Defending The Majoritarian Court,
2010
American University Washington College of Law
Defending The Majoritarian Court, Amanda Frost
Scholarly Articles in Law Reviews & Journals
No abstract provided.
Medical Malpractice Liability Crisis Or Patient Compensation Crisis?,
2010
Boston University School of Law
Medical Malpractice Liability Crisis Or Patient Compensation Crisis?, Kathryn Zeiler
Faculty Scholarship
Tort reform has been a hot topic among those interested in assessing whether and how well the tort system aids injured plaintiffs in achieving civil justice. The debate has been especially heated when it comes to medical malpractice liability. Until recently, rhetoric about the liability system and its relationship to insurance markets and physician supply dominated tort reform debates. While claims made by both proponents and opponents can seem intuitive, they are often unsubstantiated. In recent years, however, academics and others have acquired or created datasets to perform analyses to enhance our understanding of the relationship between the tort system …
The Supreme Court's Assault On Litigation: Why (And How) It Could Be Good For Health Law,
2010
Boston Univeristy School of Law
The Supreme Court's Assault On Litigation: Why (And How) It Could Be Good For Health Law, Abigail Moncrieff
Faculty Scholarship
In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend has had a significant impact on health law; the Court’s decisions have eliminated the private enforcement mechanism for at least four important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend of eliminating private rights of action in …
Coordinating Sanctions In Torts,
2010
University of Michigan Law School
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 …
Of Coase, Calabresi, And Optimal Tax Liability,
2010
University of Michigan Law School
Of Coase, Calabresi, And Optimal Tax Liability, Kyle D. Logue, Joel Slemrod
Articles
The Article proceeds as follows. Part II offers a primer on the Coase Theorem, beginning with the classic case of neighbor externalizing on neighbor (farmer and rancher), and it explains the basic invariance propositions. Part III shifts the focus to Coasean situations involving buyers and sellers in a market or contractual relationship, buyers and sellers whose market interactions cause harm to third parties. Using supply-and-demand diagrams, we illustrate (in a new way) some of the most basic findings of the economic analysis of law, including both the Coasean invariance and efficiency propositions and the Calabresian least-cost avoider idea. Also in …
The Multiple Common Law Roots Of Charitable Immunity: An Essay In Honor Of Richard Epstein's Contributions To Tort Law,
2010
University of Michigan Law School
The Multiple Common Law Roots Of Charitable Immunity: An Essay In Honor Of Richard Epstein's Contributions To Tort Law, Jill R. Horwitz
Articles
Professor Epstein has long promoted replacing tort-based malpractice law with a new regime based on contracts. In Mortal Peril, he grounded his normative arguments in favor of such a shift in the positive, doctrinal history of charitable immunity law. In this essay, in three parts, I critique Professor Epstein’s suggestion that a faulty set of interpretations in charitable immunity law led to our current reliance on tort for malpractice claims. First, I offer an alternative interpretation to Professor Epstein’s claim that one group of 19th and early 20th century cases demonstrates a misguided effort to protect donor wishes. Rather, I …
Two Masters,
2010
University of Michigan Law School
Two Masters, Carl E. Schneider
Articles
American government rests on the principle of distrust of government. Not only is power within the federal government checked and balanced. Power is divided between the federal government and the state governments. So what if a state law conflicts with a federal law? The Constitution says that the "Constitution, and the Laws of the United States ... shall be the supreme Law of the Land; ... any Thing in the ... Laws of any State to the Contrary notwithstanding." Sometimes the conflict between federal and state law is obvious and the Supremacy Clause is easily applied. But sometimes ...
