Mitchell Hamline School of Law
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Close Encounters of the Third Kind: The Third Restatement, Duty, and Foreseeability
Get PDFThe Restatement (Third) of Torts: Liability for Physical and Emotional Harm (the “Third Restatement”) was adopted by the American Law Institute in 2010. The approach taken by the Third Restatement to negligence law excludes foreseeability from the duty determination and places it squarely as a relevant factor in the breach issue; it adopts the “but-for” standard for causation; and rejects proximate cause terminology, instead utilizing a scope of liability approach in which the key question is whether the harms that occurred were of the same general type that made the actor’s conduct tortious. Removal of foreseeability from the duty determination is intended to provide a more principled approach to the duty issue, leaving policy decisions for the court and foreseeability issues for the jury. The Third Restatement makes it clear that it is the jury’s function to determine the facts and that if “reasonable minds can differ as to whether the conduct lacks reasonable care, it is the function of the jury to make that determination.”
This Article strums the divergent strings of foreseeability, to see how courts have dealt with that issue in the shadow of the Third Restatement. Part I covers rejections of the Third Restatement’s position on duty. Part II covers cases where courts have crossed paths with the Third Restatement but without adopting it. Part III focuses on the issues that arise when courts continue to rely on foreseeability in duty determinations. Part IV notes cases that track the Third Restatement’s position. Part V covers Minnesota’s approach to the issue, primarily to illustrate the impact of a liberal stance on the issue of whether summary judgment should be adopted in cases where foreseeability in the duty determination is disputed, a position that edges closer to the Third Restatement’s aspiration of a more appropriate judge-jury balance in negligence cases. Part VI covers jurisdictions adopting the Third Restatement’s approach to duty
The Dangerous Independent State Legislature Theory
Get PDFIn 2020, conservative justices and the Trump Campaign championed a theory, known as the independent state legislature doctrine, that claims voting rights protections in state constitutions do not apply to the election rules that state legislatures set for the federal elections in their states. Under the theory, state courts cannot review and enjoin these state election laws for state constitutional violations. This Article exposes the flaws and dangers of the independent state legislature theory. It deconstructs the justifications for its utility, revealing them as undertheorized and based on flawed assumptions of legislative behavior and flawed understandings of constitutional and institutional design. As for the danger, while our constitutional system generally provides dual federal-state protections for civil rights, the independent state legislature theory would effectively remove state constitutions as a safeguard for voting rights. In this way, the theory would make voting rights the least protected civil right
The Other Bar Hurdle: An Examination of the Character and Fitness Requirement for Bar Admission
Get PDFPatient Decision Aids Improve Patient Safety and Reduce Medical Liability Risk
Get PDFTort-based doctrines of informed consent have utterly failed to assure that patients understand the risks, benefits, and alternatives to the healthcare they receive. Fifty years of experience with the doctrine of informed consent have shown it to be an abject catastrophe. Most patients lack an even minimal understanding of their treatment options. But there is hope. Substantial evidence shows that patient decision aids (PDAs) and shared decision making can bridge the gap between the theory and practice of informed consent. These evidence-based educational tools empower patients to make decisions with significantly more knowledge and less decisional conflict than clinician-patient discussions alone.
Unfortunately, despite robust evidence of effectiveness, few clinicians in the United States use PDAs when they deliver healthcare services. This must change. It is time to move PDAs from research to practice and from the lab to the clinic.
This Article describes a key tool that can nudge clinicians to use PDAs with their patients: the monetary incentive of a professional liability insurance premium reduction. Medical malpractice insurance companies should offer premium discounts to clinicians who use PDAs. This incentive will spur PDA use, and PDA use will improve patient safety, which benefits both patients and malpractice insurers
