Table of Contents

The Evolution of the Law of Torts in China: The Growth of a Liability System

Wei Zhang, Singapore Management University

Tortifying Retaliation: Protected Activity at the Intersection of Fault, Duty, and Causation

Deborah L. Brake, University of Pittsburgh - School of Law

Expert Testimony in Nineteenth Century Malapraxis Actions

Michael Ashley Stein, William & Mary Law School, Harvard Law School
Christopher P. Guzelian, Thomas Jefferson School of Law
Kristina M Guzelian, Thomas Jefferson School of Law

New Tort of Intrusion Upon Seclusion and Electronic Health Records

Omar Ha-Redeye, Fleet Street Law

Informed Consent: Using Behavioral Science to Make It Easier to Accept…And Easier to Nullify It at the Court?

Michael P. Chatzipanagiotis, Μarinos-Katsas-Liaskos & Associates

Facilitating Medical Product Development Through Voluntary Data Sharing: A Look at the Legal Issues

Aliza Y. Glasner, Georgetown University - The O'Neill Institute for National and Global Health Law
Erin E. Wilhelm, Georgetown University Medical Center
Lawrence O. Gostin, Georgetown University - Law Center - O'Neill Institute for National and Global Health Law
Ira Shoulson, Georgetown University

Is Copyright Infringement a Strict Liability Tort?

Patrick Russell Goold, Illinois Institute of Technology - Chicago-Kent College of Law

Lacunae and Litigants: A Study of Negligence Cases in the High Court of Australia in the First Decade of the 21st Century and Beyond

Anita Stuhmcke, University of Technology Sydney, Faculty of Law
Pam Stewart, University of Technology Sydney, Faculty of Law


TORTS & PRODUCTS LIABILITY LAW eJOURNAL

"The Evolution of the Law of Torts in China: The Growth of a Liability System" Free Download
10th annual conference of Asian Law and Economics Association, National University of Taiwan, Taiwan, June 2014
Singapore Management University School of Law Research Paper No. 41/2014

WEI ZHANG, Singapore Management University
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During the “Reform and Opening-up? years, tort disputes have become one of the main types of cases litigated in Chinese courts, and tort law has been playing a significant role in carving out the incentives of businesses and individuals in China.

Since the formal legal rules on torts came into being in 1986, a large number of changes have occurred in the law of torts. The transformation of the rules, however, has eluded previous introductory works on Chinese tort law written in English. This paper is devoted to delineating these changes, which present the growth of a liability system moving predominantly in favor of tort victims. Unlike most existing English literature on Chinese tort law that survey primarily the major civil statutes, this paper places commensurate emphasis on the rules dealing with tort liabilities embedded in the administrative laws and regulations as well as the judicial interpretations.

In addition, this paper also makes a rough assessment of the efficiency implications of the evolution of tort law in China. Given the exceptionally low point where the increment of victim protection in tort law started, the change of rules in China is, by and large, moving in the direction of cost internalization as required by efficiency.

However, the potential improvement in efficiency is perhaps a by product of the development of tort law in China. The motivation behind the rule change is more likely to be loss redistribution rather than efficiency upgrade. In light of the policy implementing orientation of the Chinese legal system and the collectivistic propensity rooted in the law of torts, political and institutional perspectives might bring us better insights into the driving force of change of law in China.

"Tortifying Retaliation: Protected Activity at the Intersection of Fault, Duty, and Causation" Free Download
Ohio State Law Journal, Vol. 75, p. 1371, 2014
U. of Pittsburgh Legal Studies Research Paper No. 2014-43

DEBORAH L. BRAKE, University of Pittsburgh - School of Law
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In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court broke its string of plaintiff victories in the eight retaliation cases it has decided since 2005. In its 2013 decision in that case, the Court rejected a mixed motive framework for Title VII’s retaliation provision, a part of the statute that Congress did not amend in 1991 when it adopted the motivating factor standard for proving discrimination under Title VII. For help construing what “because of? means in the retaliation claim, the Court looked to tort law, which it read as requiring plaintiffs to prove but-for causation to establish causation in fact. In doing so, the Court extended its turn to tort law in deciding statutory employment discrimination cases into the field of retaliation. The Court’s tort analogy in Nassar seemingly invites courts to explore additional tort-inspired limits on recovery. Even before Nassar, however, lower courts had crafted doctrines sounding in tort to limit what counts as protected activity under the statute. Two of these doctrines bear a strong resemblance to tort law. First, the Title VII reasonable belief doctrine draws on tort-inspired concepts of plaintiff fault to limit recovery for retaliation. Second, lower courts have recently restricted the class of persons protected by the retaliation claim, effectively injecting a tort-like no-duty rule into the employer’s obligation toward employees who have internal anti-discrimination responsibilities. This Article uses the lens of tort law to explain and critique these retaliation doctrines, with an eye toward pressing the tort analogy in a new direction, one that is more deeply grounded in employer fault.

"Expert Testimony in Nineteenth Century Malapraxis Actions" Free Download
American Journal of Legal History, Vol. 55, p. 284, 2015

MICHAEL ASHLEY STEIN, William & Mary Law School, Harvard Law School
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CHRISTOPHER P. GUZELIAN, Thomas Jefferson School of Law
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KRISTINA M GUZELIAN, Thomas Jefferson School of Law
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Medical negligence evolved as an independent tort during the nineteenth century. Despite pervasive professional concerns about its ethicality, paid medical expert testimony became routine. In a manner strikingly similar to modern commentary, prominent jurists disparaged testimony for commonly relating anecdotal experience rather than scientifically derived knowledge. Also notable among cases was a dominant tendency to rule for medical practitioners when both parties presented expert testimony. Conversely, suits resolved in favour of whichever party unilaterally retained a testifying expert.

"New Tort of Intrusion Upon Seclusion and Electronic Health Records" Free Download
Lorman Educational Services Live Seminar, Toronto, ON, December 4, 2014

OMAR HA-REDEYE, Fleet Street Law
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The new tort of intrusion upon seclusion has revamped the area of privacy law in Canada. In addition to creating a private tort action for privacy invasions, the Jones v. Tsige decision has created entirely different risk management concerns for health institutions, who often possess and maintain some of the most sensitive information in society. The modest damage awards in such privacy actions initially did not appear to make them a feasible cause of action when standing alone. However, several recent class actions which include this new tort have demonstrated that not only can intrusion upon seclusion be effectively used in litigation, but that these claims can have significant financial consequences. Health administrators and managers should ensure proper measures are employed to minimize the risk to their institutions.

"Informed Consent: Using Behavioral Science to Make It Easier to Accept…And Easier to Nullify It at the Court?" Free Download
Proceedings of the 65th International Astronautical Congress, Toronto, 2014

MICHAEL P. CHATZIPANAGIOTIS, Μarinos-Katsas-Liaskos & Associates
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This paper is about perceived safety and its impact on liability and insurance. In the framework of private commercial human spaceflights, spaceflight participants (SFPs) are required to sign an informed consent to fly. Operators have to inform SFPs both orally and in writing comprehensively on the risks of space flight, so that the latter assume the risk of flying and the former are exonerated from potential liability. Behavioral science has proven that people’s risk perception depends on various factors. Considering these factors when providing information to SFPs can facilitate their acceptance of the risk. The paper consists of two parts. First, it explains the factors that influence risk perception and suggests methods to reduce the perceived risk of SFPs. Potential SFPs will find spaceflight less risky, if they: associate flying with vivid positive images and feelings; consider spaceflight as a pioneering activity with significant benefits for society and themselves; are convinced that they participate voluntarily in the activity and can change their mind any time before the flight at a reasonable cost; are given the chance to familiarize themselves with the flight through training and simulation; do not doubt on the trustworthiness and sincerity of the operator and its employees; private spaceflights are exposed to positive media coverage. Second, this paper explores the impact of using such methods on the validity of the informed consent, i.e. whether such methods could be deemed a form of fraud or misrepresentation. This affects both the operator’s liability, because only a valid informed consent can exclude liability, and its insurance coverage, since insurers do not cover liability for fraudulent acts. It is submitted that most of the times such methods will be a legal form of marketing, upon condition that operators provide all relevant information to SFPs in a written and legible form, give them adequate time to think on the risks, and enable them to withdraw from the contract at any time before the flight with a partial ticket refund.

"Facilitating Medical Product Development Through Voluntary Data Sharing: A Look at the Legal Issues" Free Download

ALIZA Y. GLASNER, Georgetown University - The O'Neill Institute for National and Global Health Law
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ERIN E. WILHELM, Georgetown University Medical Center
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LAWRENCE O. GOSTIN, Georgetown University - Law Center - O'Neill Institute for National and Global Health Law
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IRA SHOULSON, Georgetown University
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The generation, dissemination, and sharing of research data are key ingredients in contributing to scientific progress and the public good. Data sharing has been encouraged to facilitate open science within the clinical research enterprise, improve the development of drugs and devices, and benefit public health. To date, the subject has received considerable attention in the media and scientific literature, however focused mainly on philosophical arguments. Of the empirical research that exists, much of it has focused on data sharing among academic investigators in the field of life science, including biomedical research, medicine, and genetics. A number of commentaries and editorials have dealt with the ethical repercussions when researchers choose not to share data; others have discussed real or perceived legal barriers to data sharing. These barriers include (1) compromised intellectual property rights and unfair advantages to competitors, (2) risk of increased product liability, (3) issues of collusion under antitrust laws, and (4) risks to research participant privacy.

This report examines the legal issues that may pose barriers to data sharing. The report provides a helpful guide to those in the biomedical community who wish to engage in data sharing. In each section, the authors provide an overview of the legal issue, including the statutes and other background, and suggest approaches for surmounting legal issues.

"Is Copyright Infringement a Strict Liability Tort?" Free Download
Berkeley Technology Law Journal, 2015 Forthcoming

PATRICK RUSSELL GOOLD, Illinois Institute of Technology - Chicago-Kent College of Law
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Scholars and lawmakers routinely refer to copyright infringement as a strict liability tort. This adoption of strict liability has long been criticized as immoral, inefficient and inconsistent with usual tort doctrine. However, this article questions whether copyright infringement really is based upon a strict liability rule. It advances the thesis that copyright infringement in the U.S.A. is a fault based tort, closely related to the tort of negligence. Using both doctrinal and economic methods, this article explicates the role that fault plays in copyright infringement. Doing so not only demonstrates that copyright’s liability rule is more normatively defensible than previously appreciated, but also provides a unique tort perspective on the nature of the fair use doctrine. By seriously engaging with the analytic question of whether liability for copyright infringement is strict or not, we highlight how the fair use analysis blends and confuses two separate issues: did the defendant cause the plaintiff harm, and, was that harm justifiable. Therefore, while no substantive changes need be made to copyright's liability rule, the article concludes that judges ought to restructure the fair use analysis in order to keep these concepts distinct from one another.

"Lacunae and Litigants: A Study of Negligence Cases in the High Court of Australia in the First Decade of the 21st Century and Beyond" Free Download
Melbourne University Law Review, Vol. 38, No. 1, 2014

ANITA STUHMCKE, University of Technology Sydney, Faculty of Law
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PAM STEWART, University of Technology Sydney, Faculty of Law
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This article examines a snapshot in time of appeals in negligence cases to the High Court during the first 11 years of the 21st century. In total, 78 negligence cases decided by the High Court during this period are analysed. Cases granted leave to appeal to the High Court are exceptional, raising novel or difficult issues of law and depend upon an injured plaintiff ’s practical and financial ability to access legal services. This article analyses the gender and age of litigants, and the accident type in these appeals in order to determine what, if anything, can be learnt about tort litigation patterns. This study found that more men litigated in High Court appeals in the period under study than any other group. When analysed against the background of existing evidence as to: the nature and type of injuries suffered in Australia which require hospitalisation; who is injured; who litigates at first instance; who appeals; and the nature of negligence cases, it becomes clear that adult male plaintiffs appear more often in tort law than women and children due to more men being injured as a group and female and child injuries happening more often in no-fault contexts. The data also indicate that plaintiffs are far less likely to succeed in negligence appeals to the High Court than defendants. It is argued that this emphasis upon personal responsibility in the tort of negligence seems set to continue in light of the statutory tort law reforms which took place across Australia in 2002.

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Advisory Board

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

MARK F. GRADY
Professor of Law, University of California, Los Angeles (UCLA) - School of Law

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

ROBERT L. RABIN
A. Calder Mackay Professor of Law, Stanford Law School

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