TORTS & PRODUCTS LIABILITY LAW eJOURNAL

"The Illusion of Autonomy in Women's Medical Decision-Making" Free Download
Florida State University Law Review, Vol. 42, No. 1, 2015

JAMIE R. ABRAMS, University of Louisville Brandeis School of Law
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This article considers why there is not more conflict between women and their doctors in obstetric decision-making. While patients in every other medical context have complete autonomy to refuse treatment against medical advice, elect high-risk courses of action, and prioritize their own interests above any other decision-making metric, childbirth is viewed anomalously because of the duty to the fetus that the state and the doctor owe at birth. Many feminist scholars have analyzed the complex resolution of these conflicts when they arise, particularly when the state threatens to intervene to override the birthing woman’s autonomy. This article instead considers the far more common scenario when women and their doctors align in the face of great decision-making complexity and uncertainty. What decision-making framework normalizes this doctor-patient alignment and how does this decision-making framework complicate the actualization of autonomy for the women who do not elect this framework? This article concludes that many, if not most, of the four million women who birth in hospital settings attended by physicians align with their doctors by applying a shared decision-making framework that presumptively elects the outcome that minimizes any, even minor, risks to the fetus. While individual patients can certainly elect this approach autonomously, when understood in the context of tort law — in which the actions of “most women? and “most doctors? can become the standard of care itself — this framework is deeply concerning.

This fetal-focused decision-making framework perpetuates an illusion of autonomy because doctors can apply the framework independently. This decision-making model problematically resurrects the ghost of Roe v. Wade’s medical model in which doctors effectuate decision-making autonomy for women. Understood in a tort lens, while this illusion of autonomy might not seem problematic to the individual women who elect this framework, it risks imputing a distorted standard of care to all obstetric cases by creating a primacy that always prioritizes fetal risks over maternal risks, a primacy that explicitly contravenes existing tort standards. Tort law ordinarily governs “unreasonable risks,? whereas this framework elevates any fetal risk to an unreasonable risk and reduces any maternal risk short of death to reasonable. It risks imputing to all women a standard requiring the complete acceptance of medical guidance.

This article concludes that tort law standards should explicitly govern not just the “what? of childbirth outcomes, but the “how? of childbirth decision-making by using decision-making aids to ensure that women’s autonomy is actual and not illusory. Incorporating decision-making aids in the standard of care would remedy the illusion of autonomy by ensuring that “most women’s? decision-making frameworks are not presumptively applied to all women so as to distort tort law and undermine patient autonomy.

"Tort Liability for Ratings of Structured Securities Under English Law" Free Download
University of Oslo Faculty of Law Research Paper No. 2015-06
Special Issue of International and Comparative Corporate Law Journal on Civil Liability of Credit Rating Agencies in the European Union - Selected Legal and Economic Aspects, edited by Gudula Deipenbrock and Mads Andenas, Forthcoming

KERN ALEXANDER, University of Zurich
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This article analyses whether there are legally cognisable claims for misrepresentation and negligence under English law that can be brought by a professional investor against a credit ratings agency for providing AAA ratings to structured finance instruments, such as collateralised debt obligations, when investors later discover that the ratings agency failed to act with due care in issuing the rating.

"Facilitative Judging: Organizational Design in Mass-Multidistrict Litigation" Free Download
64 Emory L.J. 329 (2014).
UGA Legal Studies Research Paper No. 2015-1

JAIME DODGE, University of Georgia
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Faced with the emerging phenomenon of complex litigation — from school desegregation to mass torts — the judiciary of the last century departed from the traditional, purely adjudicative role in favor of managerial judging, in which they actively supervised cases and even became involved in settlement talks. I argue that a similar transition in judicial role is now occurring. I contend that transferee judges are now stepping back from active participation in settlement discussions but playing a far greater role in structuring and administering the litigation. This new judicial role focuses on facilitating the parties’ resolution of the case, whether through settlement or remand for trial. But as transferee judges increasingly focus upon efficiently directing and sequencing litigation, their procedural and structural decisions can often have unanticipated consequences for the parties’ strategic aims. This Article therefore focuses not only upon identifying the emerging best practices for what I term “facilitative judges? in the first days of multidistrict litigation but upon the strategic consequences these practices have for the litigation.

"Disability Discrimination Statutes or Tort Law: Which Provides the Best Means to Ensure an Accessible Environment?" Free Download
Ohio State Law Journal, Vol. 75, No. 6, 2014

LAURA ROTHSTEIN, University of Louisville - Louis D. Brandeis School of Law
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This Article examines the following: Has the physical environment for individuals with mobility impairments improved since 1990? Has it been the result of legislation, regulations, agency guidance, industry action, litigation, or other reasons? What type of litigation has been most effective and why, and what litigation strategies might improve the situation? Does current policy adequately redress and remedy injuries only for specific individuals or does current policy improve the built environment for everyone? Or does it do both? Are there legislative remedies needed to ensure better access? If so, what are the realities of such changes? What else might be done to increase progress on removing architectural barriers?

Before addressing these issues, it should be noted that this Article limits its focus to individuals with mobility impairments (wheelchair users and others with physical mobility limitations). It focuses only on physical spaces and accessible design (and signage) and not on reasonable accommodations and discrimination of other types. The Article discusses all twelve categories of public accommodations and physical places of state and local government agencies. It only addresses architectural issues related to covered entities, not issues such as websites or the provision of services and products.

"The Continued Importance of Common Law Product Liability Ex Delicto – Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd" Free Download
Journal of Contemporary Roman-Dutch Law, Vol. 77, p. 502-512, 2014

J. NEETHLING, University of the Free State - Faculty of Law
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JOHAN POTGIETER, University of South Africa - School of Law
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The aim of this discussion is to emphasise the importance of the continual development of the Aquilian principles of product liability, notwithstanding the radical and wide-ranging changes brought about in this field by the Consumer Protection Act 68 of 2008 (CPA). The ongoing relevance of Aquilian liability in the area of product liability is explicitly underlined by section 2(10) of the CPA itself where it is stated that “[n]o provision of this Act must be interpreted so as to preclude a consumer from exercising any rights afforded in terms of the common law?.

"Encouraging Insurers to Regulate: The Role (If Any) for Tort Law" Free Download

KYLE D. LOGUE, University of Michigan Law School
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Insurance companies are financially responsible for a substantial portion of the losses associated with risky activities in the economy. The more insurers can lower the risks posed by their insureds, the more competitively they can price their policies, and the more customers they can attract. Thus, competition forces insurers to be private regulators of risk. To that end, insurers deploy a range of techniques to encourage their insureds to reduce the risks of their insured activities, from charging experience-rated premiums to giving special premium discounts to insureds who make specific behavioral changes designed to reduce risk. Somewhat paradoxically, however, tort law discourages insurers from engaging in the direct regulation of their insureds’ behavior. Under longstanding tort principles, if an insurer “undertakes? to provide serious risk-reduction services to an insured, the insurer can be found to have a duty of reasonable care and, should that duty be breached, held liable for any harms caused to third parties. This application of tort principles to insurance companies could be contributing to the moral hazard problem often associated with insurance — the tendency of insurance to cause risk to increase rather than decrease. This Article explores this problem and analyzes a number of ways to encourage insurers to regulate — from insurer-specific Good Samaritan statutes (which we might call a “carrot?) to the expansion of tort principles to create an affirmative duty on the part of insurers to regulate (which would definitely be a “stick?). What combination of carrots and sticks produces the optimal insurer incentives to regulate their insureds’ behavior? That is the question the Article addresses.

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About this eJournal

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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Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
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Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
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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