Pub Date : 2004-07-01DOI: 10.1111/J.1468-246X.2004.00197.X
Katherine Satchwell
The statutory scheme of road accident compensation in South Africa encapsulates both the common law of tort or delict and the residue of liability insurance principles. The absence of meaningful interaction between the road accident compensation scheme and the broader social security system raises significant challenges. There are dissonant responses to the targeted misfortune, provision of benefits, financing, choice of remedies and socioeconomic-political priorities selected by the South African government. It is argued that the current scheme should be identified as falling squarely within a state-funded and regulated scheme of comprehensive social protection.
{"title":"Tort Claims for Road Accident Compensation and Social Security in South Africa","authors":"Katherine Satchwell","doi":"10.1111/J.1468-246X.2004.00197.X","DOIUrl":"https://doi.org/10.1111/J.1468-246X.2004.00197.X","url":null,"abstract":"The statutory scheme of road accident compensation in South Africa encapsulates both the common law of tort or delict and the residue of liability insurance principles. The absence of meaningful interaction between the road accident compensation scheme and the broader social security system raises significant challenges. There are dissonant responses to the targeted misfortune, provision of benefits, financing, choice of remedies and socioeconomic-political priorities selected by the South African government. It is argued that the current scheme should be identified as falling squarely within a state-funded and regulated scheme of comprehensive social protection.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"581 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126895965","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper uses a unique US dataset to analyze the demand for Directors’ and Officers’ liability insurance. This insurance protects managers most ly from sha reholder litigation. Corporate insurance presents a much different environment than individual insurance and calls for in-depth empirical investigation of the reasons why corporation buy insurance at all. Risk aversion by itself is not sufficient to explain the behavior of corporations. Mayers and Smith (1982), MacMinn and Garven (2000), among others, propose that corporate insurance plays a role in mitigating agency problems within the corporation, bankruptcy risk as well as provides real-services efficiencies, among others. Applying dynamic panel data models, these theories are the basis for the empirical tests in this paper. Boyer’s (2003) hypothesis that D&O insurance is entirely habit driven is rejected, while some role for persistence is still confirmed. I confirm the real-services efficiencies hypothesis and the role of insurance in mitigating bankruptcy risk. Firms with higher returns appear to demand less insurance. Although alternative monitoring mechanisms over management and corporate governance do not appear to play a large role, I find some support that they are complements rather than substitutes. I fail to confirm the role of insurance in mitigating under-investment problems in growth companies. A size adjustment to the limits as a dependent variable is proposed for the first time and it is found to have implications for the results. The paper confirms some, but not all, well-established theories about the decision-making on corporate insurance and the significance of risk management using US panel data for the first time.
{"title":"The Demand for Directors' and Officers' Liability Insurance by Us Public Companies","authors":"George Kalchev","doi":"10.2139/ssrn.565183","DOIUrl":"https://doi.org/10.2139/ssrn.565183","url":null,"abstract":"This paper uses a unique US dataset to analyze the demand for Directors’ and Officers’ liability insurance. This insurance protects managers most ly from sha reholder litigation. Corporate insurance presents a much different environment than individual insurance and calls for in-depth empirical investigation of the reasons why corporation buy insurance at all. Risk aversion by itself is not sufficient to explain the behavior of corporations. Mayers and Smith (1982), MacMinn and Garven (2000), among others, propose that corporate insurance plays a role in mitigating agency problems within the corporation, bankruptcy risk as well as provides real-services efficiencies, among others. Applying dynamic panel data models, these theories are the basis for the empirical tests in this paper. Boyer’s (2003) hypothesis that D&O insurance is entirely habit driven is rejected, while some role for persistence is still confirmed. I confirm the real-services efficiencies hypothesis and the role of insurance in mitigating bankruptcy risk. Firms with higher returns appear to demand less insurance. Although alternative monitoring mechanisms over management and corporate governance do not appear to play a large role, I find some support that they are complements rather than substitutes. I fail to confirm the role of insurance in mitigating under-investment problems in growth companies. A size adjustment to the limits as a dependent variable is proposed for the first time and it is found to have implications for the results. The paper confirms some, but not all, well-established theories about the decision-making on corporate insurance and the significance of risk management using US panel data for the first time.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126799535","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In December 2003, the National Highway Traffic Safety Administration (NHTSA) issued an Advanced Notice of Proposed Rulemaking that sought comments on suggested changes to the corporate average fuel economy (CAFE) program. Among other regulatory concepts, NHTSA suggested that future CAFE standards should be based on the curb weight of trucks up to 5,000 pounds, and should encourage reductions in the curb weights of trucks over 5,000 pounds, by holding truck models in the currently regulated fleet over 5,000 pounds to standards that would not be based on curb weight. This paper analyzes the changes that manufacturers could make to bring all light trucks in the currently regulated fleet with a curb weight of 5,000 pounds or more into compliance with a standard of 18 miles per gallon (mpg), intended to encourage the downweighting of those trucks. The analysis reaches two important empirical conclusions: (1) the attributes of model year (MY) 2002 light trucks over 5,000 pounds that would not meet an 18 mpg standard are significantly different from the attributes of light trucks in the same weight class that would meet an 18 mpg standard; (2) consumers value highly the attributes that would be sacrificed if they were forced to choose from those models that satisfy the standard. We estimate the reduction in consumer welfare that would be associated with two possible reactions of automobiles manufacturers to the proposed change in the CAFE program. If manufacturers react by eliminating light trucks in the currently regulated fleet with weights over 5,000 pounds that do not comply with the new standard ("Scenario 1"), forcing consumers to choose from only those vehicles of the same weight that achieve the standard today, the associated reduction in consumer welfare would likely be between $432 and $648 million per year. Alternatively, if manufacturers react by reducing the weight of the vehicles in that fleet to comply with the new standard ("Scenario 2A") for those models that do not require a significant change in the weight, the associated reduction in consumer welfare would be between $636 and $748 million per year. If instead manufacturers react by reducing the weight of the vehicles in that fleet to comply with the new standard ("Scenario 2B") regardless of the required change in the weight of the light truck, the associated reduction in consumer welfare would be $1.516 billion per year. Setting aside any methodological problems with NHTSA's safety model, if each of the 36 models that failed the new standard were to comply with the standard solely through weight reduction ("Scenario 2B"), then roughly 6.0 lives per year would be saved according to a preliminary safety analysis published by NHTSA in September 2003. Assuming that society values a life saved between $3 and $4 million, the present discounted value of expected benefits under Scenario 2B is between $179 and $238 million in 2002. If only those models that did not require a significant redu
{"title":"An Economic Assessment of the Weight-Based Cafe Standard Proposed by the National Highway Traffic Safety Administration","authors":"R. Crandall, Allan T. Ingraham, Hal J. Singer","doi":"10.2139/ssrn.540502","DOIUrl":"https://doi.org/10.2139/ssrn.540502","url":null,"abstract":"In December 2003, the National Highway Traffic Safety Administration (NHTSA) issued an Advanced Notice of Proposed Rulemaking that sought comments on suggested changes to the corporate average fuel economy (CAFE) program. Among other regulatory concepts, NHTSA suggested that future CAFE standards should be based on the curb weight of trucks up to 5,000 pounds, and should encourage reductions in the curb weights of trucks over 5,000 pounds, by holding truck models in the currently regulated fleet over 5,000 pounds to standards that would not be based on curb weight. This paper analyzes the changes that manufacturers could make to bring all light trucks in the currently regulated fleet with a curb weight of 5,000 pounds or more into compliance with a standard of 18 miles per gallon (mpg), intended to encourage the downweighting of those trucks. The analysis reaches two important empirical conclusions: (1) the attributes of model year (MY) 2002 light trucks over 5,000 pounds that would not meet an 18 mpg standard are significantly different from the attributes of light trucks in the same weight class that would meet an 18 mpg standard; (2) consumers value highly the attributes that would be sacrificed if they were forced to choose from those models that satisfy the standard. We estimate the reduction in consumer welfare that would be associated with two possible reactions of automobiles manufacturers to the proposed change in the CAFE program. If manufacturers react by eliminating light trucks in the currently regulated fleet with weights over 5,000 pounds that do not comply with the new standard (\"Scenario 1\"), forcing consumers to choose from only those vehicles of the same weight that achieve the standard today, the associated reduction in consumer welfare would likely be between $432 and $648 million per year. Alternatively, if manufacturers react by reducing the weight of the vehicles in that fleet to comply with the new standard (\"Scenario 2A\") for those models that do not require a significant change in the weight, the associated reduction in consumer welfare would be between $636 and $748 million per year. If instead manufacturers react by reducing the weight of the vehicles in that fleet to comply with the new standard (\"Scenario 2B\") regardless of the required change in the weight of the light truck, the associated reduction in consumer welfare would be $1.516 billion per year. Setting aside any methodological problems with NHTSA's safety model, if each of the 36 models that failed the new standard were to comply with the standard solely through weight reduction (\"Scenario 2B\"), then roughly 6.0 lives per year would be saved according to a preliminary safety analysis published by NHTSA in September 2003. Assuming that society values a life saved between $3 and $4 million, the present discounted value of expected benefits under Scenario 2B is between $179 and $238 million in 2002. If only those models that did not require a significant redu","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114148902","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
F. André, Francisco Velasco-Morente, Luis C. Gonzalez
Optimal capacity and location of a sequence of landfills are studied, and the interactions between both decisions are pointed out. The decision capacity has some spatial implications, because it affects the feasible region for the rest of landfills, and some temporal implications, because the capacity determines the lifetime of the landfill and, hence, the instant of time where next landfills will need to be constructed. Some general mathematical properties of the solution are provided and interpreted from an economic point of view. The resulting problem turns out to be no convex and, therefore, it can not be solved by conventional optimization techniques. Some global optimization methods are used to solve the problem in a particular case, in order to illustrate the behavior of the solution depending on parameter values.
{"title":"Intertemporal and Spacial Location of Disposal Facilities","authors":"F. André, Francisco Velasco-Morente, Luis C. Gonzalez","doi":"10.2139/ssrn.557801","DOIUrl":"https://doi.org/10.2139/ssrn.557801","url":null,"abstract":"Optimal capacity and location of a sequence of landfills are studied, and the interactions between both decisions are pointed out. The decision capacity has some spatial implications, because it affects the feasible region for the rest of landfills, and some temporal implications, because the capacity determines the lifetime of the landfill and, hence, the instant of time where next landfills will need to be constructed. Some general mathematical properties of the solution are provided and interpreted from an economic point of view. The resulting problem turns out to be no convex and, therefore, it can not be solved by conventional optimization techniques. Some global optimization methods are used to solve the problem in a particular case, in order to illustrate the behavior of the solution depending on parameter values.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121140587","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Class action law enforcement is a resource-intensive undertaking, requiring investment of both intellectual capital and financial wherewithal. Building on insights developed in the economic theory of investment under uncertainty, the key theoretical proposition is that class action law enforcement comprises a multi-stage sequence of investment opportunities under conditions of multi-dimensional uncertainty. The properties of investment in class actions include (i) investment expenditures; (ii) future rewards on investment; (iii) multi-dimensional investment uncertainty; (iv) the irreversibility of investment expenditures; and (v) the sequential, multi-stage property of investment opportunities and investment decisions. The court appointment of class counsel is modeled as a judicially-granted monopoly over investment in class action law enforcement. At any given stage of the sequence (but for the last one), plaintiffs' attorneys and, later, court-appointed class counsel are faced with a financial call option, namely, an opportunity to invest and buy, with some probability, the opportunity to invest in the stage that follows in the sequence. Plaintiffs' attorneys' and, subsequently, the court-appointed class counsel's incentives to invest and investment decisions throughout the sequence are overwhelmingly the most important determinant of the magnitude of liability exposure. These theoretical propositions provide the most conceptually-inclusive model of the incentive structure of class action law enforcement. This analytic model is conceptually-inclusive because the myriad decisions made by plaintiffs' attorneys and, subsequently, by class counsel in the course of class action law enforcement are perceived as sequential investment decisions under conditions of uncertainty. Thus, virtually any aspect relating to the conduct and performance of plaintiffs' attorneys becomes amenable to analysis as a sequential investment problem. Normative implications concerning the design of investment-oriented, welfare-enhancing regulation of class action law enforcement across different areas of law where class actions are used as an enforcement mechanism are derived.
{"title":"The Class Action as a Financial Call Option","authors":"Guy Halfteck","doi":"10.2139/ssrn.528043","DOIUrl":"https://doi.org/10.2139/ssrn.528043","url":null,"abstract":"Class action law enforcement is a resource-intensive undertaking, requiring investment of both intellectual capital and financial wherewithal. Building on insights developed in the economic theory of investment under uncertainty, the key theoretical proposition is that class action law enforcement comprises a multi-stage sequence of investment opportunities under conditions of multi-dimensional uncertainty. The properties of investment in class actions include (i) investment expenditures; (ii) future rewards on investment; (iii) multi-dimensional investment uncertainty; (iv) the irreversibility of investment expenditures; and (v) the sequential, multi-stage property of investment opportunities and investment decisions. The court appointment of class counsel is modeled as a judicially-granted monopoly over investment in class action law enforcement. At any given stage of the sequence (but for the last one), plaintiffs' attorneys and, later, court-appointed class counsel are faced with a financial call option, namely, an opportunity to invest and buy, with some probability, the opportunity to invest in the stage that follows in the sequence. Plaintiffs' attorneys' and, subsequently, the court-appointed class counsel's incentives to invest and investment decisions throughout the sequence are overwhelmingly the most important determinant of the magnitude of liability exposure. These theoretical propositions provide the most conceptually-inclusive model of the incentive structure of class action law enforcement. This analytic model is conceptually-inclusive because the myriad decisions made by plaintiffs' attorneys and, subsequently, by class counsel in the course of class action law enforcement are perceived as sequential investment decisions under conditions of uncertainty. Thus, virtually any aspect relating to the conduct and performance of plaintiffs' attorneys becomes amenable to analysis as a sequential investment problem. Normative implications concerning the design of investment-oriented, welfare-enhancing regulation of class action law enforcement across different areas of law where class actions are used as an enforcement mechanism are derived.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125563546","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
One of the most perplexing consequences of the Employee Retirement Income Security Act's (ERISA) preemption provisions is the differential regulatory treatment afforded to employer-sponsored health care benefits provided directly to employees by the employer's "self-insured" plan and to benefits provided by a third party that sells an insurance policy to the employer. Under ERISA's savings clause, states may regulate insurance contracts, thus allowing regulators to guarantee "insured" employees a menu of state-mandated health-insurance benefits. But under ERISA's deemer clause, self-insured plans are immune to such requirements. Since ERISA's passage three decades ago, there has been an explosion in the number of employers choosing to self-insure their health benefits plans and then purchase "stop-loss" insurance for the plan in order to avoid both state mandates and insurance risk. Critics cry foul at the use of this regulation-avoidance tactic. This Article defends employers' exploitation of the "deemer clause loophole" on the grounds that it is consistent with ERISA's clear language, structure, and delicate balance of underlying goals. But it argues that ERISA contains a complementary "savings clause loophole" that state regulators can exploit by regulating stop-loss insurance companies, thus using a self-help remedy to close the deemer clause loophole substantially. One good loophole deserves another.
{"title":"The Battle Over Self-Insured Health Plans, or 'One Good Loophole Deserves Another'","authors":"R. Korobkin","doi":"10.2139/SSRN.503482","DOIUrl":"https://doi.org/10.2139/SSRN.503482","url":null,"abstract":"One of the most perplexing consequences of the Employee Retirement Income Security Act's (ERISA) preemption provisions is the differential regulatory treatment afforded to employer-sponsored health care benefits provided directly to employees by the employer's \"self-insured\" plan and to benefits provided by a third party that sells an insurance policy to the employer. Under ERISA's savings clause, states may regulate insurance contracts, thus allowing regulators to guarantee \"insured\" employees a menu of state-mandated health-insurance benefits. But under ERISA's deemer clause, self-insured plans are immune to such requirements. Since ERISA's passage three decades ago, there has been an explosion in the number of employers choosing to self-insure their health benefits plans and then purchase \"stop-loss\" insurance for the plan in order to avoid both state mandates and insurance risk. Critics cry foul at the use of this regulation-avoidance tactic. This Article defends employers' exploitation of the \"deemer clause loophole\" on the grounds that it is consistent with ERISA's clear language, structure, and delicate balance of underlying goals. But it argues that ERISA contains a complementary \"savings clause loophole\" that state regulators can exploit by regulating stop-loss insurance companies, thus using a self-help remedy to close the deemer clause loophole substantially. One good loophole deserves another.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127519939","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This pair of papers involves a reprinting of "Of Harms and Benefits: Torts, Restitution, and Intellectual Property," 21 J. LEGAL STUDIES 449 (1992), along with an introduction to that article for students, entitled "Copyright as Tort's Mirror Image". Both involve comparisons between statutory intellectual property law and common law doctrines. "Copyright as Tort's Mirror" uses personal injury law to introduce students to copyright, making a link between the doctrines through the notion of "externalities". Just as tort law discourages wastefully harmful behavior by making perpetrators bear some of the costs inflicted, copyright law encourages beneficial behavior by enabling authors to capture some of the benefits generated. For persons trained in common law doctrines, therefore, it may be useful to approach copyright law initially as if copyright were tort law upside-down. While a full economic account of copyright needs to go far beyond the tort analogy (to consider factors such as industry structures, the "public goods" character of authorial work, and so on), the analogy to torts has many applications. Notably, it can help students understand some of the reasons why the law puts limitations on copyright. For example, consider the motto, "It takes two to tort", and its lesson that both plaintiffs and defendant may need incentives. In tort, the defense of comparative negligence serves to encourage potential victims to take care; in copyright, rules such as non-ownership of ideas encourage potential follow-on innovators to build on their predecessors. "Copyright as Tort's Mirror" also emphasizes the imperfection of the torts-copyright analogy. Among other things, I suggest, gratitude is often an easier emotion to achieve than forgiveness: The exchange of non-compensated benefits may therefore breed community in a way that the exchange of non-compensated harms might not. The piece being reprinted, "Of Harms and Benefits," primarily addresses the following puzzle: Why is copyright law more willing to internalize positive externalities than is the common law of restitution? Part of the answer lies in the difference in structure between the paradigmatic cases in restitution and copyright. The transaction-cost structure and autonomy implications are significantly different in the two contexts. The article also addresses the choice of "carrots" versus "sticks" as sanctions (in restitution, copyright, and personal injury torts), and offers observations on the packaging of rights, and the impact of institutional form (primarily legislature versus judiciary) on substantive rules.
这两篇论文涉及到转载《危害与利益:侵权、赔偿和知识产权》，21 J. LEGAL STUDIES 449(1992)，以及为学生提供题为《版权作为侵权行为的镜像》的文章介绍。两者都涉及对成文法知识产权法和普通法理论的比较。“著作权作为侵权行为的镜子”课程通过人身伤害法向学生介绍著作权，通过“外部性”的概念将理论联系起来。正如侵权行为法通过让肇事者承担一些造成的成本来阻止浪费的有害行为一样，版权法通过使作者获得产生的一些利益来鼓励有益的行为。因此，对于受过普通法理论训练的人来说，最初将著作权法视为颠倒的侵权法可能是有用的。虽然对版权的全面经济解释需要远远超出侵权类比(考虑诸如行业结构、作者作品的“公共产品”特征等因素)，但对侵权的类比有许多应用。值得注意的是，它可以帮助学生理解法律限制版权的一些原因。例如，考虑一句格言，“侵权需要两个人才行”，它的教训是，原告和被告都可能需要激励。在侵权行为中，比较过失的辩护有助于鼓励潜在受害者注意;在版权方面，诸如创意不拥有所有权之类的规则鼓励潜在的后续创新者在前人的基础上进行创新。“版权是侵权行为的镜子”也强调了侵权与版权类比的不完善之处。除此之外，我认为，感恩往往是比宽恕更容易实现的情感:因此，交换非补偿的利益可能会以一种交换非补偿的伤害可能不会的方式培育社区。这篇被转载的文章《论危害与利益》主要解决了以下问题:为什么版权法比普通法更愿意将积极的外部性内部化?部分原因在于赔偿案件与著作权案件在结构上的差异。在这两种情况下，交易成本结构和自主性的含义有很大的不同。本文还讨论了“胡萝卜”与“大棒”作为制裁的选择(在赔偿、版权和人身伤害侵权中)，并对权利的包装以及制度形式(主要是立法与司法)对实体法的影响提出了看法。
{"title":"1) Copyright as Tort Law's Mirror Image, and 2) of Harms and Benefits: Torts, Restitution, and Intellectual Property (Reprinted from J. Legal Stud.)","authors":"W. J. Gordon","doi":"10.2139/ssrn.433660","DOIUrl":"https://doi.org/10.2139/ssrn.433660","url":null,"abstract":"This pair of papers involves a reprinting of \"Of Harms and Benefits: Torts, Restitution, and Intellectual Property,\" 21 J. LEGAL STUDIES 449 (1992), along with an introduction to that article for students, entitled \"Copyright as Tort's Mirror Image\". Both involve comparisons between statutory intellectual property law and common law doctrines. \"Copyright as Tort's Mirror\" uses personal injury law to introduce students to copyright, making a link between the doctrines through the notion of \"externalities\". Just as tort law discourages wastefully harmful behavior by making perpetrators bear some of the costs inflicted, copyright law encourages beneficial behavior by enabling authors to capture some of the benefits generated. For persons trained in common law doctrines, therefore, it may be useful to approach copyright law initially as if copyright were tort law upside-down. While a full economic account of copyright needs to go far beyond the tort analogy (to consider factors such as industry structures, the \"public goods\" character of authorial work, and so on), the analogy to torts has many applications. Notably, it can help students understand some of the reasons why the law puts limitations on copyright. For example, consider the motto, \"It takes two to tort\", and its lesson that both plaintiffs and defendant may need incentives. In tort, the defense of comparative negligence serves to encourage potential victims to take care; in copyright, rules such as non-ownership of ideas encourage potential follow-on innovators to build on their predecessors. \"Copyright as Tort's Mirror\" also emphasizes the imperfection of the torts-copyright analogy. Among other things, I suggest, gratitude is often an easier emotion to achieve than forgiveness: The exchange of non-compensated benefits may therefore breed community in a way that the exchange of non-compensated harms might not. The piece being reprinted, \"Of Harms and Benefits,\" primarily addresses the following puzzle: Why is copyright law more willing to internalize positive externalities than is the common law of restitution? Part of the answer lies in the difference in structure between the paradigmatic cases in restitution and copyright. The transaction-cost structure and autonomy implications are significantly different in the two contexts. The article also addresses the choice of \"carrots\" versus \"sticks\" as sanctions (in restitution, copyright, and personal injury torts), and offers observations on the packaging of rights, and the impact of institutional form (primarily legislature versus judiciary) on substantive rules.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122147870","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the impact of state laws aimed at protecting health care professionals. During the last decade, as managed care has profoundly changed the way that health care is delivered in the U.S., many patients have complained about denial of care and their inability to challenge those denials. At the same time, some physicians have taken on the role of advocate, arguing on their patients' behalf for more and better care. More than fifteen states have enacted laws declaring that health care professionals (HCPs) cannot be terminated from or otherwise penalized by managed care organizations (MCOs) because of their advocacy. The article explores the history, implementation, and impact of these state advocacy protection statutes, looking at both substantive and procedural obstacles to their enforcement. The article is in four parts. The first section provides an introduction to the concept of advocacy and fiduciary duty, both at common law, and as presently interpreted. This introduction also looks at the phenomenon of HCPs' "deselection," i.e., the termination or non-renewal of HCP contracts with MCOs, emphasizing that the plural of anecdote is not data. The second section surveys the legislative and common law landscape surrounding HCP advocacy, and then examines state statutes that either explicitly or implicitly protect HCP advocacy on behalf of patients. The article next considers whether advocacy protection laws have achieved their purposes, given the substantial theoretical and practical barriers to their implementation, and discusses both ERISA and Medicare preemption as potential hurdles to successful litigation. I conclude that advocacy protection laws have had only a limited in terrorem effect, making it somewhat harder for MCOs to terminate HCPs who advocate for their patients. I argue that current laws are inadequate to ensure that health care professionals will vigorously advocate for their patients, and suggest alternative means to encourage and support patient advocacy, in order to enhance the quality of health care. Because this work is not yet published, the author welcomes all feedback and other suggestions for improvement.
{"title":"Patient Advocacy and Termination from Managed Care Organizations: Do State Laws Protecting Health Care Professional Advocacy Make Any Difference?","authors":"L. Fentiman","doi":"10.2139/SSRN.403620","DOIUrl":"https://doi.org/10.2139/SSRN.403620","url":null,"abstract":"This article examines the impact of state laws aimed at protecting health care professionals. During the last decade, as managed care has profoundly changed the way that health care is delivered in the U.S., many patients have complained about denial of care and their inability to challenge those denials. At the same time, some physicians have taken on the role of advocate, arguing on their patients' behalf for more and better care. More than fifteen states have enacted laws declaring that health care professionals (HCPs) cannot be terminated from or otherwise penalized by managed care organizations (MCOs) because of their advocacy. The article explores the history, implementation, and impact of these state advocacy protection statutes, looking at both substantive and procedural obstacles to their enforcement. The article is in four parts. The first section provides an introduction to the concept of advocacy and fiduciary duty, both at common law, and as presently interpreted. This introduction also looks at the phenomenon of HCPs' \"deselection,\" i.e., the termination or non-renewal of HCP contracts with MCOs, emphasizing that the plural of anecdote is not data. The second section surveys the legislative and common law landscape surrounding HCP advocacy, and then examines state statutes that either explicitly or implicitly protect HCP advocacy on behalf of patients. The article next considers whether advocacy protection laws have achieved their purposes, given the substantial theoretical and practical barriers to their implementation, and discusses both ERISA and Medicare preemption as potential hurdles to successful litigation. I conclude that advocacy protection laws have had only a limited in terrorem effect, making it somewhat harder for MCOs to terminate HCPs who advocate for their patients. I argue that current laws are inadequate to ensure that health care professionals will vigorously advocate for their patients, and suggest alternative means to encourage and support patient advocacy, in order to enhance the quality of health care. Because this work is not yet published, the author welcomes all feedback and other suggestions for improvement.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125697157","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper uses private and environmental cost data for the Netherlands to evaluate the social cost of two final waste disposal methods, landfilling versus incineration using waste-to-energy (WTE) plants. The data only provide some support for the widespread policy preference for incineration over landfilling if the analysis is restricted to environmental costs alone. Private costs, however, are so much higher for incineration, that landfilling is the social cost minimizing option at the margin even in a densely populated country such as the Netherlands. Implications for waste policy are discussed as well. Proper treatment of and energy recovery from landfills seem to be the most important targets for waste policy. WTE plants are a very expensive way to save on climate change emissions.
{"title":"Burn or Bury? A Social Cost Comparison of Final Waste Disposal Methods","authors":"E. Dijkgraaf, H. Vollebergh","doi":"10.2139/ssrn.425281","DOIUrl":"https://doi.org/10.2139/ssrn.425281","url":null,"abstract":"This paper uses private and environmental cost data for the Netherlands to evaluate the social cost of two final waste disposal methods, landfilling versus incineration using waste-to-energy (WTE) plants. The data only provide some support for the widespread policy preference for incineration over landfilling if the analysis is restricted to environmental costs alone. Private costs, however, are so much higher for incineration, that landfilling is the social cost minimizing option at the margin even in a densely populated country such as the Netherlands. Implications for waste policy are discussed as well. Proper treatment of and energy recovery from landfills seem to be the most important targets for waste policy. WTE plants are a very expensive way to save on climate change emissions.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"77 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132828377","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Is death a harm? Is the risk of death a harm? These questions lie at the foundations of risk regulation. Agencies that regulate threats to human life, such as the EPA, OSHA, the FDA, the CPSC, or NHTSA, invariably assume that premature death is a first-party harm - a welfare setback to the person who dies - and often assume that being at risk of death is a distinct and additional first-party harm. If these assumptions are untrue, the myriad statutes and regulations that govern risky activities should be radically overhauled, since the third-party benefits of preventing premature death and the risk of premature death are often too small to justify the large compliance costs that these laws create. In this Article, I consider the harmfulness of death, and of the risk of death, in a philosophically rigorous way. The analysis is complicated, since a variety of plausible theories of welfare have been proposed, and since risk too is a multifaceted concept. A given person P's "risk" of death might be risk in a Bayesian sense (some person's subjective probability that P will die), or risk in the frequentist sense (the objective frequency with which persons like P die prematurely as a result of the kind of threat to which P is exposed). These two conceptions of risk are very different, yet too often are not distinguished in legal or policy-analytic writing about risk. As for the harmfulness of death: this raises knotty philosophical problems, problems that have prompted some contemporary philosophers to deny that the dying person is worse off than she would have been had she continued to live. I ultimately conclude that death is a first-person welfare setback - common sense is vindicated here, I argue - as is risk in the Bayesian sense, but that risk in the frequentist sense is not. This conclusion has implications for a range of regulatory practices - specifically, for cost-benefit analysis, risk-risk analysis, the interpretation of statutes that create health or safety thresholds, environmental justice policy, and comparative risk analysis - and also for tort and criminal law. These implications are explored, at length, in the final section of the Article. In particular: the widespread use of frequentist risk measures as a determinant of regulatory choice is misguided. EPA, OSHA, FDA and other federal and state agencies typically determine how stringently to regulate some toxin by looking (at least in part) to the frequentist risk imposed by the toxin on the maximally exposed, highly exposed, or representative individual. Similarly, environmental justice analysis is often keyed to the distribution of frequentist risks. And some propose that regulatory priority-setting (so-called comparative risk assessment) also take into consideration frequentist risk. This regulatory focus on frequentist risk was encouraged by the Supreme Court's seminal decision in the "Benzene" case (Industrial Union Dept v. American Petroleum Institute, 1980), and is endorsed by th
{"title":"Risk, Death and Harm: The Normative Foundations of Risk Regulation","authors":"M. Adler","doi":"10.2139/SSRN.410881","DOIUrl":"https://doi.org/10.2139/SSRN.410881","url":null,"abstract":"Is death a harm? Is the risk of death a harm? These questions lie at the foundations of risk regulation. Agencies that regulate threats to human life, such as the EPA, OSHA, the FDA, the CPSC, or NHTSA, invariably assume that premature death is a first-party harm - a welfare setback to the person who dies - and often assume that being at risk of death is a distinct and additional first-party harm. If these assumptions are untrue, the myriad statutes and regulations that govern risky activities should be radically overhauled, since the third-party benefits of preventing premature death and the risk of premature death are often too small to justify the large compliance costs that these laws create. In this Article, I consider the harmfulness of death, and of the risk of death, in a philosophically rigorous way. The analysis is complicated, since a variety of plausible theories of welfare have been proposed, and since risk too is a multifaceted concept. A given person P's \"risk\" of death might be risk in a Bayesian sense (some person's subjective probability that P will die), or risk in the frequentist sense (the objective frequency with which persons like P die prematurely as a result of the kind of threat to which P is exposed). These two conceptions of risk are very different, yet too often are not distinguished in legal or policy-analytic writing about risk. As for the harmfulness of death: this raises knotty philosophical problems, problems that have prompted some contemporary philosophers to deny that the dying person is worse off than she would have been had she continued to live. I ultimately conclude that death is a first-person welfare setback - common sense is vindicated here, I argue - as is risk in the Bayesian sense, but that risk in the frequentist sense is not. This conclusion has implications for a range of regulatory practices - specifically, for cost-benefit analysis, risk-risk analysis, the interpretation of statutes that create health or safety thresholds, environmental justice policy, and comparative risk analysis - and also for tort and criminal law. These implications are explored, at length, in the final section of the Article. In particular: the widespread use of frequentist risk measures as a determinant of regulatory choice is misguided. EPA, OSHA, FDA and other federal and state agencies typically determine how stringently to regulate some toxin by looking (at least in part) to the frequentist risk imposed by the toxin on the maximally exposed, highly exposed, or representative individual. Similarly, environmental justice analysis is often keyed to the distribution of frequentist risks. And some propose that regulatory priority-setting (so-called comparative risk assessment) also take into consideration frequentist risk. This regulatory focus on frequentist risk was encouraged by the Supreme Court's seminal decision in the \"Benzene\" case (Industrial Union Dept v. American Petroleum Institute, 1980), and is endorsed by th","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-05-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125593809","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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