"The Artificial Collective-Action Problem in Lawsuits Against Insured Defendants" Free Download
Research Handbook in the Law & Economics of Insurance (Edw. Elgar 2015)

RICHARD SQUIRE, Fordham University School of Law

When negotiating to settle tort suits, defendants and their liability insurers often face a collective-action problem. The problem arises when the trial outcome is uncertain and the potential damages exceed the insurance policy limit. Settling such a lawsuit replaces an uncertain potential damages award with a smaller, certain settlement payment. As a result, settlement causes a larger proportion of the overall liability to fall within the policy limit and hence be the insurer’s responsibility. To prevent this liability shift, the insurer might reject some settlement demands that an uninsured defendant would have accepted, forcing unnecessary trials. To solve this problem, courts (and some insurance policies) place settlement duties on insurers. But lawsuits to enforce these duties generate litigation costs, and judicial errors can encourage settlements that overcompensate plaintiffs. An alternative solution would be to change the settlement approach. Currently, parties negotiate toward a single, collectively binding settlement amount. Instead, the insurer and policyholder could each bargain separately for a release of the plaintiff’s right to collect those damages that, if awarded at trial, would be that party’s responsibility. Under this “segmented? approach, the collective-action problem disappears, as does the need for costly settlement duties. The benefits would be greatest in lawsuits against corporation defendants, which often have several excess insurers as well as a primary insurer. Why parties continue to follow a settlement method that produces an avoidable collective-action problem is an open question in insurance law.

"No-Fault Compensation for Medical Injury: Principles, Practice and Prospects for Reform" Free Download
to appear in P. Ferguson and G. Laurie (eds), Inspiring a Medico-Legal Revolution: Essays in Honour of Sheila McLean, (Aldershot: Ashgate) Forthcoming

ANNE-MAREE FARRELL, Monash University - Faculty of Law

This paper examines the principles and practice that should underline no-fault compensation schemes for medical injury. It draws on a critical examination of the McLean Report, which was commissioned by the Scottish government to examine whether such a scheme should be established in Scotland. Drawing on a restorative justice model, I argue that a principled approach a no-fault scheme for medical injury requires a redress package that is responsive to what patients say they want as a result of suffering harm through medical treatment. This should involve paying adequate financial compensation; providing appropriate apologies and explanations; and facilitating professional accountability and lesson learning in order to enhance patient safety and improve healthcare outcomes. Where this is not possible within the no-fault scheme itself, then at the very least a more ‘joined-up’ approach needs to be developed, which links the scheme to independent complaints procedures and professional disciplinary bodies. Ensuring that this redress package is provided offers the best chance of ensuring patient satisfaction with the scheme in the long term. Even if such reforms are implemented, the question remains as to whether aspiration will ever match reality. Based on a review of current schemes for medical injury, it is suggested that the full implementation of this type of redress package is likely to remain elusive in practice.

"Professional Speech" Free Download

CLAUDIA E. HAUPT, Columbia University - Law School

Professionals speak in the course of exercising their profession. Yet, the State regulates the professions all the time. What is the permissible scope of regulation of the professions as distinct from regulation of professional speech? This Article provides a comprehensive account of the doctrinal and theoretical basis of professional speech and its application to controversial First Amendment questions.

First Amendment protection for professional speech rests on distinctive theoretical justifications and the key to understanding professional speech lies in understanding the character of the learned professions. This Article suggests that the professions be thought of as knowledge communities. Conceptualizing the professions as knowledge communities not only informs the justifications for First Amendment protection but also the limits of that protection, the permissibility of regulation of the professions, and the imposition and extent of tort liability for professional malpractice.

"A Seed on Barren Ground? The ALRC's Recommendation for a Statutory Privacy Tort" Free Download
(2014) 42 Australian Business Law Review 403-405

NORMANN WITZLEB, Monash University - Faculty of Law

In September 2014, the Australian Law Reform Commission recommended the enactment of a statutory privacy tort to give victims of serious invasions of privacy a civil action for redress. This note considers the main aspects of the ALRC proposal and concludes that statutory law reform is necessary but unlikely under the current federal government.

"A Constitutional Balancing in Need of Adjustment: On Defamation, Breaches of Confidentiality, and the Church" 
12 First Amendment Law Review 325-84 (2013)

MARK STRASSER, Capital University - Law School

Religious disputes arise in a variety of contexts and the Court has interpreted the First Amendment to preclude the state from adjudicating certain kinds of disagreements, e.g., about which interpretation correctly captures religious doctrine. However, the Court has not addressed whether or under what conditions a congregant can sue a clergy member for defamation, and the lower courts have taken a variety of approaches to such claims. This article addresses some of the differing approaches taken when individuals seek damages from religious authorities for defamation or the publication of private facts.


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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Advisory Board

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