Law Commons^™

Should Automakers Be Responsible For Accidents?, Kyle D. Logue

Articles

Motor vehicles are among the most dangerous products sold anywhere. Automobiles pose a larger risk of accidental death than any other product, except perhaps opioids. Annual autocrash deaths in the United States have not been below 30,000 since the 1940s, reaching a recent peak of roughly 40,000 in 2016. And the social cost of auto crashes goes beyond deaths. Auto-accident victims who survive often incur extraordinary medical expenses. Those crash victims whose injuries render them unable to work experience lost income. Auto accidents also cause nontrivial amounts of property damage—mostly to the automobiles themselves, but also to highways, bridges, or …

Tort Justice Reform, Paul David Stern

University of Michigan Journal of Law Reform

This Article calls for a comprehensive reform of public tort law with respect to law enforcement conduct. It articulates an effective and equitable remedial regime that reconciles the aspirational goals of public tort law with the practical realities of devising payment and disciplinary procedures that are responsive to tort settlements and judgments. This proposed statutory scheme seeks to deter law enforcement misconduct without disincentivizing prudent officers from performing their duties or overburdening them with extensive litigation. Rather than lamenting the dissolution of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics or the insurmountability of qualified immunity, reform …

The Deterrence Case For Comprehensive Automaker Enterprise Liability, Kyle D. Logue

Journal of Law and Mobility

This Article lays out the potential (at this point purely theoretical) deterrence benefits of replacing our current auto tort regime (including auto products liability law, driver-based negligence claims, and auto no-fault regimes) with a single, comprehensive automaker enterprise liability system. This new regime would apply not only to Level 5 vehicles, but to all automobiles made and sold to be driven on public roads. Because such a system would make automakers unconditionally responsible for the economic losses resulting from any crashes of their vehicles, it would in effect make automakers into auto insurers as well, although such a change will …

Why Exempting Negligent Doctors May Reduce Suicide: An Empirical Analysis, John Shahar Dillbary, Griffin Edwards, Fredrick E. Vars

Indiana Law Journal

This Article is the first to empirically analyze the impact of tort liability on suicide. Counter-intuitively, our analysis shows that suicide rates increase when potential tort liability is expanded to include psychiatrists—the very defendants who would seem best able to prevent suicide. Using a fifty-state panel regression for 1981 to 2013, we find that states which allowed psychiatrists (but not other doctors) to be liable for malpractice resulting in suicide experienced a 9.3% increase in suicides. On the other hand, and more intuitively, holding non-psychiatrist doctors liable de-creases suicide by 10.7%. These countervailing effects can be explained by psychiatrists facing …

It Is Time For Washington State To Take A Stand Against Holmes's Bad Man: The Value Of Punitive Damages In Deterring Big Business And International Tortfeasors, Jackson Pahlke

University of Michigan Journal of Law Reform

In Washington State, tortfeasors get a break when they commit intentional torts. Instead of receiving more punishment for their planned bad act, intentional tortfeasors are punished as if they committed a mere accident. The trend does not stop in Washington State—nationwide, punitive damage legislation inadequately deters intentional wrongdoers through caps and outright bans on punitive damages. Despite Washington State’s one hundred and twenty-five year ban on punitive damages, it is in a unique and powerful position to change the way courts across the country deal with intentional tortfeasors. Since Washington has never had a comprehensive punitive damages framework, and has …

Party Autonomy In Tort Theory And Reform, Christopher Robinette

Christopher J Robinette

Changing Tides: The Introduction Of Punitive Damages Into The French Legal System, Matthew K.J. Parker

Georgia Journal of International & Comparative Law

No abstract provided.

A Financial Economic Theory Of Punitive Damages, Robert J. Rhee

Michigan Law Review

This Article provides a financial economic theory of punitive damages. The core problem, as the Supreme Court acknowledged in Exxon Shipping Co. v. Baker, is not the systemic amount of punitive damages in the tort system; rather it is the risk of outlier outcomes. Low frequency, high severity awards are unpredictable, cause financial distress, and beget social cost. By focusing only on offsetting escaped liability, the standard law and economics theory fails to account for the core problem of variance. This Article provides a risk arbitrage analysis of the relationship between variance, litigation valuation, and optimal deterrence. Starting with settlement …

The Peculiar Challenges Posed By Latent Diseases Resulting From Mass Products, Donald G. Gifford

Donald G Gifford

Legal actions against manufacturers of products that cause latent diseases, such as asbestos products, cigarettes, lead-pigment, and Agent Orange, are the signature torts of our time. Yet within this rather important subset of tort liability, it is unlikely that the imposition of liability actually results in loss prevention. Three factors, present in varying combinations in the context of latent diseases resulting from product exposure, frustrate the deterrent impact of liability. First, an extended period of time—sometimes decades—passes between the time of the manufacturer’s distribution of the product and the imposition of liability. Second, the accident compensation system frequently is unable …

Coordinating Sanctions In Torts, Kyle D. Logue

Articles

This Article begins with the standard Law and Economics account of tort law as a regulatory tool or system of deterrence, that is, as a means of giving regulated parties the optimal ex ante incentives to minimize the costs of accidents. Building on this fairly standard (albeit not universally accepted) picture of tort law, the Article asks the question how tort law should adjust, if at all, to coordinate with already existing non-tort systems of regulation. Thus, if a particular activity is already subject to extensive agency-based regulation (whether in the form of command-and-control requirements or in the form of …

Gambling With The Health Of Others, Stephen P. Teret, Jon S. Vernick

Michigan Law Review First Impressions

The health and wellbeing of the public is, in part, a function of the behavior of individuals. When one individual’s behavior places another at a foreseeable and easily preventable risk of illness or injury, tort liability can play a valuable role in discouraging that conduct. This is true in the context of childhood immunization.

Letting Good Deeds Go Unpunished: Volunteer Immunity Laws And Tort Deterrence, Jill R. Horwitz, Joseph Mead

Articles

Does tort law deter risky behavior in individuals? We explore this question by examining the relationship between tort immunity and volunteering. During the 1980s and 1990s, nearly every state provided some degree of volunteer immunity. Congress followed with the 1997 Volunteer Protection Act. This article analyzes these acts, identifying three motivations for them: the chilling effects of tort liability, limits on liability insurance, and moral concerns. Using data from the Independent Survey’s Giving and Volunteering surveys, we then identify a large and positive correlation between immunity and volunteering. We next consider the implications of the findings for tort theory and …

Cafa's Impact On Litigation As A Public Good, Elizabeth Chamblee Burch

Scholarly Works

Class actions regulate when government fails. Perhaps this use as an ex post remedy when ex ante regulation founders explains the fervor and rhetoric surrounding Rule 23's political life. In truth, the class action does more than aggregate; it augments government policing and generates external societal benefits. These societal benefits - externalities - are the spillover effects from facilitating small claims litigation. In federalizing class actions through the Class Action Fairness Act (CAFA), Congress, in some ways, impeded class action practice, thereby negating its positive externalities and inhibiting backdoor regulation. This Article critically considers those effects on the common good. …

Operationalizing Deterrence Claims Management (In Hopsitals, A Large Retailer, And Jails And Prisons), Margo Schlanger

Articles

The theory that the prospect of liability for damages deters risky behavior has been developed in countless articles and books. The literature is far sparser, however, on how deterrence is operationalized. And prior work slights an equally important effect of damage actions, to incentivize claims management in addition to harm-reduction responses that are cost- rather than liabilityminimizing. This article works in the intersection of these two understudied areas, focusing on claims management steps taken by frequently sued organizations, and opening a window into the black box of deterrence to see how those steps may end up serving harm-reduction purposes as …

Optimal Tax Compliance And Penalties When The Law Is Uncertain, Kyle D. Logue

Articles

This article examines the optimal level of tax compliance and the optimal penalty for noncompliance in circumstances in which the substance of the tax law is uncertain - that is, when the precise application of the Internal Revenue Code to a particular situation is not clear. In such situations, a number of interesting questions arise. This article will consider two of them. First, as a normative matter, how certain should taxpayers be before they rely on a particular interpretation of a substantively uncertain tax rule? If a particular position is not clearly prohibited but neither is it clearly allowed, what …

Second Best Damage Action Deterrence, Margo Schlanger

Articles

Potential defendants faced with the prospect of tort or tort-like damage actions can reduce their liability exposure in a number of ways. Prior scholarship has dwelled primarily on the possibility that they may respond to the threat of liability by augmenting the amount of care they take.1 Defendants (I limit myself to defendants for simplicity) will increase their expenditures on care, so the theory goes, when those expenditures yield sufficient liability-reducing dividends; more care decreases liability exposure by simultaneously making it less likely that the actors will be found to have behaved tortiously in the event of an accident and …

The Cultural Evolution Of Tort Law, Stuart Madden

ExpressO

THE CULTURAL EVOLUTION OF TORT LAW* Abstract The Institutes of Justinian and other Greco-Roman recitations of tort-type delicts and remedies are recognized as root stock of modern western tort law, common law or civil code-based alike. Long before these sources, however, both ancient and primitive cultures adopted norms and customs which defined permissible individual and group conduct, and which provided for remedies ranging from money damages to banishment. Among the surveyed examples of ancient cultural responses to tort-type delicts were numerous instances in which both the civil wrong identified and the remedy provided for can be harmonized readily with modern …

The Peculiar Challenges Posed By Latent Diseases Resulting From Mass Products, Donald G. Gifford

Faculty Scholarship

Legal actions against manufacturers of products that cause latent diseases, such as asbestos products, cigarettes, lead-pigment, and Agent Orange, are the signature torts of our time. Yet within this rather important subset of tort liability, it is unlikely that the imposition of liability actually results in loss prevention. Three factors, present in varying combinations in the context of latent diseases resulting from product exposure, frustrate the deterrent impact of liability. First, an extended period of time—sometimes decades—passes between the time of the manufacturer’s distribution of the product and the imposition of liability. Second, the accident compensation system frequently is unable …

The Genie And The Bottle: Collateral Sources Under The September 11th Victim Compensation Fund, Kenneth S. Abraham, Kyle D. Logue

Articles

The September 11th Victim Compensation Fund of 2001 (the Fund) was part of legislation enacted just eleven days after the terrorist attacks of September 11th in the wake of extraordinary national loss. It is possible, therefore, that the Fund will always be considered an urgent and unique response to the unprecedented events of September 11th. On that view, the character of the Fund will have little longterm policy significance. It is equally possible, however, that the enactment of the Fund will prove to be a seminal moment in the history of tort and compensation law. The Fund adopts a new …

Legal Transitions, Rational Expectations, And Legal Progress, Kyle D. Logue

Articles

In the literature on legal transitions, the term "transition policy" is generally understood to mean a rule or norm that influences policymakers' decisions concerning the extent to which legal change should be accompanied by transition relief, whether in the form of grandfathering or phase-ins or direct compensation. Legal change within this literature is defined broadly, and somewhat counter-intuitively, to include any resolution of the uncertainty regarding what the law will be in the future or how the law will be applied to future circumstances. Thus, a legal change would obviously include an unexpected repeal of a tax provision, such as …

Inmate Litigation, Margo Schlanger

Articles

In 1995, prison and jail inmates brought about 40,000 new lawsuits in federal court nearly a fifth of the federal civil docket. Court records evidence a success rate for inmate plaintiffs under fifteen percent. These statistics highlight two qualities long associated with the inmate docket: its volume and the low rate of plaintiffs' success. Then, in 1996, Congress enacted the Prison Litigation Reform Act (PLRA), which dramatically altered the litigation landscape, restricting inmates' access to federal court in a variety of ways. This Article examines inmate litigation before and after the PLRA. Looking first at the litigation process itself, it …

Why Civil Rights Lawsuits Do Not Deter Police Misconduct: The Conundrum Of Indemnification And A Proposed Solution, Richard Emery, Ilann Margalit Maazel

Fordham Urban Law Journal

This essay argues that indemnification of police officers found liable in civil suits works against deterring officers from future misconduct. The essay explains how the existing indemnification scheme results in tax payers funding these judgments and settlements and explains the mechanisms surrounding representation of a defendant officer and the city's indemnification of a decision. The author suggests a solution that allows for compensation of plaintiffs and deterrence of officers. Under the proposed solution, judges should always allow compensation for plaintiffs but should consider the officer's prior history of misconduct, the disciplinary measures taken against such misconduct, and the defendant's ability …

"Crimtorts" As Corporate Just Deserts, Thomas Koenig, Michael Rustad

University of Michigan Journal of Law Reform

Just as Grant Gilmore described "contorts" that lie on the borderline between contract and tort law, the authors coin the term "crimtort" to identify the expanding common ground between criminal and tort law. Although the concept of crimtort can be broadly applied to many areas of the law, this Article focuses on the primary crimtort remedy - punitive damages. The deterrent power of punitive damages lies in the wealth-calibration of the defendant's punishment. For corporations this means that punitive damages will reflect the firm's net income or net worth. The theoretical danger is that juries will abuse wealth by redistributing …

Utility And Community: Musings On The Tort/Crime Distinction, Stephen G. Marks

Faculty Scholarship

In this Paper, I propose the following two step procedure to explain both the inclusion and exclusion of criminal utility. As a first step, I posit a full compliance utility function. This utility function includes all utilities for all activities and incorporates an assumption that all members of society will forego prohibited activities. Aa s preliminary matter, I will also presuppose common information and shared values within the community. I suggest that maximization of full compliance social utility determines what society prohibits. As a second step, I strip the social utility function of the utility from prohibited activities and drop …

Solving The Judgment-Proof Problem, Kyle D. Logue

Articles

A tortfeasor who cannot fully pay for the harms that it causes is said to be "judgment proof." Commentators have long recognized that the existence of judgment-proof tortfeasors seriously undermines the deterrence and insurance goals of tort law. The deterrence goal is undermined because, irrespective of the liability rule, judgment-proof tortfeasors will not fully internalize the costs of the accidents they cause. The insurance goal will be undermined to the extent that the judgment-proof tortfeasor will not be able to compensate fully its victims and that first-party insurance markets do not provide an adequate response. Liability insurance can ameliorate these …

Proportional Liability: Statistical Evidence And The Probability Paradox, David A. Fischer

Faculty Publications

Three major policies underlie tort liability: deterrence, compensation, and corrective justice. A primary justification for proportional liability is its alleged superiority in advancing the tort policy of deterrence. This Article demonstrates a significant flaw in this claim by showing that the use of tort liability in multiple cause cases involving statistical evidence in fact serves the policy of deterrence quite poorly.

The First-Party Insurance Externality: An Economic Justification For Enterprise Liability, Jon D. Hanson, Kyle D. Logue

Articles

This Article explores the insurance and deterrence implications of important and long overlooked facts. Consumers are insured through first-party mechanisms against most of the risks of product accidents. However, first-party insurers rarely and imperfectly adjust premiums according to an individual consumer's decisions concerning exactly what products she will purchase, how many of those products she will purchase, and how carefully she will consume them. Such consumer decisions we refer to as "consumption choices. " This failure by first-party insurers to adjust premiums according to consumption choices gives rise to a first-party insurance externality. Based on this insight, this Article offers …

Punishment: The Civil Perspective Of Punitive Damages, Bailey Kuklin

Cleveland State Law Review

Punitive, or exemplary damages, have been recognized in the Anglo-American common law systems for two centuries. This Article explores the consequences of treating punitive damages as a private means of punishment. Light is shed on the controversies surrounding, first, the attempt to adopt a standard of punishment, private or public, and second, to apply such a standard. The concentration on punitive damages for this exploratory undertaking, instead of criminal sanctions, avoids the need to account for additional imputed public penal purposes, such as rehabilitation and isolation. As a preliminary matter, the emphasis of this Article should be made clear. The …

Road Signs And The Goals Of Justice, Joseph Sanders

Michigan Law Review

Review of Ideals, Beliefs, Attitudes, and the Law: Private Law Perspectives on a Public Law Problem by Guido Calabresi

Deterrence And Desert In Tort: A Comment, David G. Owen

Faculty Publications

No abstract provided.