"Private Data, Public Safety: A Bounded Access Model of Disclosure" Free Download
94 North Carolina Law Review, 2015, Forthcoming
University of Washington School of Law Research Paper No. 2015-30

MARY D. FAN, University of Washington - School of Law

A growing volume of crucial information for protecting public health and safety is controlled by private-sector entities. The data is private in two senses - both proprietary and secluded from scrutiny. Controversies over corporate secrecy, such as sealed settlements that hide deaths due to product defects or nondisclosure of potentially hazardous substances, illustrate how corporate privacy and public safety can conflict. Courts are conflicted about when to defer to companies’ claims of the right to keep information private - even when important public interests are implicated by the data that companies refuse to disclose. This article proposes allowing what it terms “bounded access? to share such private data important to public health and safety with safeguards for the private interests at stake.

In contrast to mandated public disclosure regimes, bounded access would provide information access to trained professionals capable of effectively using data to detect health and safety harms while honoring data protections. The paradigmatic audience for bounded-access private data disclosures is researchers overseen by institutional review boards and trained in how to minimize damage to data owners. Information aggregation and de-identification can help protect the anonymity of the private entities and their product lines, thereby ameliorating the concerns of private entities regarding prematurely rousing consumer panic, injuring brand reputation, or destroying trade secrets.

Such bounded access would address the limitations of general public disclosure, such as conflict with the Fifth Amendment Takings Clause or piling more disclosure on the information-overloaded consumer. Information would be rich in technical details to facilitate effective expert analyses rather than pared down for general public consumption. The proposed approach thus balances private-sector interests with the public interest in protecting population health and safety.

"Reasonableness In and Out of Negligence Law" Free Download
University of Pennsylvania Law Review, Vol. 163, p. 2131, 2015
Fordham Law Legal Studies Research Paper No. 2663658

BENJAMIN C. ZIPURSKY, Fordham University School of Law

The word “reasonable? and its cognates figure prominently in innumerable areas of the law – from antitrust and contract law to administrative and constitutional law, from the common law of nuisance to an assortment of rules in statutes and regulations. While some thinkers have equated “reasonableness? with “rationality,? others have looked to “justifiability,? and others still have decided that “reasonableness? means virtually nothing at all, but serves the important function of allocating decisionmaking authority. The reality is that the term “reasonable? is both vague and ambiguous, and thus plays many different roles in the law. As with terms such as “rights? and “responsibility,? we will benefit from an analysis of “reasonable? that admits that different meanings take center stage in different legal contexts. This broad, ‘varietal’ analysis of reasonableness in the law comprises the first half of the article.

Turning to negligence law, the second half of the article offers a broad critique of the Hand formula conception of reasonableness. The article criticizes both the Posnerian/economic interpretation of the Hand formula and the more basic idea (in the Restatement (First)) that the “unreasonableness? of risk is the core of negligence law. The breach element of negligence law is focused first and foremost not on a level of risk but on a kind of person – a reasonably prudent person or a reasonable person. By attending closely to the role of reasonableness concepts in various aspects of negligence doctrine, and comparing them to reasonableness concepts in other parts of the law, the article constructs and defends a “moderation and mutuality? conception of reasonableness in negligence law.

"Non-Economic Damages in Medical Malpractice Appeals: Does the Jurisdiction Make a Difference?" Free Download
DIW Berlin Discussion Paper No. 1506

SOFIA AMARAL-GARCIA, German Institute for Economic Research (DIW Berlin)

This article assesses predictors of payouts and non-economic damages in medical malpractice cases decided by the Spanish Supreme Court from 2006 until 2010. Medical malpractice cases can be judged in administrative or civil courts, and this distinction heavily relies on the type of hospital where the medical accident took place (in general terms, administrative courts judge cases involving public hospitals and civil courts judge cases involving private hospitals). I find that cases decided by the Administrative Section of the Supreme Court are not more likely to receive damages than cases decided by the Civil Section. The probability of receiving compensation is significantly higher among cases involving permanent major/grave injuries. With respect to non-economic compensation amounts, there are no significant differences between Administrative and Civil cases. This result is confirmed by matching estimation and simulation exercises. There is evidence of vertical inequality according to the level of harm: cases involving permanent grave injuries are those receiving the highest non-economic damages, followed by permanent major, death, permanent minor and temporary/emotional cases. Differences in compensation awards between Administrative and Civil courts has been one argument widely used against the current separation of jurisdictions in many civil law tradition countries. The results found in this paper do not support this claim.


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This eJournal distributes working and accepted paper abstracts dealing with torts, product liability, and insurance law. Related articles may also be published in other Legal Scholarship Network journals, including Law and Economics; Litigation, Procedure, and Dispute Resolution; Health Law and Policy; Employment and Labor Law; and Environmental Law and Policy.

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Torts & Products Liability Law eJournal

Anita and Stuart Subotnick Professor of Law, Brooklyn Law School

Laurence A. Tisch Professor of Law , New York University School of Law, Stanford University - Hoover Institution on War, Revolution and Peace, James Parker Hall Distinguished Service Professor of Law Emeritus, University of Chicago - Law School

Sheila Lubetsky Birnbaum Professor of Civil Litigation, New York University School of Law

Professor of Law, University of California, Los Angeles (UCLA) - School of Law

William B. Graham Professor of Law, University of Chicago Law School

A. Calder Mackay Professor of Law, Stanford Law School

University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Law School, Research Associate, National Bureau of Economic Research (NBER), University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Department of Economics, University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Owen Graduate School of Management, Vanderbilt University - Strategy and Business Economics

Professor of Law, Illinois Institute of Technology - Chicago-Kent College of Law