Table of Contents

Interim Payments and Economic Damages to Compensate Private-Party Victims of Hazardous Releases

Julie E. Steiner, Western New England University School of Law

Private Solutions to Global Crises

Gregory Day, Oklahoma State University - Stillwater - Spears School of Business

Financially-Constrained Lawyers

Claudia M. Landeo, University of Alberta - Department of Economics
Maxim Nikitin, Higher School of Economics

Feasibility of a Health Utilities Approach for Quantifying Noneconomic Losses from Personal Injury

Natalie Carvalho, University of Melbourne
Joshua Salomon, Harvard University - Department of Population and International Health
Genevieve Grant, Monash University - Faculty of Law
David Fish, Monash University - Faculty of Medicine, Nursing and Health Sciences
David M. Studdert, Stanford Law School

Contributory Negligence in the Twenty-First Century: An Empirical Study of Trial Court Decisions

James Goudkamp, University of Oxford - Faculty of Law
Donal Nolan, University of Oxford - Worcester College

Rethinking the Great Compromise: What Happens When Large Companies Opt Out of Workers' Compensation?

Alison D. Morantz, Stanford University


TORTS & PRODUCTS LIABILITY LAW eJOURNAL

"Interim Payments and Economic Damages to Compensate Private-Party Victims of Hazardous Releases" Free Download
Marquette Law Review, Vol. 98, p. 1313, 2015
Western New England University School of Law Legal Studies Research Paper No. 15-10

JULIE E. STEINER, Western New England University School of Law
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There is a gap in tort recovery for many hazardous release victims. Hazardous spill victims receive different damage compensation based solely upon the type of hazardous substance released, with oil spill victims benefiting from a number of statutory damage recovery mechanisms that victims of other type of hazardous substance releases do not receive. Specifically, those injured by oil spills receive interim payments and recover for their economic loss. Yet, many victims injured by non-oil hazardous spills will incur economic harm but will not receive compensation because of a prohibition on recovery for economic loss absent accompanying physical injury or private property damage. That prohibition on recovery, known as the “pure economic loss rule,� serves as an effective bar to recovery for most spill victims because hazardous releases often damage public natural resources (such as water) rather than private property. This Article articulates normative policy for expanding interim payments and pure economic loss recovery to a larger class of private-party hazardous release than just those injured by oil.

"Private Solutions to Global Crises" Free Download
St. John's Law Review, Forthcoming

GREGORY DAY, Oklahoma State University - Stillwater - Spears School of Business
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Corporations rarely suffer liability for violations of human rights. This is because most abuses occur in developing countries where local authorities cannot, or refuse, to prosecute multinational companies. The courts of western nations also seldom hear human rights cases because disputes arising from foreign events can implicate serious sovereignty and jurisdictional issues. Several international regimes governing human rights exist but similarly lack authority to sanction abuses. In turn, human rights observers assert that, without the threat of liability, little compels transnational companies to adopt socially responsible behaviors.

However, an effective and particularly unlikely means to redress corporate abuses has emerged despite receiving only scant attention. A new generation of contracts and international agreements are using arbitration as a means to enforce human rights. The oddity of this solution is that most popular and scholarly writings consider arbitration to be overwhelmingly biased towards corporations. But, in actuality, the arbitral process overcomes most of the obstacles that have frustrated prior human rights litigants. So if arbitration now offers a remedy to victims in the developing world, this article asks, not only what has changed, but why might arbitration be better able than courts of law to resolve human rights cases?

Supported by interviews with prominent lawyers and practitioners, this article pursues several goals. The first is to bring attention to an emerging legal phenomenon that could alter the nature of transnational tort litigation, human rights enforcement, and international arbitration. In fact, several notable organizations — such as the United Nations, International Labor Organization, and the International Olympic Committee — are parties to, or are considering ratifying, agreements and contracts merging human rights and arbitration. And on a theoretical level, this article finds that arbitration is better structured than courts of law to hear certain disputes, including human rights violations. In turn, private solutions might be the best, or possibly the only, means to redress foreign corporate torts.

"Financially-Constrained Lawyers" Free Download

CLAUDIA M. LANDEO, University of Alberta - Department of Economics
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MAXIM NIKITIN, Higher School of Economics
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Financial constraints reduce the lawyers' ability to file lawsuits and bring cases to trial. As a result, access to justice for true victims, bargaining impasse, and care-taking incentives for potential injurers might be compromised. We present the first cradle-to-grave model of legal disputes involving financially-constrained lawyers, third-party lawyer lending, and asymmetric information. In equilibrium, access to justice is denied to some true victims and bargaining impasse occurs. Counterintuitively, policies that relax lawyers' financial constraints might be welfare reducing if the positive impact on access to justice is weak and the potential injurers are overdeterred.

The appendices for this paper are available at the following URL: http://ssrn.com/abstract=2627894

"Feasibility of a Health Utilities Approach for Quantifying Noneconomic Losses from Personal Injury" Free Download

NATALIE CARVALHO, University of Melbourne
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JOSHUA SALOMON, Harvard University - Department of Population and International Health
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GENEVIEVE GRANT, Monash University - Faculty of Law
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DAVID FISH, Monash University - Faculty of Medicine, Nursing and Health Sciences
DAVID M. STUDDERT, Stanford Law School
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There is wide agreement that existing approaches to valuing noneconomic losses from personal injury lack coherence. We and others have previously noted the considerable potential for “health utility� measurement — an approach developed in health economics for valuing health outcomes in public health and medicine — to bring greater rationality to assessments of injury-related noneconomic loss. However, the feasibility of creating utility measures that are suitable for use in personal injury compensation has not been demonstrated. This study takes that step. We surveyed 4,129 members of the general public to assess people’s preferences for a variety of non-fatal “health states�. The health states were selected to reflect harms commonly seen in claims to transport accident and workers compensation schemes. We then followed established statistical methods for transforming the survey responses into a “severity weight� for each health state. We show how the severity weights can be used to define tiers in a schedule for guiding noneconomic damages determinations. We discuss the strengths and limitations of the approach, and consider implementation challenges.

"Contributory Negligence in the Twenty-First Century: An Empirical Study of Trial Court Decisions" Free Download

JAMES GOUDKAMP, University of Oxford - Faculty of Law
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DONAL NOLAN, University of Oxford - Worcester College
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In this paper we report the results of an empirical study of the practical operation of the contributory negligence doctrine in the courts of England and Wales since the turn of the Twenty-First Century. For the purposes of the study, we analysed 273 trial court decisions. The two central questions that we looked at were (1) how often a defendant’s plea of contributory negligence was successful; and (2) by how much a claimant’s damages were reduced when a finding of contributory negligence was made. We also considered the extent to which the answers to these questions depended on the following variables: (1) the claimant’s age; (2) the claimant’s gender; (3) the type of damage suffered by the claimant; (4) the contextual setting of the claim; and (5) the year of the decision. Our study uncovered a number of important truths about the contemporary operation of the contributory negligence doctrine hidden in this mass of case law. Our findings will be of considerable interest to both scholars and practitioners of private law.

"Rethinking the Great Compromise: What Happens When Large Companies Opt Out of Workers' Compensation?" 

ALISON D. MORANTZ, Stanford University
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The “great compromise� of workers’ compensation, whereby workers relinquished the right to sue their employers in exchange for no-fault insurance coverage for occupational injuries, was one of the great tort reforms of the Twentieth Century. Because participation is usually compulsory, it is difficult to forecast what the real-world effects might be of making workers’ compensation voluntary. However, there is one U.S. state that has always permitted employers to decline workers’ compensation coverage, and in which a significant number of firms (“nonsubscribers�) have chosen to do so: Texas. This is the first empirical study to examine comprehensively the impact of Texas nonsubscription on large, multistate nonsubscribers. I analyze highly granular data from fifteen large, multistate companies that provided their Texas employees with customized occupational injury insurance plans (“voluntary plans�) in lieu of workers’ compensation coverage between 1997 and 2009. As economic theory and common sense would lead one to expect, nonsubscription generates considerable cost savings, reducing total programmatic costs by an average of about 29%. These savings were driven by a drop in the frequency of injury claims – especially more serious claims involving replacement of lost wages – combined with an decline in costs per claim. The drop in cost per claim arises from a fall in both medical and wage-replacement costs. Although the decline in wage-replacement costs is larger in percentage terms, the drop in medical costs is more financially consequential since medical costs constitute such a large share of total costs. The paper finally explores whether several common attributes of workers’ compensation regimes that voluntary plans typically forgo – compensation for permanent partial disabilities, uncapped total benefits, chiropractic coverage, unlimited choice over medical providers, and lengthy injury-reporting windows – are likely to account for the observed cost disparities. Surprisingly, the first three of these features account for little of the observed variation. Although it is much more difficult to isolate the empirical impact of provider choice and reporting windows, my analysis provides some intriguing, albeit highly tentative, evidence that state-level variation in injury-reporting windows could have a significant effect. Overall, my findings suggest the urgent need for policymakers to examine the economic and distributional effects of converting workers’ compensation from a cornerstone of the social safety net into an optional program that co-exists alongside privately-provided forms of occupational injury insurance.

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Torts & Products Liability Law eJournal

ANITA BERNSTEIN
Anita and Stuart Subotnick Professor of Law, Brooklyn Law School

RICHARD A. EPSTEIN
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

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

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W. KIP VISCUSI
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

RICHARD W. WRIGHT
Professor of Law, Illinois Institute of Technology - Chicago-Kent College of Law