Table of Contents

When Should Physicians Be Liable for Innovation?

Anna B. Laakmann, Lewis & Clark Law School

Pricing Lives for Corporate Risk Decisions

W. Kip Viscusi, Vanderbilt University - Law School, National Bureau of Economic Research (NBER), Vanderbilt University - Department of Economics, Vanderbilt University - Owen Graduate School of Management, Vanderbilt University - Strategy and Business Economics

War for the Wrong Reasons: Lessons from Law

Gabriella Blum, Harvard Law School
John C. P. Goldberg, Harvard Law School

A Relevant Intent Theory of Patents

Saurabh Vishnubhakat, Duke University - School of Law, Duke University - Institute for Genome Sciences & Policy, United States Patent and Trademark Office

The Regulatory and Liability Implications of Nano-Scale Drug Delivery in the Human Body

Shane P McNamee, Chair for Consumer Law, University of Bayreuth

Introduction: Philosophical Foundations of the Law of Torts

John Oberdiek, Rutgers, The State University of New Jersey - School of Law - Camden

Rethinking Canadian Defamation Law as Applied to Corporate Plaintiffs

Hilary Young, University of New Brunswick - Fredericton - Faculty of Law

'May the Odds Be Ever in Your Favor': Lotteries in Law

Ronen Perry, University of Haifa - Faculty of Law
Tal Zarsky, University of Haifa - Faculty of Law


TORTS & PRODUCTS LIABILITY LAW eJOURNAL

"When Should Physicians Be Liable for Innovation?" Free Download
Cardozo Law Review, Vol. 36, 2015

ANNA B. LAAKMANN, Lewis & Clark Law School
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Uncertainty pervades medicine. It is particularly acute when a physician deliberately deviates from generally accepted practices in an attempt to improve patient care. Unlike innovative drug and device manufacturers, treating physicians are not subject to mandatory ex ante public regulation. The question of how to constrain physician behavior thus largely falls to the tort system. Innovation by definition involves a departure from custom, so adherence to customary standards of care essentially requires physicians to solely bear the liability costs of innovative treatment. This regime of course protects patients from unnecessary risks associated with untested therapies, but also may unduly deter physicians from tailoring individualized treatment plans that address patients’ particular needs and preferences.

There are several possible alternatives to regulating physician innovation, ranging from the highly paternalistic to the highly libertarian. The public regulatory regime could be revised to require that all untested medical interventions undergo formal testing before physicians are permitted to use them in the treatment setting. But turning an individual from a patient in a treatment setting into a subject in a research setting fundamentally transforms her role in the medical decision-making process and the goals of the intervention. At the other extreme, we could adopt a contract-based model of physician liability that allows for more robust and coherent adherence to principles of patient autonomy. But physicians’ superior knowledge and patient vulnerabilities caution against treating a medical encounter as an arms-length negotiation.

This Article proposes a fiduciary framework to regulate physician innovation under conditions of endogenous uncertainty. The proposed approach could be described as a “libertarian paternalism? model of medical decision-making. It mandates close scrutiny of the decision-making process but deference to the substance of medical decisions. Under this framework, the physician should be held liable for failing to act in the patient’s best interests, taking into account the patient’s unique clinical condition and value preferences. Within these constraints, however, patients should have the freedom to choose – and assume the associated risks and uncertainties – from among a range of clinically acceptable alternatives. Properly applied, fiduciary principles can strike a desirable balance that respects patient autonomy, deters unreasonable risks, and encourages beneficial innovation.

"Pricing Lives for Corporate Risk Decisions" Free Download
Vanderbilt Law Review, May 2015, Forthcoming
Vanderbilt Law and Economics Research Paper No. 14-26

W. KIP VISCUSI, Vanderbilt University - Law School, National Bureau of Economic Research (NBER), Vanderbilt University - Department of Economics, Vanderbilt University - Owen Graduate School of Management, Vanderbilt University - Strategy and Business Economics
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The 2014 GM ignition switch recall highlighted the inadequacies of the company’s safety culture and the shortcomings of regulatory sanctions. The company’s inattention to systematic thinking about product safety can be traced to the hostile treatment of corporate risk analyses by the courts. This Article proposes that companies place a greater value on lives at risk than they have in previous risk analyses and that they be given legal protections for product risk analyses. Companies’ valuations of fatality risks and regulatory penalties have priced lives too low. The guidance provided by the value of a statistical life, which is currently $9.1 million for transportation policies, establishes an appropriate price for lives from the standpoint of corporate safety decisions, regulatory sanctions, and punitive damages. The valuation of defect-related deaths may, however, be even greater than that of preventing fatalities through safety improvements so that the value of a statistical life may establish a floor for the appropriate penalties for safety-related defects.

"War for the Wrong Reasons: Lessons from Law" Free Download
11 Journal of Moral Philosophy 454 (2014)

GABRIELLA BLUM, Harvard Law School
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JOHN C. P. GOLDBERG, Harvard Law School
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In Ethics for Enemies, Frances Kamm argues that, under certain conditions, it is morally permissible for a state to launch a war for opportunistic reasons. We consider how law might shed light on Kamm’s argument. Part I addresses the application of criminal and tort law to individual acts of violence analogous to the acts of war analyzed by Kamm. It primarily argues that these bodies of law rely on a framework for determining legal permissibility that runs counter to, and perhaps demonstrates weaknesses in, Kamm’s framework for assessing moral permissibility. Part II considers the law of war. It maintains that, although modern law permits certain opportunistic acts of war, the law does so on terms that cut against Kamm’s claim as to their moral permissibility.

"A Relevant Intent Theory of Patents" Free Download

SAURABH VISHNUBHAKAT, Duke University - School of Law, Duke University - Institute for Genome Sciences & Policy, United States Patent and Trademark Office
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This article challenges the dogma of U.S. patent law that direct infringement is a strict liability tort. Impermissibly practicing a patented invention does create liability even if the infringer did not intend to infringe or know about the patent. The consensus is that this is a form of strict liability. The flaw in the consensus is that it proves too little, as the same is true of intentional torts: intent to commit the tort is unnecessary, and ignorance of the legal right is no excuse. What is relevant is intent to perform the action that the law deems tortious. So for the tort of patent infringement, the question is whether liability should require that the infringer intended to perform the actions that constitute infringement. The patent statute and the few cases that have broached the question suggest the answer is yes — relevant intent should be necessary. However, patent law currently takes no position at all on relevant intent. The strict liability view is merely a default. This article fills that gap by applying ordinary tort principles to patents based on a theory of relevant intent. The proposed framework offers a powerful policy lever for important issues implicating the notice function of patents, including divided infringement, claim construction, and inherency. This framework also mitigates the effects of patent assertion on risk allocation in the patent system by differentiating among makers, sellers, and users of patented innovation — a distinction that is economically important but has no principled basis in patent doctrine.

"The Regulatory and Liability Implications of Nano-Scale Drug Delivery in the Human Body" Free Download
Nanotechnology Law & Business, Volume 11, Issue 1, 2014

SHANE P MCNAMEE, Chair for Consumer Law, University of Bayreuth
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In this article, researcher Shane McNamee addresses the practical, legal, and regulatory implications of nanoscale drug delivery. Some of the technical and legal challenges that impact current drug delivery methods (e.g., ingestion and injection) also apply to new nanoscale methods. But, the scale and scope of application in nanotechnologies raises additional issues. This article first analyzes the general novel characteristics and health risks of nanoparticles, as well as specific issues of insertion, removal, and informed consent. Then the article considers how the actual in-vivo use of nanoscale drug delivery could practically affect legal liability. Finally, this article takes a broader look at the regulation of nanotechnology in general, how this might apply to nanoscale drug delivery, and what steps may need to be taken to further regulate this area.

"Introduction: Philosophical Foundations of the Law of Torts" Free Download
Philosophical Foundations of the Law of Torts, John Oberdiek (ed.), Oxford: Oxford University Press 2014

JOHN OBERDIEK, Rutgers, The State University of New Jersey - School of Law - Camden
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This Introduction to Philosophical Foundations of the Law of Torts (John Oberdiek, ed., Oxford University Press, 2014) provides a brief history of the discipline of tort theory, maps out current debates in the field, and introduces the volume's nineteen chapters. Along the way, this Introduction addresses many of the core problems in the philosophy of tort law, draws connections between them.

"Rethinking Canadian Defamation Law as Applied to Corporate Plaintiffs" Free Download
Hilary Young, “Rethinking Canadian Defamation Law as Applied to Corporate Plaintiffs? (2013) 46 UBC L Rev 529.

HILARY YOUNG, University of New Brunswick - Fredericton - Faculty of Law
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Corporations may sue in defamation in much the same way as individuals. Although they may not recover for pain and suffering, the plaintiff-friendly features of the law apply equally to corporations and individuals. Specifically, a plaintiff need only prove that the defendant published something about the plaintiff that would make an ordinary person think less of the plaintiff. The tort is essentially one of strict liability (subject to the responsible communication defence). Since falsity is presumed, the defendant must disprove falsity or establish another defence. Damages are also presumed.

These features of defamation law have been widely criticized, but are at least arguably justified by the important dignitary interest in reputation. Corporations, however, have no dignitary interest in their reputations. It is therefore much harder to justify defamation law as applied to corporations.

Additional reasons why defamation law overprotects corporate reputation include the importance of speech about corporations, the chilling effect of the law on such speech, the availability of other legal and extra-legal means of protecting corporate reputation and the ineffectiveness of defamation law at rehabilitating reputation or compensating for its loss.

The article therefore argues for significant changes to defamation law as applied to corporate plaintiffs. Eliminating the presumptions of falsity and damages would be welcome, but the article ultimately argues for an approach like Australia’s, whereby corporations are denied standing to bring defamation actions at all.

"'May the Odds Be Ever in Your Favor': Lotteries in Law" Free Download

RONEN PERRY, University of Haifa - Faculty of Law
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TAL ZARSKY, University of Haifa - Faculty of Law
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Throughout history, lotteries have been used in numerous legal contexts. However, legal theorists have rarely discussed the role of randomization in law, and have never done so systematically and comprehensively. Against this backdrop, the Article has three underlying goals. First, it fills the aforementioned gap by providing a theoretical framework for assessing lotteries’ role in legal resource allocation. It innovatively integrates fairness and efficiency concerns, critically evaluating and applying insights from various disciplines, including economics, philosophy, political science, psychology, and theology. This multidisciplinary framework — of unprecedented breadth and complexity — provides lawyers and policymakers with a powerful analytical tool for assessing the possible use of random allocation schemes. Second, the Article recognizes the importance and highlights the pervasiveness of lotteries in law. It does so by analyzing and appraising the historical and present role of lotteries in numerous legal contexts through the theoretical prism. It also advocates a cautious expansion of the use of lotteries in other contexts, a notion that runs counter to the basic intuition that the law must be committed to reason and certainty. Third, the Article substantiates a jurisprudentially provocative thesis: While random-based schemes can be and are employed in many settings, there is no consistent set of justifications for all applications. The rationalization is highly varied and context-specific.

To construct and apply the theoretical framework, the Article uses the fundamental distinction between fairness and efficiency as a cornerstone. Part I unveils the fairness of random selection as a matter of common perceptions and normative commitments. It starts by showing that lotteries are often perceived as fair allocation methods, especially compared to the alternatives (“positive fairness?). Part I then examines whether the use of lotteries can be justified on the ground of fairness (“normative fairness?). It discusses the outmoded theological justification which associates random selection with divine intervention, the egalitarian argument and its limits, the fairness-related advantages and disadvantages of processual detachment from human agency, and fairness vis-à-vis people who do not take part in the primary allocation, be they allocation candidates or allocators.

Part II addresses the advantages and possible drawbacks of random selection in terms of efficiency, compared to conventional alternatives: auctions, need- and merit-based allocations, and queues. It first examines recipients’ ability, ex post, to maximize the utility of the allocated resource, as well as ex post psychological effects of the allocation method. This Part then analyzes ex ante changes in potential recipients’ behavior created by random allocations, also noting the outcomes of the so called “insulation? from power-structures facilitated by random processes. Next, Part II examines the relative advantages and shortcomings of random selection in terms of administrative costs. Finally, it discusses possible effects of random allocations on society at large, such as political economy dynamics, and the potential impact on information flow, public knowledge, and taxation policy.

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LSN SUBJECT MATTER EJOURNALS

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Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

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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