Pei Guosong died when he drove his Dayun-48 light motorcycle into the back of a farm tractor parked on the side of a road in rural Hubei province on the afternoon of October 1, 2010. A police inspection found that Pei was primarily responsible for the accident because he had been drunk, failed to wear a helmet, and was riding without a license at the time of his death. Nevertheless, the police also found Liu Chuanbin, the owner of the tractor, to be secondarily at fault because he had blocked traffic when he temporarily parked his tractor. Liu had done so to help a third person, Liu Yi, load rice that Liu Yi had been drying on the road. Pei’s wife and two grown sons brought suit against Liu Chuanbin, Liu Yi, and the transportation and road safety offices of the local county government. Although the police report on the accident did not assign responsibility to either Liu Yi or to the local government, the court imposed liability on all of the defendants other than the local transportation department. The court assessed total damages at 371,358 yuan (roughly $55,000). It ordered Liu Yi and Liu Chuanbin jointly to pay 15% of the damages, or 55,703 yuan, plus 4500 yuan in emotional compensation to the plaintiffs. The court found that the rice farmer, Liu Yi, was liable because he had acted illegally in drying rice on the road. The court also ordered the local road safety office to pay 10% of damages, or 37,135 yuan, plus
{"title":"Ordinary Tort Litigation in China: Law versus Practical Justice?","authors":"B. Liebman","doi":"10.1515/jtl-2019-0033","DOIUrl":"https://doi.org/10.1515/jtl-2019-0033","url":null,"abstract":"Pei Guosong died when he drove his Dayun-48 light motorcycle into the back of a farm tractor parked on the side of a road in rural Hubei province on the afternoon of October 1, 2010. A police inspection found that Pei was primarily responsible for the accident because he had been drunk, failed to wear a helmet, and was riding without a license at the time of his death. Nevertheless, the police also found Liu Chuanbin, the owner of the tractor, to be secondarily at fault because he had blocked traffic when he temporarily parked his tractor. Liu had done so to help a third person, Liu Yi, load rice that Liu Yi had been drying on the road. Pei’s wife and two grown sons brought suit against Liu Chuanbin, Liu Yi, and the transportation and road safety offices of the local county government. Although the police report on the accident did not assign responsibility to either Liu Yi or to the local government, the court imposed liability on all of the defendants other than the local transportation department. The court assessed total damages at 371,358 yuan (roughly $55,000). It ordered Liu Yi and Liu Chuanbin jointly to pay 15% of the damages, or 55,703 yuan, plus 4500 yuan in emotional compensation to the plaintiffs. The court found that the rice farmer, Liu Yi, was liable because he had acted illegally in drying rice on the road. The court also ordered the local road safety office to pay 10% of damages, or 37,135 yuan, plus","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"13 1","pages":"197 - 228"},"PeriodicalIF":0.0,"publicationDate":"2020-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2019-0033","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43617467","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}
Abstract This article provides a history of especial importance to abortion politics today, based on research involving a dataset of over 1,200 wrongful conception, wrongful birth, wrongful life, and standard torts for prenatal injuries. In documenting the rise of these torts over the twentieth century, I specifically focus on how this domain of litigation dramatically changed beginning in the 1960s and 1970s, with the recognition of the constitutional rights to contraception and abortion. I provide an exhaustive survey of an underappreciated yet robust arena of public policy at the intersection of reproductive rights and tort law, emphasizing the reciprocal relationship between these torts and reproductive rights. State courts and legislatures continue to debate into the present about whether to ban, permit, or restrict damages in these torts, debates that have been perennial since the early 1970s. Using several timelines created in Stata to plot the annual frequency of the above cases from the late 1800s into the present, as well as several maps providing a 50-state overview, I highlight a specific arena in which reproductive rights are forged, one revealing problematic aspects of a “post-Roe era” of public policy regarding the benefits and harms of unexpected children.
{"title":"The Impact of Roe on Prenatal Tort Litigation: On the Public Policy of Unexpected Children","authors":"L. Haqq","doi":"10.1515/jtl-2019-0008","DOIUrl":"https://doi.org/10.1515/jtl-2019-0008","url":null,"abstract":"Abstract This article provides a history of especial importance to abortion politics today, based on research involving a dataset of over 1,200 wrongful conception, wrongful birth, wrongful life, and standard torts for prenatal injuries. In documenting the rise of these torts over the twentieth century, I specifically focus on how this domain of litigation dramatically changed beginning in the 1960s and 1970s, with the recognition of the constitutional rights to contraception and abortion. I provide an exhaustive survey of an underappreciated yet robust arena of public policy at the intersection of reproductive rights and tort law, emphasizing the reciprocal relationship between these torts and reproductive rights. State courts and legislatures continue to debate into the present about whether to ban, permit, or restrict damages in these torts, debates that have been perennial since the early 1970s. Using several timelines created in Stata to plot the annual frequency of the above cases from the late 1800s into the present, as well as several maps providing a 50-state overview, I highlight a specific arena in which reproductive rights are forged, one revealing problematic aspects of a “post-Roe era” of public policy regarding the benefits and harms of unexpected children.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"13 1","pages":"160 - 81"},"PeriodicalIF":0.0,"publicationDate":"2020-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2019-0008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47932450","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}
Abstract A popular view among tort theorists is that an explanation of tort law must take account its “structure,” since this structure constitutes the law’s “self-understanding.” This view is used to both criticize competing functional accounts of tort law, especially economic ones, that are said to ignore tort law’s structure, and, more constructively, as a basis for explaining various tort doctrines. In this essay, I consider this argument closely and conclude that it is faulty. To be valid, one needs a non-question begging way of identifying the essence of tort law. I argue that law’s “self-understanding” can only make sense if it means the understanding of certain people. Examining those, I conclude that the claim of structuralists is false, for there are many people who take its function to be central. I then further show that if one wishes to understand the development of tort law’s doctrine one must take both structure and function into account. I demonstrate this claim by examining the development of the doctrine dealing with causal uncertainty and vicarious liability.
{"title":"Structure, Function, and Tort Law","authors":"Dan Priel","doi":"10.1515/jtl-2020-2001","DOIUrl":"https://doi.org/10.1515/jtl-2020-2001","url":null,"abstract":"Abstract A popular view among tort theorists is that an explanation of tort law must take account its “structure,” since this structure constitutes the law’s “self-understanding.” This view is used to both criticize competing functional accounts of tort law, especially economic ones, that are said to ignore tort law’s structure, and, more constructively, as a basis for explaining various tort doctrines. In this essay, I consider this argument closely and conclude that it is faulty. To be valid, one needs a non-question begging way of identifying the essence of tort law. I argue that law’s “self-understanding” can only make sense if it means the understanding of certain people. Examining those, I conclude that the claim of structuralists is false, for there are many people who take its function to be central. I then further show that if one wishes to understand the development of tort law’s doctrine one must take both structure and function into account. I demonstrate this claim by examining the development of the doctrine dealing with causal uncertainty and vicarious liability.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"13 1","pages":"31 - 79"},"PeriodicalIF":0.0,"publicationDate":"2020-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2020-2001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42460407","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}
Abstract Leading accounts of tort law split cleanly into two seams. Some trace its foundations to a deontic form of morality; others to an instrumental, policy-oriented system of efficient loss allocation. An increasingly prominent alternative to both seams, Civil Recourse Theory (CRT) resists this binary by arguing that tort comprises a basic legal category, and that its directives constitute reasons for action with robust normative force. Using the familiar question whether tort’s directives are guidance rules or liability rules as a lens, or prism, this essay shows how considerations of practical reasoning undermine one of CRT’s core commitments. If tort directives exert robust normative force, we must account for its grounds—for where it comes from, and why it obtains. CRT tries to do so by co-opting H.L.A. Hart’s notion of the internal point of view, but this leveraging strategy cannot succeed: while the internal point of view sees legal directives as guides to action, tort law merely demands conformity. To be guided by a directive is to comply with it, not conform to it, so tort’s structure blocks the shortcut to normativity CRT attempts to navigate. Given the fine-grained distinctions the theory makes, and with the connection between its claims and tort’s requirements thus severed, CRT faces a dilemma: it’s either unresponsive to tort’s normative grounds, or it’s inattentive to tort’s extensional structure.
{"title":"Tort’s Indifference: Conformity, Compliance, and Civil Recourse","authors":"Ahson Azmat","doi":"10.1515/jtl-2019-0017","DOIUrl":"https://doi.org/10.1515/jtl-2019-0017","url":null,"abstract":"Abstract Leading accounts of tort law split cleanly into two seams. Some trace its foundations to a deontic form of morality; others to an instrumental, policy-oriented system of efficient loss allocation. An increasingly prominent alternative to both seams, Civil Recourse Theory (CRT) resists this binary by arguing that tort comprises a basic legal category, and that its directives constitute reasons for action with robust normative force. Using the familiar question whether tort’s directives are guidance rules or liability rules as a lens, or prism, this essay shows how considerations of practical reasoning undermine one of CRT’s core commitments. If tort directives exert robust normative force, we must account for its grounds—for where it comes from, and why it obtains. CRT tries to do so by co-opting H.L.A. Hart’s notion of the internal point of view, but this leveraging strategy cannot succeed: while the internal point of view sees legal directives as guides to action, tort law merely demands conformity. To be guided by a directive is to comply with it, not conform to it, so tort’s structure blocks the shortcut to normativity CRT attempts to navigate. Given the fine-grained distinctions the theory makes, and with the connection between its claims and tort’s requirements thus severed, CRT faces a dilemma: it’s either unresponsive to tort’s normative grounds, or it’s inattentive to tort’s extensional structure.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"13 1","pages":"1 - 30"},"PeriodicalIF":0.0,"publicationDate":"2020-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2019-0017","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42895643","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}
Abstract Aiding and abetting is a popular and well-known basis of criminal liability. Yet its civil counterpart, civil aiding and abetting, exists in relative obscurity. Like criminal aiding and abetting, civil aiding and abetting is of ancient origin, but it has only achieved contemporary popularity in particular niche areas like business torts and human rights statutes. In some states, it currently exists in a strange legal limbo, with perhaps some specific forms of civil aiding and abetting recognized (like aiding and abetting fraud), but with its status as a general fount of tort liability uncertain. This Article argues that the disregard for civil aiding and abetting is an error, as civil aiding and abetting can play an important role in remedying contemporary harms. Specifically, civil aiding and abetting can bridge gaps left by duty rules in negligence. This gap-filling function will be further enhanced if courts continue the nascent trend of accepting that in certain circumstances, a failure to act can be a form of substantial assistance. As our cultural understandings of complicity broaden, aiding and abetting can serve as an important tool for allocating responsibility and achieving just compensation. Although it is often mistakenly eclipsed by other forms of joint liability, civil aiding and abetting has significant independent value.
{"title":"Aiding and Abetting Matters","authors":"S. Swan","doi":"10.1515/jtl-2019-0030","DOIUrl":"https://doi.org/10.1515/jtl-2019-0030","url":null,"abstract":"Abstract Aiding and abetting is a popular and well-known basis of criminal liability. Yet its civil counterpart, civil aiding and abetting, exists in relative obscurity. Like criminal aiding and abetting, civil aiding and abetting is of ancient origin, but it has only achieved contemporary popularity in particular niche areas like business torts and human rights statutes. In some states, it currently exists in a strange legal limbo, with perhaps some specific forms of civil aiding and abetting recognized (like aiding and abetting fraud), but with its status as a general fount of tort liability uncertain. This Article argues that the disregard for civil aiding and abetting is an error, as civil aiding and abetting can play an important role in remedying contemporary harms. Specifically, civil aiding and abetting can bridge gaps left by duty rules in negligence. This gap-filling function will be further enhanced if courts continue the nascent trend of accepting that in certain circumstances, a failure to act can be a form of substantial assistance. As our cultural understandings of complicity broaden, aiding and abetting can serve as an important tool for allocating responsibility and achieving just compensation. Although it is often mistakenly eclipsed by other forms of joint liability, civil aiding and abetting has significant independent value.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"12 1","pages":"255 - 282"},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2019-0030","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49243281","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}
It is widely known that fewer scholars are writing about tort law. Schools are hiring in other areas – health and environmental law are common – and assign the hires to teach Torts, as well. There are, however, several authentic torts scholars among those recently arrived in the academy. We selected four to write for this issue’s symposium on New Voices. They are interested in different facets of tort law, and they write from different perspectives. They share a commitment to careful, interesting, and relevant scholarship. Alex Lemann addresses one of the hottest topics in tort law: liability for autonomous vehicles. Lemann denies that promoting the adoption of lifesaving technology, the focus of many scholars, should be the goal of a liability system for autonomous vehicles. Instead, Lemann argues that tort law should provide redress for those who have been wronged by defective products. Writing from a law-and-economics deterrence perspective, Benjamin McMichael addresses the issue of whether state scope-of-practice laws should require physicians to supervise nurse practitioners. Analyzing a unique dataset of malpractice insurance premiums charged to physicians in various specialties, McMichael concludes that the imposition of physician supervision requirements may blunt the role of tort law in deterring the provision of unsafe or low-quality care. Sarah Swan argues for an increased focus on the civil law of aiding and abetting. After describing its lengthy history, Swan discusses possible modern uses of aiding and abetting. Specifically, she believes it can fill gaps left by duty rules in negligence, perhaps most importantly in cases of failure to act by people in positions of authority and people who encourage conduct by spectating. Invoking the New Private Law movement, Cristina Tilley sets out to refute the idea that the tort of outrage (or intentional infliction of emotional distress) is inherently subjective. She argues the gist of outrageous conduct is biological. The “fight or flight” response in human beings is positive in that it serves to aid survival. When the response is triggered, but impediments prevent a person from acting, antisocial emotional distress is created. It is the creation of this
{"title":"Editor’s Introduction Symposium Issue: New Voices","authors":"C. Robinette","doi":"10.1515/jtl-2019-0032","DOIUrl":"https://doi.org/10.1515/jtl-2019-0032","url":null,"abstract":"It is widely known that fewer scholars are writing about tort law. Schools are hiring in other areas – health and environmental law are common – and assign the hires to teach Torts, as well. There are, however, several authentic torts scholars among those recently arrived in the academy. We selected four to write for this issue’s symposium on New Voices. They are interested in different facets of tort law, and they write from different perspectives. They share a commitment to careful, interesting, and relevant scholarship. Alex Lemann addresses one of the hottest topics in tort law: liability for autonomous vehicles. Lemann denies that promoting the adoption of lifesaving technology, the focus of many scholars, should be the goal of a liability system for autonomous vehicles. Instead, Lemann argues that tort law should provide redress for those who have been wronged by defective products. Writing from a law-and-economics deterrence perspective, Benjamin McMichael addresses the issue of whether state scope-of-practice laws should require physicians to supervise nurse practitioners. Analyzing a unique dataset of malpractice insurance premiums charged to physicians in various specialties, McMichael concludes that the imposition of physician supervision requirements may blunt the role of tort law in deterring the provision of unsafe or low-quality care. Sarah Swan argues for an increased focus on the civil law of aiding and abetting. After describing its lengthy history, Swan discusses possible modern uses of aiding and abetting. Specifically, she believes it can fill gaps left by duty rules in negligence, perhaps most importantly in cases of failure to act by people in positions of authority and people who encourage conduct by spectating. Invoking the New Private Law movement, Cristina Tilley sets out to refute the idea that the tort of outrage (or intentional infliction of emotional distress) is inherently subjective. She argues the gist of outrageous conduct is biological. The “fight or flight” response in human beings is positive in that it serves to aid survival. When the response is triggered, but impediments prevent a person from acting, antisocial emotional distress is created. It is the creation of this","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"12 1","pages":"155 - 156"},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2019-0032","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45904875","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}
Abstract The tort of outrage has been sidelined in recent decades by judges and academics who question its legitimacy. This Article is an attempt to move outrage from the margins to the center of American tort law. It begins by unearthing the complex intellectual history that produced judicial skepticism about this tort. The Legal Realists who “invented” outrage made a strategic decision to condition liability on the “outrageousness” of behavior rather than to identify discrete acts as wrongful. This doctrinal indeterminacy was necessary to quell corporate opposition to the tort. Ultimately, however, it has led modern courts and scholars to label outrage as “inherently subjective” and therefore “disfavored.” The Article challenges this conventional view by proposing a scientific basis for distinguishing ordinary aggression from its outrageous counterpart. Neuroscience literature suggests that threats levelled with awareness of a target´s inability to follow through on the biologically reflexive fight or flight response produce physiologically maladaptive distress. In contrast, threats to which a target can freely respond produce benign, adaptive, stress. Consequently, defendant aggression is “outrageous” when it exploits a plaintiff’s known inability to execute a prosocial response. This science-based model of “outrageousness” provides a neutral baseline against which to evaluate the critique that the tort necessarily requires subjective evaluations of defendant behavior. When plaintiff paralysis results from external dynamics the defendant recognized and exploited, jurors need not assign priority to either the plaintiff’s or the defendant’s worldview to find a wrong. But when plaintiff paralysis results from internal feelings of powerlessness that may stem from race or gender experience, jurors must credit the plaintiff’s experience and disregard the defendant´s apparent ignorance of it in order to find a wrong, a process that appears to subjectively prioritize one worldview over another. So whether liability is objective or subjective in a given case turns on whether the impediment to plaintiff action was external or internal. In its concluding section, the Article undertakes an empirical examination of jury verdicts to determine the relative frequency of “objective” and “subjective” liability assignments. It finds that juries are most likely to assign liability in situations where plaintiff paralysis arose from external, objectively observable impediments recognized by defendants. In other words, outrage liability typically stigmatizes behavior that is objectively understood by both the defendant and the community at large to be antisocial. That said, juries occasionally assign liability where a woman or a person of color felt paralyzed by perceived powerlessness the defendant may not have appreciated. The Article ultimately suggests that this small but persistent segment of “subjective” verdicts – far from demonstrating the tort’s illegitimac
{"title":"The Tort of Outrage and Some Objectivity about Subjectivity","authors":"Cristina Carmody Tilley","doi":"10.1515/jtl-2019-0031","DOIUrl":"https://doi.org/10.1515/jtl-2019-0031","url":null,"abstract":"Abstract The tort of outrage has been sidelined in recent decades by judges and academics who question its legitimacy. This Article is an attempt to move outrage from the margins to the center of American tort law. It begins by unearthing the complex intellectual history that produced judicial skepticism about this tort. The Legal Realists who “invented” outrage made a strategic decision to condition liability on the “outrageousness” of behavior rather than to identify discrete acts as wrongful. This doctrinal indeterminacy was necessary to quell corporate opposition to the tort. Ultimately, however, it has led modern courts and scholars to label outrage as “inherently subjective” and therefore “disfavored.” The Article challenges this conventional view by proposing a scientific basis for distinguishing ordinary aggression from its outrageous counterpart. Neuroscience literature suggests that threats levelled with awareness of a target´s inability to follow through on the biologically reflexive fight or flight response produce physiologically maladaptive distress. In contrast, threats to which a target can freely respond produce benign, adaptive, stress. Consequently, defendant aggression is “outrageous” when it exploits a plaintiff’s known inability to execute a prosocial response. This science-based model of “outrageousness” provides a neutral baseline against which to evaluate the critique that the tort necessarily requires subjective evaluations of defendant behavior. When plaintiff paralysis results from external dynamics the defendant recognized and exploited, jurors need not assign priority to either the plaintiff’s or the defendant’s worldview to find a wrong. But when plaintiff paralysis results from internal feelings of powerlessness that may stem from race or gender experience, jurors must credit the plaintiff’s experience and disregard the defendant´s apparent ignorance of it in order to find a wrong, a process that appears to subjectively prioritize one worldview over another. So whether liability is objective or subjective in a given case turns on whether the impediment to plaintiff action was external or internal. In its concluding section, the Article undertakes an empirical examination of jury verdicts to determine the relative frequency of “objective” and “subjective” liability assignments. It finds that juries are most likely to assign liability in situations where plaintiff paralysis arose from external, objectively observable impediments recognized by defendants. In other words, outrage liability typically stigmatizes behavior that is objectively understood by both the defendant and the community at large to be antisocial. That said, juries occasionally assign liability where a woman or a person of color felt paralyzed by perceived powerlessness the defendant may not have appreciated. The Article ultimately suggests that this small but persistent segment of “subjective” verdicts – far from demonstrating the tort’s illegitimac","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"12 1","pages":"283 - 360"},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2019-0031","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46150293","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}
Abstract Medical malpractice liability plays an important role in the healthcare system, as evidenced by the many studies finding that changes in malpractice liability risk induce changes in the delivery and consumption of care. Importantly, the effect of malpractice liability depends on who is held liable, and recent developments in the healthcare system have clouded which providers face the risk of liability in certain situations. In particular, as the United States continues to face a physician shortage, nurse practitioners (NPs) have assumed greater roles within the healthcare system. Their ability to provide care, however, depends on state scope-of-practice (SOP) laws which often mandate that physicians supervise NPs’ practices. These mandatory supervision laws can facilitate the ability of injured patients to use various familiar doctrines, e. g. respondeat superior and negligent supervision, to hold supervising physicians liable based on the acts of NPs. As healthcare becomes increasingly team-based and as NPs deliver more care traditionally provided by physicians, understanding the interaction between malpractice liability and SOP laws will become critical. This Article reports novel empirical evidence on the interplay between malpractice liability and SOP laws. Examining a unique dataset of the malpractice premiums charged to physicians in various specialties, I analyze the extent to which SOP laws requiring that physicians supervise the practices of NPs impact the malpractice liability risk faced by physicians. In general, eliminating physician supervision requirements reduce the malpractice risk faced by physicians (as measured by the premiums paid to insure against this risk) by 7.5 %. In addition to elucidating a previously unappreciated interaction between tort law and state SOP laws, this evidence suggests that the imposition of physician supervision requirements may blunt the role of tort law in deterring the provision of unsafe or low-quality care. If SOP laws facilitate the shifting of liability risk from NPs to physicians through various tort doctrines, then neither NPs nor physicians will be appropriately deterred. Indeed, reaching optimal deterrence for one group would necessarily imply suboptimality for the other. This Article reviews several options to address this problem and recommends removing physician supervision requirements from state SOP laws.
{"title":"Shifting Liability with Licensing: An Empirical Analysis of Medical Malpractice and Scope-of-Practice Laws","authors":"Benjamin J. McMichael","doi":"10.1515/jtl-2019-0028","DOIUrl":"https://doi.org/10.1515/jtl-2019-0028","url":null,"abstract":"Abstract Medical malpractice liability plays an important role in the healthcare system, as evidenced by the many studies finding that changes in malpractice liability risk induce changes in the delivery and consumption of care. Importantly, the effect of malpractice liability depends on who is held liable, and recent developments in the healthcare system have clouded which providers face the risk of liability in certain situations. In particular, as the United States continues to face a physician shortage, nurse practitioners (NPs) have assumed greater roles within the healthcare system. Their ability to provide care, however, depends on state scope-of-practice (SOP) laws which often mandate that physicians supervise NPs’ practices. These mandatory supervision laws can facilitate the ability of injured patients to use various familiar doctrines, e. g. respondeat superior and negligent supervision, to hold supervising physicians liable based on the acts of NPs. As healthcare becomes increasingly team-based and as NPs deliver more care traditionally provided by physicians, understanding the interaction between malpractice liability and SOP laws will become critical. This Article reports novel empirical evidence on the interplay between malpractice liability and SOP laws. Examining a unique dataset of the malpractice premiums charged to physicians in various specialties, I analyze the extent to which SOP laws requiring that physicians supervise the practices of NPs impact the malpractice liability risk faced by physicians. In general, eliminating physician supervision requirements reduce the malpractice risk faced by physicians (as measured by the premiums paid to insure against this risk) by 7.5 %. In addition to elucidating a previously unappreciated interaction between tort law and state SOP laws, this evidence suggests that the imposition of physician supervision requirements may blunt the role of tort law in deterring the provision of unsafe or low-quality care. If SOP laws facilitate the shifting of liability risk from NPs to physicians through various tort doctrines, then neither NPs nor physicians will be appropriately deterred. Indeed, reaching optimal deterrence for one group would necessarily imply suboptimality for the other. This Article reviews several options to address this problem and recommends removing physician supervision requirements from state SOP laws.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"12 1","pages":"213 - 253"},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2019-0028","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48832941","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}
Abstract Autonomous vehicles are widely expected to save tens of thousands of lives each year by making car crashes attributable to human error – currently the overwhelming majority of fatal crashes – a thing of the past. How the legal system should attribute responsibility for the (hopefully few) crashes autonomous vehicles cause is an open and hotly debated question. Most tort scholars approach this question by asking what liability rule is most likely to achieve the desired policy outcome: promoting the adoption of this lifesaving technology without destroying manufacturers’ incentives to optimize it. This approach has led to a wide range of proposals, many of which suggest replacing standard rules of products liability with some new system crafted specifically for autonomous vehicles and creating immunity or absolute liability or something in between. But, I argue, the relative safety of autonomous vehicles should not be relevant in determining whether and in what ways manufacturers are held liable for their crashes. The history of products liability litigation over motor vehicle design shows that the tort system has been hesitant to indulge in such comparisons, as it generally declines both to impose liability on older, more dangerous cars simply because they lack the latest safety features and to grant immunity to newer, safer cars simply because of their superior aggregate performance. These are instances in which products liability law fails to promote efficient outcomes and instead provides redress for those who have been wronged by defective products. Applying these ideas to the four fatalities that have so far been caused by autonomous vehicles suggests that just as conventional vehicles should not be considered defective in relying on a human driver, autonomous vehicles should not be immune when their defects cause injury.
{"title":"Autonomous Vehicles, Technological Progress, and the Scope Problem in Products Liability","authors":"Alexander B. Lemann","doi":"10.1515/jtl-2019-0029","DOIUrl":"https://doi.org/10.1515/jtl-2019-0029","url":null,"abstract":"Abstract Autonomous vehicles are widely expected to save tens of thousands of lives each year by making car crashes attributable to human error – currently the overwhelming majority of fatal crashes – a thing of the past. How the legal system should attribute responsibility for the (hopefully few) crashes autonomous vehicles cause is an open and hotly debated question. Most tort scholars approach this question by asking what liability rule is most likely to achieve the desired policy outcome: promoting the adoption of this lifesaving technology without destroying manufacturers’ incentives to optimize it. This approach has led to a wide range of proposals, many of which suggest replacing standard rules of products liability with some new system crafted specifically for autonomous vehicles and creating immunity or absolute liability or something in between. But, I argue, the relative safety of autonomous vehicles should not be relevant in determining whether and in what ways manufacturers are held liable for their crashes. The history of products liability litigation over motor vehicle design shows that the tort system has been hesitant to indulge in such comparisons, as it generally declines both to impose liability on older, more dangerous cars simply because they lack the latest safety features and to grant immunity to newer, safer cars simply because of their superior aggregate performance. These are instances in which products liability law fails to promote efficient outcomes and instead provides redress for those who have been wronged by defective products. Applying these ideas to the four fatalities that have so far been caused by autonomous vehicles suggests that just as conventional vehicles should not be considered defective in relying on a human driver, autonomous vehicles should not be immune when their defects cause injury.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"12 1","pages":"157 - 212"},"PeriodicalIF":0.0,"publicationDate":"2019-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2019-0029","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44526936","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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