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 …

Which Interests Should Tort Protect?, Jean M. Thomas

Jean M Thomas

The paper asks the question of what justifies the practice of tort law. It asks the question with a particular focus: which interests should tort protect? The paper argues that tort selects and protects a determinate set of interests even if we do not take it to be doing so. The second claim advanced in the paper is that tort law is constitutive of political society in the sense that it expresses our sense of ourselves as persons within society, and our sense of what we owe one another. Given that tort law inevitably selects a particular set of interests …

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 …

Organizational Standards Of Care For Tackling Wrongdoings, Klaus Heine, Kateryna Grabovets

Kateryna Grabovets

Organizational misconduct has two generic sources: individual wrongdoings and coordination failures. The analysis of misconduct in organizations focuses mainly on individual wrongdoings. This paper aims at shedding more light on coordination failures as a separate trigger of organizational wrongdoing. We propose a framework which aligns insights from law and economics and organizational science to improve organizational designs with regard to error management. A main finding is that a risky activity will be associated with a steeper hierarchy than activities with a low risk profile. But the organizational design depends on other variables as well; for example, whether an innovative activity …

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. …

Comparative Negligence And Mitigation Of Damages - Two Sister Doctrines In Search Of Reunion, Yehuda Adar Dr.

Yehuda Adar Dr.

This article addresses a neglected problem in Anglo-American tort law, namely, the apparent inconsistency between comparative negligence and mitigation of damages. Notwithstanding the now unquestionable victory of comparative negligence over the old all-or-nothing doctrine of contributory negligence, the doctrine of mitigation (or avoidable consequences) seems to retain its doctrinal integrity. Under comparative negligence, any loss that the victim could have avoided is apportioned between the victim and the tortfeasor. In contrast, under the doctrine of mitigation, a tort victim can never recover for any element of loss that could have been avoided. The apparent tension between these two loss allocation …

Comparative Negligence And Mitigation Of Damages: Two Sister-Doctrines In Search Of Reunion, Yehuda Adar Dr.

Yehuda Adar Dr.

This article addresses a neglected problem in Anglo-American tort law, namely, the apparent inconsistency between comparative negligence and mitigation of damages. Notwithstanding the now unquestionable victory of comparative negligence over the old all-or-nothing doctrine of contributory negligence, the doctrine of mitigation (or avoidable consequences) seems to retain its doctrinal integrity. Under comparative negligence, any loss that the victim could have avoided is apportioned between the victim and the tortfeasor. In contrast, under the doctrine of mitigation, a tort victim can never recover for any element of loss that could have been avoided. The apparent tension between these two loss allocation …

Comparative Negligence And Mitigation Of Damages: Two Sister-Doctrines In Search Of Reunion, Yehuda Adar Dr.

Yehuda Adar Dr.

This article addresses a neglected problem in Anglo-American tort law, namely, the apparent inconsistency between comparative negligence and mitigation of damages. Notwithstanding the now unquestionable victory of comparative negligence over the old all-or-nothing doctrine of contributory negligence, the doctrine of mitigation (or avoidable consequences) seems to retain its doctrinal integrity. Under comparative negligence, any loss that the victim could have avoided is apportioned between the victim and the tortfeasor. In contrast, under the doctrine of mitigation, a tort victim can never recover for any element of loss that could have been avoided. The apparent tension between these two loss allocation …

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 …

Blue Jeans, Chewing Gum, And Climate Change Litigation: American Exports To Europe, Daniel Hare

Daniel Hare

This paper analyzes how American-style climate change litigation might be adopted by the European Union (EU) and projects potential methods by which the EU might employ the U.S. model, if it indeed chooses to take the climate change battle to the courts. By synthesizing existing U.S. case law in the environment and climate change fields, the paper roughly defines the “American model” of climate change litigation as parens patriae actions, oftentimes based in the tort of public nuisance, brought by states and other sovereign entities against polluter-defendants. The structural differences between the common law United States and predominantly civil law …

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 Law And Economics Of Products Liability, Keith N. Hylton

Keith N Hylton

This paper presents a largely positive analysis of products liability law, in the sense that it aims to predict the incentive effects and the welfare consequences of the law, with close regard to its specific legal tests and the real-world constraints that impinge on these tests. The other major part of this paper is a normative assessment of the parts of products liability law that should be reformed. In contrast with the prevailing law and economics literature suggesting that products liability law reduces social welfare, I argue that the law probably improves social welfare, though it is in need of …

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

Brittan J Bush

No abstract provided.

What Do Kim Kardashian And Lance Armstrong Have In Common?: Celebrity Complaints In The Classroom, Amy K. Langenfeld

Amy K Langenfeld

Every day brings a report of a celebrity suing or being sued. The complaints initiating these suits are available online within hours. Regardless of the merits or outcomes of these complaints by or against celebrities, celebrity complaints are a rich source of samples for the law school classroom. As supplements to course materials in civil procedure or legal writing, celebrity complaints are likely to generate discussion for several reasons. First, they show a range of strategies and persuasive writing techniques. Second, they engage students because they are real world documents, and because they have a pop culture setting. Third, they …

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 …

Stepping Away From The Abyss? Will The Supreme Court Preclude Extraterritorial Application Of The Alien Tort Statute?, Richard O. Faulk

Richard Faulk

Policymakers find themselves increasingly occupied with ATS claims arising from conduct that occurred in other countries and which has no significant connection to the United States — claims that may not be consistent with our own government’s policies for promoting human rights. Although this issue of “extraterritorial” application has been inherent in every ATS case that has involved injuries caused by foreign corporations outside the United States, it has evaded review in every instance, and — until the Supreme Court heard arguments recently in Kiobel v. Royal Dutch Petroleum — it appeared that the proliferation of ATS cases in that …

A Distortion-Analysis Protocol For Economic-Efficiency Analysis: A Third-Best-Economically-Efficient Response To The General Theory Of Second Best, Richard S. Markovits

Richard S. Markovits

No abstract provided.

Contratto Di Appalto, Difformità E Vizi E Responsabilità Dell'appaltatore, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

Battleground In The Classroom - Disabled Students And Section 1983 Claims, J. Richard Caldwell Jr., Darryl Lee Gavin, Lauren Fackender Carmody

J. Richard Caldwell Jr.

Battleground in the Classroom – Disabled Students and Section 1983 Claims Synopsis Over the last 30 years, there has been a surge of lawsuits filed against teachers and school personnel alleging violations of students' rights under 42 U.S.C. section 1983. While courts have cautioned that section 1983 is not a substitute for state tort law, cases have arisen in a variety of school contexts. Among these have been several cases involving students under disabilities of one kind or another. In general, most courts hold that to be actionable under section 1983, the alleged conduct must "shock the conscience" of the …

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 …