89,513 research outputs found
Politico-economic determinants of tort reforms in medical malpractice
No full textThe U.S. tort system has experienced various reforms during the last three decades. While there is a broad literature on the consequences of these reforms, very little is known about their determinants. In this study, we investigate the politico-economic forces that were driving the reform process across U.S. states. We focus on five types of medical malpractice tort reform and apply semi-parametric proportional hazards models to assess the factors that are related to reform enactments. We find, first, that a higher fraction of Republicans in a state legislature as well as a Republican governor are the major drivers of medical malpractice tort reforms. Second, we find that a higher fraction of women in a state legislature is associated with reforms being deferred. This finding is corroborated by micro-evidence on female legislators’ voting behavior on medical malpractice tort reforms, and it is consistent with the notion that women are disproportionally aggrieved by such reforms
Losers and Losers: Some Demographics of Medical Malpractice Tort Reforms
No full textOur research examines individual differences in the effects of medical malpractice tort reforms on pre-trial settlement speed and settlement amounts by age and most likely settlement size. Findings of note include that, unlike previously assumed, both absolute and percentage losses from tort reform are small for infants in an asset value sense and that the prime-aged working population is the group most negatively affected by tort reform. Maximum entropy quantile regressions highlight the robustness of our conclusions and reveal that the settlement losses most informative for policy evaluation differ greatly from mean regression estimates.medical malpractice, tort reform, Texas closed claims, damage caps, quantile regression, maximum entropy
Liability in tort for the acts of third parties: a search for coherence
No full textThe circumstances in English tort law in which one person may be held non-vicariously liable for the acts of another have been quietly expanding in recent years, to the point where third party liability can now be said to constitute a distinct category of tortuous liability. As an obviously exceptional form of liability, it is subject to special restrictions designed to strictly limit the specific instances in which it will be recognised. Unfortunately, however, the exact substance and scope of these restrictions are far from clear, for there has been a systematic failure on the part of the courts in deciding third-party liability actions to articulate with any precision the grounds upon which their findings have been based. As a result, the law on third party tort liability has developed on an ad hoc basis and has become confused and incoherent. The specific purpose of this thesis is thus to seek out the foundational principles governing the existing categories of liability in tort for the acts of third parties, with a view to identifying a coherent basis upon which such liability can develop in the future
Tort law
No full textThis book has undergone substantial revision with well over half the text being completely rewritten in the light of developments since the last edition. The authors take a fresh look at the tort of Negligence, incorporating not just the landmark cases of Murphy v. Brentwood District Council and Caparo Industries plc v. Dickman in the House of Lords, but also important recent decisions of the High Court of Australia and the Supreme Court of Canada in the areas of economic loss and causation and a wide range of academic commentary. There is a new section on Governmental Liability and the section on Products Liability has been restructured to take into account the increasing importance of this area in which negligence, contract and statute interact. The section on Nuisance reflects the growing influence of environmental law and policy and the section on Protection of Privacy and Reputation takes full account of the contemporary debate on privacy and the role of the mediaAs before, the principal aim is to provide a modern and accessible presentation of the law for students taking degrees at universities and colleges. At the same time the book does not seek to conceal the dynamic conceptual nature of tort law, nor its links to social and commercial policy. The increasingly important relationships between the concepts underlying tortious liability and those underlying liability in contract and restitution are brought out and historical and economic perspectives are, wherever possible, integrated into the analysis of doctrine. The impact of insurance, the inter-relationship of damages awards with the tax and social security systems and the emergence of structured settlements are accordingly given prominant coverage. More generally there is an acknowledgement that legislative policy plays a central part in shaping the development of the modern la
Efficient Third Party Liability of Auditors in Tort Law and in Contract Law
No full textA wrong audit can cause damages to shareholders. This happens especially if outside shareholders base their investment decision on the audit and buy overpriced company shares. If such damages are recoverable under an implied contract between auditor and shareholder, the auditor is usually liable for simple negligence. In that case he has negligently violated a contractual duty to the shareholder, even though the explicit contract was between him and the corporation. If however these damages are only recoverable under tort law, simple negligence will not lead to compensation because they are pure economic losses and because most legal orders restrict or exclude liability for pure economic loss. For such damages, most legal orders grant compensation under tort law only if it is proven that the tortfeasor was willful, disloyal, reckless or grossly negligent . In most cases this excludes compensation. The economic literature on civil liability for economic loss has underlined the rationale for such restrictions. However, this literature remains silent with respect to the borderline between contract law and tort law. There is a general agreement that pure economic loss has to be compensated under contract law as the cost of this protection is internalized in the contract. If a wrong audit and a wrong and published balance sheet causes a pure financial loss to a shareholder, should this be regarded as a violation of contractual duties between the auditor and the shareholder, or just as a tort? Obviously, in most cases this question is decisive for whether the plaintiff receives compensation or not. We argue that this question should be answered in the affirmative, if the victim has an ex-ante willingness to pay for the costs associated with performing such a duty. In this article we argue that a wrong audit that causes damages to shareholders should generally be strictly regarded as a tort case. We also argue that a rule of gross negligence or of gross violation of professional standards in tort law can avoid the problems of underdeterrence as well as of overdeterrence in the compensation of pure financial loss in tort. However, we also argue that a wrong audit should lead to contractual liability, if it was made to prepare the sale of a company or parts of it from inside investors to outside investors or to prepare an initial public offering. Under this condition we argue that the economic rationale for restricting compensation for pure financial loss is not given. The paper first analyses the social value of an audit. Then several liability rules with precise and vague levels of professional care are treated with respect to their incentive effects. This leads to the proposal of a rule of gross negligence in tort law. In the last part we analyse the special conditions, under which the legal order should assume a contract with protective consequences for buyers of company shares, which leads to liability for simple negligence. The legal form of a contract with protective consequences for third parties (Vertrag mit Schutzwirkung für Dritte) is borrowed from German dogmatic scholarship, but may be interesting in this respect for an international audience as well. This article draws from the literature on pure financial losses and from the literature on precise and vague negligence norms as well as from the literature on the tort contract boundary . The article does however not discuss the problem of joint and several liability and the strategic problems involved, which have been broadly discussed in the literature. The victim of a wrong audit might have a claim against the inside investor, the management, the firm and/or the auditor. This causes strategic interactions, which influence the level of care of all actors as well as the price of auditing . These problems have been extensively dealt with in the literature and are left out here completely. The focus is exclusively on the question, under which conditions the victim should be highly protected by contract law or get a lower level of protection under tort law.
THE CORE OF PURE ECONOMIC LOSS
No full textShould loss of earnings be compensated? The established law and economics wisdom considers pure economic loss as a transfer of wealth from the victim to a third party, whose earnings increase as a consequence of the accident. Such transfers do not amount to a social loss and, hence, should not be compensated. We revisit these arguments and show that the social loss should be calculated by taking into account that: (a) pure economic loss often involves impairment costs resulting from the fact that valuable resources cannot be temporarily used; and (b) the third-party earnings come at the cost of increased capacity. This increased capacity mitigates the expected harm and, hence, is a form of precaution. By taking into account these factors, we show that most pure economic loss cases do result in a socially relevant loss. In addition, we argue that the absence of a social loss is a necessary, but not sufficient, condition for the denial of compensation. The victim (or a third party) may have actually paid for protection against purely private losses. Thus, compensation should be awarded irrespective of whether national law treats the case under tort or contract (where compensation is undisputed). Finally, we offer considerations on the optimal design of liability rules.economic loss, financial loss, tort, damage, compensation,
Essential Cases on Misconduct. Digest of European tort law.
No full textIncludes bibliographical references and index."The various national European legal systems offer a broad range of responses to the question of what can be regarded as wrongful behaviour or fault. The present work systematically examines these two important prerequisites for tortious liability under the combined heading of 'misconduct'. Unlike current textbooks, national casebooks and monographs, it builds on the experiences gathered in the national legal systems over the past decades and thereby fills a major gap which still exists today. It thus does what the previous volumes in the 'Digest of European Tort Law' series did for other key elements of tort law, namely natural causation and damage. Once again, the publication contains a selection of the most important cases from 28 states across Europe as well as cases handed down by European Union courts; it also highlights cases from earlier periods of legal history. For each case, the facts and the relevant court decision are presented and these are then accompanied by an analytical commentary. In addition, the editors provide comparative analyses of the cases reported and a special report is dedicated to how key decisions would be resolved under model European rules on tort law. The editors believe that the material gathered here may provide guidance for an organic convergence of the national legal systems in Europe. It constitutes the basis of an acquis commun that is infinitely richer (though also much more complex) than the rather bland and abstract concepts contained in national codifications, European legislation and modern model rules"--Intro; Preface; Overview; Table of Contents; Abbreviations; Questionnaire Structure; A. Introduction; 1. General Overview; B. The Nature of the Misconduct Required; 2. Forms of Misconduct; C. The Required Standard of Conduct; 3. Criteria for Assessment; 4. The Relevance of Statutory Norms; 5. The Relevance of Non-Statutory Norms; D. An Objective or Subjective Standard?; 6. Special Skill or Expertise; 7. Inexperience or Lack of Skill; 8. Age; 9. Physical Disability; 10. Mental Disability; 11. Incapacity due to Drugs or Alcohol; 12. Incapacity due to Other Transient Factors.E. Degrees of Misconduct13. Degrees of Misconduct; F. Grounds of Justification; 14. Self-Defence and Other Grounds of Justification; 15. Self-Defence against Non-Misconduct; G. Other Issues; 16. Additional Questions; Contributors; Publications; Index.1 online resource (1316 pages)
The Effect of Joint and Several Liability on the Bankruptcy Rate of Defendants: Evidence from Asbestos Ligation
No full textThe Effect of Joint and Several Liability on the Bankruptcy Rate of Defendants: Evidence from Asbestos Litigation - Under the doctrine of joint and several liability, if two defendants jointly share a liability and the first becomes insolvent, his unpaid liabilities may be reallocated to the second, solvent defendant. While the second defendant's assets may be sufficient to cover his own share of the liability, they may be insufficient to also cover the first defendant's unpaid liability. As a result the first defendant's insolvency may trigger the second defendant's insolvency (White 2002, Cupp 2003). The purpose of this paper is to quantify the pressure that one defendant's bankruptcy places on the solvency of co-defendants in the context of mass torts subject to joint and several liability. The specific tort we examine is asbestos poisoning. We choose this example because of the large number of companies -- over 61 since 1982 (Stiglitz et al. 2003) -- that have gone bankrupt due to asbestos litigation and the even larger number of companies -- perhaps as many as 8,000 (Brickman 2004) -- that have been named as defendants in asbestos suits. Using 10-K data from a number of large asbestos defendants and a data set of all judgments in asbestos trials, we estimate that the mean per-claim payments by major defendants grew an additional 5 to 10 percent annually or 56 to 157 percent altogether between 1990 and 2002 due to the bankruptcy of jointly liable defendants during this period. To put it another way, if no companies had gone bankrupt between 1990 and 2002, the asbestos liabilities of solvent defendants might have been less than two-fifths their present size.This result is also a contribution to the literature on bankruptcy and on mass torts. First, numerous scholars have suggested tort claimants ought to be given superpriority in bankruptcy to reduce their exposure to the risk of a defendant's insolvency. We demonstrate that, with joint and several liabilities, this risk is actually reallocated to jointly liable but solvent defendants. Tort superpriority would reallocate some of this risk to other creditors, which seems neither fair nor efficient. Second, in the debate over how to compensate victims of mass tort -- case-by-case litigation, class actions, valuation in bankruptcy, or legislative trust -- one criticism of piecemeal litigation has been that it leaves the plaintiff bearing the risk of defendant insolvency. Our findings provide evidence otherwise in the case of joint and several liabilities
Accidental Death and the Rule of Joint and Several Liability
No full textReforms to the Joint and Several Liability rule (JSL) are one of the most common tort reforms and have been implemented by most US states. JSL allows plaintiffs to claim full recovery from one of the defendants, even if that defendant is only partially responsible for the tort. We develop a theoretical model that shows that the efficiency of the JSL rule depends critically on both whether the care taken by potential tortfeasors is observed, and on how the actions of the potential tortfeasors interact to cause the harm. We then provide evidence that reforms of the JSL rule have been accompanied by reductions in the accidental death rate in the U. S. This result is consistent with the hypothesis that the reform of JSL causes potential tortfeasors to take more care.
The Effect of Electoral Institutions on Tort Awards
No full textPoliticians are not neutral maximizers of the public good, they respond to incentives just like other individuals. We apply the same reasoning to those politicians in robes called judges. We argue that elected judges, particularly partisan elected judges, have an incentive to redistribute wealth from out-of-state defendants (non-voters) to instate plaintiffs (voters). The partisan electoral hypothesis is tested first using data on 75,000 tort awards from across the states. We control for differences in injuries, state incomes, poverty levels, selection effects and other factors that may cause awards to differ across the states. One difference which appears difficult to control for is that each state has its own body of tort law. We take advantage of a peculiar aspect of American Federalism to make this distinction. In cases involving citizens of different states, aptly called diversity of citizenship cases, Federal judges apply state law to decide disputes. Diversity of citizenship cases allow us to test whether differences in awards are caused by differences in electoral systems or differences in state law. The evidence from the cross-state regressions and from the diversity of citizenship cases, strongly supports the partisan election hypothesis. In cases involving out-of-state defendants and in-state plaintiffs the average award (conditional on winning) is 42% higher in partisan than in non-partisan states; approximately 2/3 rds of the larger award is due to a bias against out-of-state defendants and the remainder due to generally higher awards against businesses in partisan states.
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