TORTS & PRODUCTS LIABILITY LAW eJOURNAL

"Enhanced Damages for Patent Infringement: A Normative Approach" Free Download
Review of Litigation, Forthcoming
Boston Univ. School of Law, Law and Economics Research Paper No. 16-31

KEITH N. HYLTON, Boston University - School of Law
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In Halo Electronics v. Pulse Electronics the Supreme Court granted greater discretion to lower courts to enhance damages for patent infringement. This paper takes a normative approach to patent infringement damages. Its underlying premise is that the goal of a damages regime should be to maximize society’s welfare. Patent damages should therefore balance society’s interest in encouraging innovation against the need to regulate infringement incentives. Although the analysis here is mostly normative and draws heavily on the economic theory of penalties, the aim of this paper is to provide a set of practical guidelines courts can follow in explaining, justifying, and developing rules to structure the discretion that Halo has returned to them.

"The Mystery of Mutual Insurers in Lawyers Professional Liability Insurance" Free Download
U of Penn, Inst for Law & Econ Research Paper No. 16-17

TOM BAKER, University of Pennsylvania Law School
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RICK SWEDLOFF, Rutgers Law School
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Large law firms in the U.S. rely heavily on lawyers-only mutual insurers to manage their malpractice risks. Yet, under classic economic theory, mutual insurers should not be able to compete with stock insurers, at least absent a market failure. Mutuals have less access to capital and thus less ability to spread risk. Also, mutuals demand much more law firm partner time. Our research into the lawyers’ professional liability (LPL) insurance market makes three contributions. First, while we find evidence consistent with the traditional explanations for mutual insurance — market failures related to moral hazard and adverse selection and a problem with long-term contracting, we also provide a new autonomy explanation. Many lawyers, and presumably other professionals, perceive that mutual insurance promotes professional independence in the face of the social control imposed by liability and insurance. Second, we crack open the windows on a secretive aspect of law firm risk management, revealing the variable, hybrid nature of LPL mutual insurance arrangements. Third, we reframe the scholarly understanding of the relationship between organizational forms. The corporate law and insurance literature typically views mutual and stock insurers solely as competitors. We show that they also play complementary roles, as all of these mutual insurers engage extensively with commercial insurers through reinsurance or excess insurance. At least in this context, mutual insurance is not an alternative to stock insurance, but rather a way to manage access to the powerful risk distributing potential of stock insurance. Indeed, the availability of mutual insurance may favorably affect the behavior of stock insurance companies even outside of their relationships with the mutual insurers. Accordingly, our research suggests that lawyers’ participation in their mutual insurers provides benefits not only to their firms, but also to the legal profession.

"Investigating the Reasons Behind the Increase in Medical Negligence Claims" Free Download
Potchefstroom Electronic Law Journal, Vol. 19, 2016

LETITIA PIENAAR, University of South Africa
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Medical negligence claims have increased significantly over the last number of years. The trend is still ongoing and concerns have been raised about the impact of this increase on the medical industry. Medical practitioners are increasingly practising defensive medicine in an attempt to limit the risk of medical negligence claims being instituted against them. Medical negligence claims are instituted for a number of reasons, such as lack of communication between doctor and patient. Birth-related claims are instituted most frequently.

This contribution investigates the possible reasons behind the increase in both the value and the number of medical negligence claims. The focus falls especially on the increase in the number of claims. The contribution considers a decline in the level of professionalism amongst medical practitioners as one reason behind the increase, followed by the possibility that lawyers may be responsible for the increase in claims. In addition, it is pointed out that patients are simply becoming more aware of their rights.

The contribution further focuses on patient-centred legislation and pronouncements by courts that bolster patient autonomy and place patients in an ever stronger position to enforce their rights. Relevant provisions of the Constitution, the National Health Act, the Consumer Protection Act and the Children's Act are singled out for discussion, followed by a brief discussion of case law in line with themes identified in the aforementioned legislation.

The contribution submits that the increase in medical negligence claims should not come as a surprise, considering the high regard that our courts had for patient autonomy even before the enactment of the 1996 Constitution. The Constitution and the above legislation now contain specific rights that patients, including child patients, can enforce. The best interests of the child principle embodied in both the Constitution and the Children's Act is very prominent in the medical context and impacts on the medical practitioner's responsibilities towards a child patient. The Constitutional Court relied on this principle in its recent judgment to the effect that claims for wrongful life (brought by a child with a disability), may possibly have a place in our law. If the claim for wrongful life is eventually confirmed, we will no doubt see a further increase in medical negligence claims.

Patient-centered legislation and pronouncements by our courts that constantly reiterate the importance of patient rights arguably create very fertile ground for medical negligence claims. These are, as the contribution concludes, merely contributing factors to the phenomenon under investigation.

"Causal Responsibility and Patent Infringement" Free Download
70 Vanderbilt Law Review (2017 Forthcoming)

DMITRY KARSHTEDT, George Washington University - Law School
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It is not uncommon for multiple parties in the stream of commerce — manufacturers, distributors, end users — to be involved in the infringement of a single patent. Yet courts have struggled mightily with such scenarios. Attempts to deal with them — particularly when plaintiffs have asserted so-called method patents, which cover specific “steps,? or actions — have produced results that defy commonsense notions of legal responsibility. In method patent cases, the patentee must clear much higher legal hurdles to prevail against a manufacturer who designed and supplied an infringing device than against an end user who simply bought that device and operated it as intended. The manufacturer can lose only upon proof of fault, while the user is subject to strict liability — a result that seems to be completely backwards because the manufacturer is clearly the more responsible party. Even greater difficulties arise when the manufacturer performs some steps of a method patent and the user performs the others, giving rise to a so-called “divided infringement? problem. One such case, Akamai v. Limelight, has been in litigation for over ten years and generated multiple appellate opinions. Although, on remand from the Supreme Court, the Court of Appeals for the Federal Circuit finally resolved Akamai in a fact-specific fashion, no comprehensive solution to the divided infringement problem is in sight.

I explain that these problems persist because patent law formalistically clings to what I term the “performer/non-performer distinction,? which holds that physical performance of an act is the linchpin of legal accountability. I then contend that they can be solved by reading the Patent Act in view of the principle of causal responsibility, which pervades the law and rests on a firm philosophical foundation. Simply put, this principle holds that one is responsible for the actions of others that one has caused, leading to the legal effect of imputing the act of the “causee? (in patent cases, often the user) to the causer (e.g., the manufacturer). I draw on examples from criminal law and tort law to elucidate this principle, and demonstrate its consistency with the Patent Act. I also maintain that application of causal responsibility in patent law would lead to three practical, and sensible, results. First, doing so would effectively lower the mens rea hurdles needed to establish the liability of manufacturers who supply devices configured so that their only intended use by a passive customer results in the performance of steps of some method patent. Second, it would provide a path for resolving the vexing problem of divided infringement exemplified by Akamai. Third, the proposed approach may in some cases help to shift the burden of ensuring compliance with existing patents from end users to manufacturers, which is as it should be.

"Fast & Furious: The Misregulation of Driverless Cars" Free Download

TRACY HRESKO PEARL, Texas Tech University School of Law
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The United States is on the cusp of a revolution in transportation. The sale and widespread use of both semi-autonomous and fully autonomous vehicles, also known as “driverless cars,? are both imminent and likely to significantly change the way in which citizens commute, interact, and travel. While there is substantial concern amongst state lawmakers and the general public about the overall safety and desirability of these vehicles, experts predict that fully autonomous cars will dramatically improve highway safety, reduce traffic, increase productivity, and enhance the independence of individuals who are unable to obtain licenses. Lawmakers, however, motivated by irrational fears and unfounded assumptions that human drivers are far superior to automated technologies, have begun passing driverless car laws that create significant liability issues while doing very little to enhance road safety. These laws ignore the differences between semi-autonomous and fully autonomous vehicles, chill technological advancement, impose unwarranted liability on human drivers in many circumstances, and may actually incentivize human driver behavior that is less safe than letting vehicles drive autonomously. Both “operator? and override provisions – two very common types of driverless car laws – make these mistakes. These laws should be revised significantly or struck down and replaced with laws and regulations that are both carefully tailored to particular levels of autonomous technologies and informed by the growing amount of empirical research suggesting that fully autonomous vehicles are far safer than those controlled by human drivers.

"Conjugal Liability" Free Download

SARAH LYNNDA SWAN, Columbia University, Law School
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Because of a commitment to the concept of individual culpability, holding someone responsible for the wrongdoing of another is a relatively rare occurrence in American jurisprudence. This Article reveals a significant, yet largely unacknowledged, source of such liability: conjugal liability. Conjugal liability occurs when one spouse or intimate partner is held legally responsible, either directly or indirectly, for their partner’s wrongful acts. Conjugal liability penalizes one intimate partner for the actions of the other in a vast array of legal fields and domains, ranging from tort, criminal law, property and employment law, to creditor’s remedies, bankruptcy, and tax law.

Within these domains, conjugal liability is deployed for a variety of laudable purposes, such as the prevention of harm to third parties, the deterrence of drug or other criminal activity, and the expansion of creditor’s remedies. However, conjugal liability is a deeply problematic way of achieving these goals. First, in operation, it is profoundly gendered: most often, it holds wives and girlfriends legally responsible for the wrongdoing of their husbands or boyfriends. Second, in many instances, conjugal liability is unmoored from traditional notions of culpability, and is arguably a concealed form of guilt by association. Third, conjugal liability flies in the face of the constitutional right to freedom of intimate association. Because of these troubling features, conjugal liability should be recalibrated so as to ensure an actual connection between an intimate partner and the underlying wrong, as opposed to merely a connection between the intimate partner and the wrongdoer.

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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.

Editor: Keith N. Hylton, Boston University

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LSN SUBJECT MATTER EJOURNALS

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Northwestern University - Pritzker 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, Chicago-Kent College of Law - Illinois Institute of Technology