1,720,976 research outputs found
Penalizing Punitive Damages: Why the Supreme Court Needs a Lesson in Law and Economics
Full text linkThe recent landmark Supreme Court decision addressing punitive damages in the infamous Exxon Valdez oil spill case has brought the issue of punitive awards back into the legal limelight. Modern Supreme Court jurisprudence, most notably BMW of North America, Inc. [517 U.S. 559 (1996)], State Farm [538 U.S. 408 (2003)], Philip Morris [549 U.S. 346 (2007)], and now Exxon Shipping Co. [128 S.Ct. 2605 (2008)] in 2008, has concluded that such judgments are justified to punish morally reprehensible behavior and to send a message to evildoers. The Court, however, has increasingly emphasized that the U.S. Constitution\u27s Due Process Clause presumptively limits punitive awards, drawing an arbitrary line in the sand of no more than ten times actual damages.
This Article critically examines modern punitive damages jurisprudence using a law and economics lens. From that standpoint, there is no justifiable basis for tort law\u27s requirement of morally reprehensible or intentional conduct before punitive damages may be awarded. Indeed, punitives should be imposed—must for deterrence purposes—even in the absence of egregious behavior, when a defendant has escaped liability previously, either intentionally or serendipitously.
In this manner, the punitive award makes up for the occasions in which the defendant avoided liability and failed to compensate victims for harm caused. On the other hand, sound economic analysis dictates that imposing enormous punitive damages simply because a tortfeasor\u27s behavior was morally offensive can inadvertently lead to overdeterrence, price inflation beyond optimum, quantity of goods purchased below optimum, and a significant reduction in overall social welfare. In sum, the Supreme Court must drastically revise its approach to punitive damages jurisprudence: such awards should not be arbitrarily based on a gut reaction to how reprehensibly we feel a defendant acted. Rather, punitive damages should be granted only where tortfeasors have the potential to escape liability for their actions, and they should be awarded in that case even if the defendant in no way meets the modern requirement of egregious behavior. Moreover, the Supreme Court\u27s arbitrary due process litmus test of ten times compensatory damages as a ceiling on punitive damages makes zero sense from an economic analysis point of view, and needs to be summarily abolished
Vanishing Vaccinations: Why Are So Many Americans Opting Out of Vaccinating Their Children?
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Sports Medicine Conflicts: Team Physicians vs. Athlete-Patients
Full text linkTeam physicians for professional sports franchises face a conflict of interest created by the competing loyalties they owe to the team that employs them and to the athlete-patient they must treat. Marketing agreements under which physicians pay significant sums of money to be designated as the team\u27s official healthcare provider exacerbate this conflict. These marketing arrangements call into question the independent judgment of team physicians and cause players to question the quality of care they receive.
This paper explores several solutions to the growing conflicts between athletes and team doctors with the goal of enhancing players\u27 trust in the medical care they receive. First, to remove the dual loyalty problem faced by team physicians, professional sports leagues or players\u27 unions should hire medical providers directly—as opposed to having individual teams employ and provide them. If this fundamental employment change proves impossible, physician groups should enter into explicit agreements with sports franchises that assert the groups\u27 independence, and professional sports leagues should mandate that physicians disclose all potential conflicts of interest to the players they treat.
In addition, sports leagues could ban physicians from advertising their affiliation with teams to alleviate the problem of doctors engaging in bidding wars to service athletes at below-market rates in order to gain a PR edge on their competition. Finally, states might consider exceptions to the exclusive remedy provisions of workers\u27 compensation laws to ensure that professional athletes have legal recourse when they suffer the deleterious effects of these conflicts. This conflict of interest between team physicians and the athlete-patients they treat must be remedied by aggressively implementing policies and procedures that change the current relationship between healthcare providers, teams, and their players.
Part I of this Paper examines the various duties that a team physician owes her athlete-patient. Part II details the nature of the relationship between teams, physicians, and players, and Part III explains how these relationships cause conflicts of interest to arise. Finally, Part IV outlines policy solutions that would remedy the diverging interests that team doctors face.
Contributed to a symposium on Sports Medicine: Doping, Disability Health Quality
Vanishing Vaccinations: Why Are So Many Americans Opting Out of Vaccinating Their Children?
Full text linkVaccinations against life-threatening diseases are one of the greatest public health achievements in history. Literally millions of premature deaths have been prevented, and countless more children have been saved from disfiguring illness. While vaccinations carry unavoidable risks, the medical, social and economic benefits they confer have led all fifty states to enact compulsory childhood vaccination laws to stop the spread of preventable diseases. Today, however, vaccines are becoming a victim of their success-many individuals have never witnessed the debilitating diseases that vaccines protect against, allowing complacency toward immunization requirements to build. Antivaccination sentiment is growing fast in the United States, in large part due to the controversial and hotly disputed link between immunizations and autism. The internet worsens fears regarding vaccination safety, as at least a dozen websites publish alarming information about the risks of vaccines. Increasing numbers of parents are refusing immunizations for their children and seeking legally sanctioned exemptions instead, apparently fearing vaccines more than the underlying diseases that they protect against. A variety of factors are at play: religious and philosophical beliefs, freedom and individualism, misinformation about risk, and overperception of risk.
State legislatures and health departments now face a difficult challenge: respecting individual rights and freedoms while also safeguarding the public welfare. Nearly all states allow vaccination exemptions for religious reasons and a growing number provide philosophical opt-outs as well. However, in all but a handful of jurisdictions, neither objection is seriously documented or verified. Often, the law requires a parent to do no more than simply check a box indicating she does not wish her child to receive immunizations. The problem is exacerbated by financial incentives schools have to encourage students to opt out of vaccinations. The rise in parents opting out has caused the AMA grave concern, with many experts decrying the rise of so-called exemptions of convenience. In some areas, nearly one out of five children have not received their recommended vaccines. The consequences are serious not only for those unprotected children, but for the rest of society as well. Herd immunity is threatened as more and more parents free ride off of the community\u27s dwindling immunity, and outbreaks of diseases thought to have been conquered have already occurred. Lawsuits against vaccine manufacturers threaten them with bankruptcy, costs are being externalized onto the healthcare and legal systems, and vulnerable populations are suffering harm or even death. In the interests of social welfare, state legislatures and health departments should consider methods to ensure that the exemption process is carefully tailored to prevent check-thebox opt-outs of convenience, while still allowing exemptions for those with earnest and informed convictions or medical reasons
Cash for Kidneys? Utilizing Incentives to End America\u27s Organ Shortage
Full text linkThis article addresses the growing organ shortage in America, analyzes current donation and procurement law, and explores both monetary and nonmonetary incentives aimed at eliminating the worsening crisis.
Part I details the law governing human organ donation. Under both the Uniform Anatomical Gift Act (“UAGA”) and the National Organ Transplant Act (“NOTA”), no donor of a human organ may receive “valuable consideration” for providing it. Congress’ intention was simply that the organ recipient be given the “gift” of life—not one which she had to purchase on the market. In reality, the consequences of the Act bear little resemblance to its initial intent. Organ scarcity has been the unintended result, leading to a thriving global black market in human organ sales.
Part II explores the traditional arguments that scholars and legislators have raised against legalizing the sale of human organs. Notions of morality, distributive justice, imperfect information, and negative externalities are routinely offered to justify the current law prohibiting sales.
Part III explores some of the limitations of the above rationales, offering reasons why properly regulated organ sales may not be as far-fetched or offensive as some initially think. I will offer suggestions for responsible regulation of sales to guard against the abuses and exploitation rampant on the black market, and to ensure that a seller’s decision is truly voluntary, fully informed, competent, and enduring.
Part IV proposes and analyzes incentive-based solutions to cure the organ crisis in America. Monetary incentives short of outright sale by living donors would go far towards boosting organ supply while reducing the concerns raised by open markets in organs. Some scholars have suggested “futures markets,” allowing individuals to receive remuneration today in exchange for agreeing to have their organs donated at death.
A few states have considered tax deductions for donors, and some even offer nominal amounts of money to individuals who opt in to donation when renewing their driver’s licenses. By modifying and combining some of these ideas, I will propose ways that we could dramatically raise organ donor participation rates while staying within the confines of NOTA and UAGA
Going Beyond Counting First Authors in Author Co-citation Analysis
Full text linkThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
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