RONEN AVRAHAM, University of Texas at Austin - School of Law
Email: ravraham@law.utexas.edu
MAX M. SCHANZENBACH, Northwestern University - School of Law
Email: m-schanzenbach@law.northwestern.edu

This paper employs a unique data set comprised of a large sample of hospital in-patients to analyze the effect of tort reform on physician behavior. We examine a sample of 550,000 individuals aged 30 to 64 diagnosed as having had a heart attack between the years 1998 and 2005. We consider a number of different measures of intensity of treatment, including (1) total charges; (2) whether any procedure was done; (3) the number of procedures; and (4) the choice of major interventions (angioplasty versus bypass). We find that tort reform decreases intensity of treatment. More importantly for inference, the effect is most pronounced for the young, the group that poses the greatest liability risk. In addition, we find no evidence that tort reform increased intensity of treatment for those covered by insurance, suggesting that tort reform did not increase “induced demand.�

ANDREW F. DAUGHETY, Vanderbilt University - College of Arts and Science - Department of Economics, Vanderbilt University - School of Law
Email: andrew.f.daughety@vanderbilt.edu
JENNIFER F. REINGANUM, Vanderbilt University - College of Arts and Science - Department of Economics, Vanderbilt University - School of Law
Email: jennifer.f.reinganum@vanderbilt.edu

In this paper we examine a dynamic model of the process by which multiple related lawsuits may be filed and combined; we also examine actions a defendant may employ that may disrupt the formation of a joint suit. Our initial model involves two potential plaintiffs, with private information about the harm they have suffered, in a multi-period setting with positive costs of filing a suit. If two plaintiffs file, they join their suits to obtain a lower per-plaintiff trial cost and a higher likelihood of prevailing against the defendant. We find that some plaintiff types never file, some wait to see if another victim files and only then file, some file early and then drop their suits if not joined by another victim and, finally, some file and pursue their suits whether or not they are joined; thus, the equilibrium resembles a 'bandwagon.'

We then consider the effect of allowing preemptive settlement offers by the defendant aimed at discouraging follow-on suits. Preemptive settlement results in a 'gold rush' of cases into the first period. In general, plaintiffs (ex ante) strictly prefer that such preemptive settlements not be allowed, and computational results suggest this may be broadly true for defendants as well; however, the inability of defendants to commit to such a policy results in an equilibrium with preemptive settlement. Finally, we consider partial unawareness of victims as to the source of harm; this provides a role for plaintiffs’ attorneys, who may seek additional victims to join a combined lawsuit. Confidential preemptive settlements in the case of partial unawareness restrict the plaintiff’s attorney from seeking additional victims and therefore leads to higher preemptive settlement amounts. Moreover, the defendant strictly prefers to employ preemptive settlement if the fraction of unaware victims is sufficiently high.

ERIK S. KNUTSEN, Queen's University Faculty of Law
Email: knutsen@queensu.ca

This article about causation in negligence law is different from past attempts at unraveling causation in Canada. It argues that there is nothing overly confusing about the law of causation in negligence. Rather than lament the confusing state of affairs or argue for a new causation test, the article attempts to define the current state of causation in Canadian negligence law with a simple goal in mind – to have a clearer, more productive conversation about the law with the fundamental concepts clearly and unobtrusively on the table. Such clarification should hopefully augment and streamline discussions among courts, commentators, and lawyers about this seemingly thorny subject. To date, writings about causation in tort have focused largely on the mess of the entire subject and how so much is confusing and undefined.

This article proceeds on the foundation that the leading Canadian cases on causation should not be read like cryptic advice from isolated fortune cookies, with each word taking on ominous significance. The cases are a continuum of conversations about an important topic in tort law. This article offers a cohesive framework to the law by taking a longitudinal perspective and focusing on the simple themes of Canadian tort law present in the causation jurisprudence: the doctrinal tests for causation, evidence for proving causation, thin skulls, and crumbing skulls. Avoiding emphasis on a case-by-case dissection approach, this article instead combines the relevant jurisprudence in an understandable scope. At the centre of the analysis is the bedrock principle that the negligence system is a fault-based system which relies on proving a connection between a defendant’s wrongful behaviour and a plaintiff’s injury.

MARTA INFANTINO, University of Trieste School of Law
Email: martainfantino@libero.it
MAURO BUSSANI, University of Trieste School of Law
Email: BUSSANIM@UNIV.TRIESTE.IT
FRANZ WERRO, Georgetown University - Law Center
Email: fgw@law.georgetown.edu

The goal of this paper is to present aims, methods and features of the research carried out by the ‘The Common Core of European Private Law� project in the field of tort law. Accordingly, we will first depict the immediate and long-term goals of the ‘Common Core’ endeavour, as well as its methodology and organisation. We will then illustrate the four tort law volumes that have been so far published within the project. This will lead us to find out the distinctive tenets of the Common Core approach as applied to tort law issues, and to put forward some remarks about the scenarios that this approach, and those tenets are bound to open.

ERIK S. KNUTSEN, Queen's University Faculty of Law
Email: knutsen@queensu.ca

Advocates contemplating seeking Leave to Appeal to the Supreme Court of Canada in personal injury cases face a unique decision calculus. The strategy at this Court is different from that of other appellate courts because the Supreme Court of Canada uses a particular test for granting Leave: “public importance.� One must first ask for Leave from the Supreme Court to even get to a hearing on the merits. When one’s personal injury appeal is competing on the Supreme Court’s Leave docket with other cases bringing issues such as unconstitutional search and seizure, equality rights, the separation of Quebec, and freedom of expression, the task of imbuing one’s case with “public importance� becomes a challenge. This article aims to offer some strategy behind the Leave process by removing some of the mystery so that personal injury lawyers and their clients can make informed decisions about this potentially important step.