of proof in such litigation. This Article would remedy this situation, proposing an approach that offers both a single defense to § 1983 claims and a uniform allocation of the burdens of proof when that defense is raised. In Part I, this Article briefly explains the burdens of proof, …

Torts As (Only) Wrongs?: An Empirical Perspective, Lawrence Solan, Joseph Sanders, Matthew Kugler, John Darley

Lawrence M. Solan

In this article, we report on several studies that explore peoples’ preferences for strict liability or negligence in assigning responsibility for accidents. Depending on the situation, a substantial percentage of individuals stand prepared to assign liability to actors who are not negligent. We relate these findings to current debate over whether the essence of tort law is compensation to victims for wrongs committed by defendants.

We begin with a brief discussion of the relative roles that strict liability and negligence play in the tort system, both historically and in current doctrine. In essence, both the scholarly literature and the law …

The Social Equality Function Of Punitive Damages, Brittan J. Bush

Brittan J Bush

No abstract provided.

Legal Applications Of Modern Finance, Matthew E. Cavanaugh Mba Cpa Esq.

Matthew E. Cavanaugh MBA CPA Esq.

While scholars and practitioners have applied economics to law successfully for decades, there has been almost no similar application of modern finance. Courts have used the central concept of classical finance, time value of money, for many years, but their use is still unsophisticated.

This article details two ways to apply modern finance to law. This article first describes a method of improving courts’ time value of money calculations, by using a systematically complete four factor analysis to determine the appropriate discount rate. This article then describes a method of calculating future damages that uses market price of risk, based …

Deceiving Law Students: Employment Statistics & Tort Liability, Angie D. Roberts-Huckaby

Angie D. Roberts-Huckaby

Controversy is rampant in American legal education. In less than a year, an unprecedented fourteen separate class action lawsuits have been filed against fourteen different law schools. The lawsuits each allege that the schools have disseminated postgraduate employment statistics in ways that are fraudulent and misleading. Students’ primary goal, when applying to law school, is to become lawyers. Law school is not an institution students attend merely to satisfy intellectual curiosity. Law school is a grueling three-year endurance race challenging student’s intellectual reasoning, emotional rationale, and financial security. Therefore, it is critical for students to choose the right school7 Law …

Taxing Your Tears: Section 104(A)(2) And The Real Reason To Cry, Richard Cameron Gower

Richard Cameron Gower

For nearly a century the federal government has been taxing the income of its citizens. For almost as long, it has been exempting damages paid in tort suits from that tax. Nonetheless, scholars cannot agree as to why the exemption should exist. Many justifications have been proposed but they all fail to rationalize the personal injury exemption. After considering and dismissing a variety of justifications for the personal injury tort exemption, this Article considers the sympathy-based rationale for the exemption, which claims that personal physical injury plaintiffs deserve favorable tax treatment because of their sympathetic situations. Though personal physical injury …

Reasonable Men, Ann Mcginley

Ann McGinley

Abstract

REASONABLE MEN

Ann C. McGinley

After the Supreme Court recognized sexual harassment as a form of sex discrimination under Title VII in Meritor Savings Bank v. Vinson, lower courts used the reasonable person standard to measure whether the behavior was sufficiently severe or pervasive to constitute a hostile working environment. Cultural and radical feminists objected to the reasonable person measure, and many supported a reasonable woman standard, which the Ninth Circuit adopted in Ellison v. Brady. Because of its tendency to essentialize how women would react, many feminists soon abandoned their support for the standard. A number of circuits, …

Reasonable Men, Ann Mcginley

Ann McGinley

Abstract

REASONABLE MEN

Ann C. McGinley

After the Supreme Court recognized sexual harassment as a form of sex discrimination under Title VII in Meritor Savings Bank v. Vinson, lower courts used the reasonable person standard to measure whether the behavior was sufficiently severe or pervasive to constitute a hostile working environment. Cultural and radical feminists objected to the reasonable person measure, and many supported a reasonable woman standard, which the Ninth Circuit adopted in Ellison v. Brady. Because of its tendency to essentialize how women would react, many feminists soon abandoned their support for the standard. A number of circuits, …

Intent And Consent In The Law Of Battery: Confusion And Controversy, Nancy J. Moore

Nancy J Moore

Abstract

“Intent and Consent in the Tort of Battery:

Confusion and Controversy”

Much of contemporary torts scholarship has been devoted to determining who should bear the costs of unintended injury, that is, whether and when defendants should be strictly liable for the harm caused by their activities, as opposed to limiting plaintiffs to recovery when they can prove that the defendant’s conduct was negligent. Comparatively little scholarship has explored the appropriate distinction between the intentional torts and the non-intentional torts, such as negligence or strict liability. Recently, torts scholars have begun to explore some interesting and unresolved questions surrounding the …

Intent And Consent In The Law Of Battery: Confusion And Controversy, Nancy J. Moore

Nancy J Moore

Abstract

“Intent and Consent in the Tort of Battery:

Confusion and Controversy”

Much of contemporary torts scholarship has been devoted to determining who should bear the costs of unintended injury, that is, whether and when defendants should be strictly liable for the harm caused by their activities, as opposed to limiting plaintiffs to recovery when they can prove that the defendant’s conduct was negligent. Comparatively little scholarship has explored the appropriate distinction between the intentional torts and the non-intentional torts, such as negligence or strict liability. Recently, torts scholars have begun to explore some interesting and unresolved questions surrounding the …

Atypical Actors And Tort Law's Expressive Function, Eli K. Best

Eli K. Best

The rule that an actor’s cognitive disability is not considered in determining whether the actor’s conduct was negligent has been consistently criticized for being unfair and illogical. Focusing on the law’s expressive function, the goals of the disability rights movement, and the heterogeneity of cognitive disability, this Article challenges the common scholarly refrain and argues that the rule is more progressive than the alternative. However, the rule’s articulated justifications may inadvertently perpetuate stereotypes about cognitive disability. Thus, this Article proposes new rationales for the rule, which will allow courts to retain the optimal rule without causing expressive harm.

A Prediction Is Worth Four Thousand Words: The Third Circuit Boldly Holds That The Supreme Court Of Pennsylvania Will Apply The Restatement (Third) In Covell V. Bell Sports, Inc., Craig Lawrence Bazarsky

Craig Bazarsky

The Third Circuit has struggled with whether to apply the Restatement (Second) of Torts or Restatement (Third) when sitting in diversity jurisdiction in Pennsylvania. This began in Berrier v. Simplicity Manufacturing, Inc., when the Third Circuit predicted that the Supreme Court of Pennsylvania would reject the Restatement (Second) and adopt the Restatement (Third). The Supreme Court of Pennsylvania was set to decide the issue in Bugosh v. I.U. North America, Inc., after granting allocatur in 2008; however, they dismissed the appeal as improvidently granted in 2009, and neither adopted the Restatement (Third) nor reaffirmed the Restatement (Second). The Third Circuit, …

Intent And Consent In The Law Of Battery: Confusion And Controversy, Nancy J. Moore

Nancy J Moore

Much of contemporary torts scholarship has been devoted to determining who should bear the costs of unintended injury, that is, whether and when defendants should be strictly liable for the harm caused by their activities, as opposed to limiting plaintiffs to recovery when they can prove that the defendant’s conduct was negligent. Comparatively little scholarship has explored the appropriate distinction between the intentional torts and the non-intentional torts, such as negligence or strict liability. Recently, torts scholars have begun to explore some interesting and unresolved questions surrounding the intentional torts, particularly battery, stemming in part from the completion of various …