TORTS & PRODUCTS LIABILITY LAW eJOURNAL

"The Robustness Case for Proportional Liability" Free Download
The B.E. Journal of Theoretical Economics (2014 Forthcoming)
UCLA School of Law, Law-Econ Research Paper No. 14-06

ALEXANDER STREMITZER, UCLA School of Law
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AVRAHAM D. TABBACH, Tel Aviv University
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In important areas like medical malpractice and environmental torts, injurers are potentially insolvent and courts may make errors in determining liability (e.g. due to hindsight bias). We show that proportional liability, which holds a negligent injurer liable for harm discounted with the probability that the harm was caused by the injurer’s negligence, is less susceptible to these imperfections and therefore socially preferable to all other liability rules currently contemplated by courts. We also provide a result which might be useful to regulators when calculating minimum capital requirements or minimum mandatory insurance for different industries.

"When It’s Broken, Don’t 'Fix' It: Why Noneconomic Damage Caps Fatally Flaw Federal Due Process Jurisprudence" Free Download

SHAAKIRRAH SANDERS, University of Idaho - College of Law
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All state civil jury trial clauses, like their federal counterpart, find their interpretative basis in the English common law and all states recognize the historic origin of the civil jury trial right. Nevertheless, tort reformists have argued that excessive jury verdicts in personal injury cases have caused significant increases in tort litigation expenses and insurance premiums for medical professionals. Sufficiently convinced that civil jury trial procedure was broken, many state legislatures imposed fixed caps on recovery for noneconomic damage in personal injury cases. But no preliminary finding of excessiveness triggers any state’s noneconomic damage cap. Moreover, the Court has established the compensatory award, which consist of economic and noneconomic damages, as the starting point of a due process reasonableness review of a punitive award. This starting point erroneously assumes plaintiffs receive full compensation for the noneconomic value of an injury. This Article investigates state law statutory caps on noneconomic damage awards in personal injury cases. This Article discusses cap-affirming jurisprudence, which primarily relies on legislative authority to mandate juryless fact-finding but fails to reconcile traditional constitutional and common law norms. This Article also explores cap-disapproving jurisprudence, which primarily relies on the traditional fact-finding role of the civil jury but fails to address claims of excessiveness. This Article analogizes a similar tension in federal criminal jury trial clause jurisprudence between legislative authority to mandate juryless fact-finding at sentencing and the criminal jury trial right. This Article implores cap-approving state supreme courts to recognize traditional limits on legislative authority to alter constitutional rights and argues that noneconomic damage caps in common law-based personal injury cases significantly flaw the Court’s Due Process Clause reasonableness review of punitive damage awards. This Article maintains that caps are unnecessary, as excessive and arbitrary awards are a violation of due process. Unlike other works on this subject, this Article proposes a framework that advances the state’s dual interests to protect civil defendants from unreasonably high awards and severely injured plaintiffs from arbitrarily low awards. This framework also addresses and cures the constitutional defect that noneconomic damage caps produce in federal due process punitive damage jurisprudence.

"A Private Right of Action for Informed Consent in Research" 
Seton Hall Law Review, Vol. 45, No. 1, 2015

VALERIE GUTMANN KOCH, Illinois Institute of Technology - Chicago-Kent College of Law, New York State Task Force on Life and the Law
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That a patient who is harmed by her doctor due to lack of informed consent has a right to recover is an established tenet of tort law. In sharp contrast, such a right does not extend to a research participant who is harmed due to a lack of informed consent by an investigator in a research protocol. Yet in each case the requirement of informed consent is motivated by the same concern for protecting individual autonomy. Even if this differential legal treatment was justifiable in the past, I argue that advances in research technology require a new approach. Current research involving genetic testing technologies, biological samples, and medical imaging create a situation in which research projects pose the same basic threat to participant autonomy as medical procedures. In particular, an investigator’s obligation to disclose (or offer the research participant the opportunity to receive) findings that are secondary to the research protocol is at odds with the lack of individual recourse for an investigator’s failure to disclose the primary risks of the research protocol itself. Thus, extending a private right of action for lack of informed consent to the research setting will provide a necessary protection against the serious threat to participant autonomy that modern research poses.

"Gross Negligence Manslaughter in Irish Law" Free Download
(Forthcoming 2014) 37 Dublin University Law Journal

DAVID PRENDERGAST, School of Law, Trinity College Dublin
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The High Court of Ireland has recently rejected the claim that gross negligence manslaughter is an unconstitutionally vague offence. This note will attempt to explain how the offence is undeniably vague and yet may be constitutionally acceptable by reference to legality principles. This explanation will note the unusual nature of gross negligence manslaughter as a serious offence that typically arises from underlying lawful activity and explore the offence’s relationship with the prominent legality principles of fair notice and restraint of arbitrary power.

"Aftermarketfailure: Windows XP's End of Support" Free Download
112 Mich. L. Rev. First Impressions 109 (2014)

ANDREW TUTT, Yale University - Information Society Project, Yale University - Law School
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After 12 years, support for Windows XP ended on April 8, 2014. Microsoft Windows XP’s end of support, combined with a collective action failure stemming from individual users’ failure to realize or internalize the costs of failing to migrate or upgrade their operating systems, could be catastrophic. The attached essay briefly sketches out the argument for why software monopolists should be legally required to help other companies provide ongoing support for their products. First, it describes the conceptual and economic theories that would support such a requirement. Second, it describes the conflicting law governing the intersection between intellectual property and antitrust. Third, it exhorts Microsoft to extend the support clock, release its sourcecode, or make clear to the world that should anyone else wish to take on the task of providing future security support for Windows XP, Microsoft will help them to do so.

"On the Joint Use of Safety Regulation and Civil Liability to Promote Safe Management of Hazardous Operations: A French Case Study" Free Download
Journal of Risk Research, 2014, DOI: 10.1080/13669877.2014.889198

PIERRE BENTATA, CRED - University Paris II Panthéon Assas
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The aim of this article is to analyze the precise role of environmental civil liability in France. We do so by focusing on data from France, and claim that judges in fact seize hold of the possibility of combining regulation and civil liability. In other words, civil liability and regulation are complementary because they promote a duty of care in different ways. Moreover, judges and regulators interact; they provide each other with relevant information that is mutually beneficial for the maintenance of standards. Based on a unique database – that gathers all the litigations concerning environmental accidents judged by the French Supreme Court (Cour de Cassation) from 1956 to 2010 – we conclude that judges heavily rely on prior regulation, especially in cases of causal uncertainty. We argue that particularly in those cases where liability would traditionally be weak, courts tend to rely on breaches of regulation as evidence of increased risk of an activity by the perpetrator. On the other hand, judges can hold regulators liable when regulators did not monitor a regulated plant and this threat provides regulators with incentives to design and to apply stringent standards over risky activities. For these reasons, we conclude that regulation and civil liability should be jointly used to promote smart interdependencies that mitigate civil liability and regulatory failures.

"Civil Liability of Remote Third Party Texters in the Wake of Kubert v. Best" Free Download

EMILY KATHRINE STRIDER, Independent
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This article examines the potential civil liability of remote third party texters after the 2013 New Jersey case, Kubert v. Best. This article compares this type of civil liability to other scenarios involving liability for third parties and for cell phone use while driving.

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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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LSN SUBJECT MATTER EJOURNALS

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

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
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Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

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