Benjamin McMichael, ‘The Failure of “Sorry”: An Empirical Evaluation of Apology Laws, Health Care, and Medical Malpractice’

As part of the effort to contain the size and frequency of medical malpractice claims, many states have adopted apology laws. These laws make apologies from physicians to patients inadmissible in any subsequent court proceedings. The basic rationale behind apology laws is that meritless malpractice claims are less likely to be filed when a physician can apologize to his or her patient without risking those statements being used in court. Through the use of a unique dataset, this article corrects several misunderstandings concerning this new generation of tort reform.

First, it shows that while apology laws may reduce the frequency and size of malpractice claims as intended, they may also have a perverse effect on patients’ propensity to litigate. If a physician knows more about whether a patient’s injury was caused by malpractice than the patient, an apology could alert the patient to that malpractice and encourage the filing of a claim.

Second, the article provides the first empirical analysis of the effect of apology laws on clinical outcomes, investigating their ability to reduce the practice of defensive medicine. Examining over 1.6 million hospital stays for heart attack patients, the article finds no evidence that apology laws reduce defensive medicine. Apology laws do not decrease the intensity of treatment received by patients. In fact, they increase the medical resources used to treat heart attack patients, consistent with an increase in defensive medicine. Based on these empirical findings, the article concludes that apology laws are not effective tort reforms and that states should look to other policies if they wish to achieve the goals of apology laws.

McMichael, Benjamin J, The Failure of ‘Sorry’: An Empirical Evaluation of Apology Laws, Health Care, and Medical Malpractice (August 16, 2017).

Victor Goldberg, ‘The MacPhersonHenningsen Puzzle’

In the landmark case of MacPherson v Buick, an automobile company was held liable for negligence notwithstanding a lack of privity with the injured driver. Four decades later, in Henningsen v Bloomfield Motors, the court held unconscionable the standard automobile company warranty which limited its responsibility to repair and replacement, even in a case involving physical injury. This suggests a puzzle: if it were so easy for firms to contract out of liability, did MacPherson accomplish anything?

Goldberg, Victor P, The MacPherson-Henningsen Puzzle (August 8, 2017). Columbia Law and Economics Working Paper No 570.

Call for Papers: ‘Misuses of Power in Both Private and Public Law: Dual Perspectives on Corruption’: Younger Scholars Forum in Comparative Law, XXth International Congress, Fukuoka, Japan, 25 July 2018

“We invite younger scholars to participate in the first-ever Younger Scholars Forum in Comparative Law, to be held in Fukuoka, Japan on Wednesday, July 25, 2018, from 9:00am to 12:00pm as part of the larger quadrennial Congress of Comparative Law organized by the International Academy of Comparative Law (IACL) … Workshop 7: Misuses of Power in Both Private and Public Law: Dual Perspectives on Corruption – Abstract: The efficiency of the fight against corruption is generally considered as quality factor of the Rule of Law. This efficiency relies, among other things, on the unity of action. In turn, this unity depends upon our capacity to coordinate legal effects across those two major categories of legal literature that are public law and private law. It is not only the level, but also the content of such a coordination that varies with the legal systems, both national and supranational ones. Beyond the search for functional equivalents across countries within the same category, such as the fiduciary duty at common law and the duty of loyalty and fidelity under the French Commercial Code, it is thus worth examining the ways in which real or apparent equivalents may differently relate to public or private law according to the jurisdiction …” (more)

‘Research, Innovative treatments and Barriers for innovation including liability’: Keele University, 14 September 2017

This seminar is part of an ESRC funded series which will examine the relationship between the regulation of research, and of innovative treatments and the effects on innovation. Issues to be addressed include the distinction between innovative treatment and research; the responsibilities of the scientist versus the clinician in translation of innovative therapies; the relative threat of tort law and regulation on innovation in research; and whether the level of compensation to research subjects stifles innovation (more).

Joanna Manning, ‘Does the Law on Compensation for Research-Related Injury in the UK, Australia, and New Zealand Meet Ethical Requirements?’

Despite a consensus that society owes an ethical obligation to compensate for research-related injury, and that no-fault is the best ethical response, an assessment of the compensation arrangements in place in the UK, Australia and New Zealand shows that in general compensation arrangements fall below this ethical expectation. Most subjects rely on ex gratia payment or an unenforceable assurance of payment in the event of injury. It is also likely that, given significant deficiencies in participant information about compensation arrangements in place for trials recommended by the supervisory ethics agencies in each jurisdiction, subjects only find out about their financial exposure in the event of injury. Industry-drafted guidelines governing compensation in commercially sponsored trials do not protect subjects’ interests, but operate primarily to protect the interests of industry. The article considers potential solutions to the ethical deficiency of the compensation arrangements, and argues that the ethical corollary of the fact that society is the ultimate beneficiary of its members’ participation in clinical research, is that society as a whole should bear the cost of participant injuries, through establishment of a central no-fault compensation fund financed either by the state or those directly involved in biomedical research.

Joanna M Manning, Does the Law on Compensation for Research-Related Injury in the UK, Australia, and New Zealand Meet Ethical Requirements?, Medical Law Review, Volume 25, Issue 3, 1 August 2017, Pages 397–427,

Brian Fitzpatrick, ‘Do Class Actions Deter Wrongdoing?’

I and other scholars have long pointed to the deterrence virtue of the class action to justify its existence even when it was doubtful that it furthered its other purposes, such as compensation or litigation efficiency. In recent years, critics have argued that class actions may not offer even this virtue. Some argue that the entire theory of general deterrence is misguided for class actions and others argue that, whatever the theory, there is no empirical proof that class actions do what the theory says. In this article, I take up these critiques. I find that the theory of deterrence remains just as strong today as it was when it was introduced 50 years ago by the ‘classical’ law and economics movement. Moreover, although there is not a great deal of empirical evidence to support the theory for class actions, there is some, it is uncontroverted, and it is consistent with reams and reams of empirical evidence in favor of deterrence for individual lawsuits. I conclude that the conventional view that the class action can be justified by the deterrence rationale alone remains sound.

Fitzpatrick, Brian T, Do Class Actions Deter Wrongdoing? (August 9, 2017). Vanderbilt Law Research Paper No 17-40.

‘Why the CJEU cheese copyright case is anything but cheesy’

“A few months ago a Dutch court (Arnhem-Leeuwarden Court of Appeal) made a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU), asking whether the EU copyright system – notably Directive 2001/29 (the InfoSoc Directive) – allows Member States to extend copyright protection to something like the taste of a particular cheese (in this case, the Dutch Heks’nkaas spreadable cheese) …” (more)

Eleonora Rosati, Journal of Intellectual Property Law and Practice, Published: 18 August 2017.

Clifford Villa, ‘Is The “Act of God” Dead?’

In more than twenty years with the US Environmental Protection Agency (EPA) before joining the legal academy, I saw many communities affected by fires, floods, hurricanes, earthquakes, and other natural disasters. However, I never saw a case where the act of God defense prevailed against environmental liability. Confirming this personal experience, I later learned that the number of reported cases where the act of God defense had prevailed against environmental liability, under all statutes and all federal circuits, was also exactly zero.

This raises two obvious questions: (1) why does the act of God defense so often fail? and (2) if the act of God defense has never succeeded in court, does the act of God defense really mean anything today? This essay will attempt to answer both questions. For many good reasons, many legal scholars have suggested that the act of God defense should be effectively retired as it is no longer relevant to our modern world where the hand of Man may be seen behind every ‘natural’ disaster. As submitted by Professor Denis Binder more than twenty years ago, ‘[t]he time has come to recognize the act of God defense for what it is: anachronistic ….’ Without rejecting these scholarly criticisms, this essay endeavors to find some life and value remaining within the act of God defense. In particular, the act of God defense, as currently provided within federal environmental law, may provide a viable incentive for industry and other actors to take reasonable precautions in order to save lives, protect the environment, and otherwise avoid or mitigate the impacts of natural disasters.

Villa, Clifford J, Is The ‘Act of God’ Dead? (2017). Washington Journal of Environmental Law and Policy, volume 7, no 2, 2017; UNM School of Law Research Paper No 2017-06.

Peter Lee, ‘Toward a Distributive Agenda for US Patent Law’

As commonly understood, the US patent system is a utilitarian regime that employs exclusive rights and market incentives to promote technological progress. Unlike international and foreign regimes, the domestic patent system less explicitly addresses non-utilitarian issues such as access, equity, and distributive justice in conferring and enforcing exclusive rights. This Article, however, challenges this conception of the US patent system as unconcerned with distributive considerations on descriptive and normative grounds. First, contrary to prevailing characterizations, it reveals numerous ‘distributive’ mechanisms within and associated with the US patent system that widen access to patented technologies, encourage the development of technologies to serve marginalized communities, and broaden participation in the patent system itself. Second, it argues at a normative level that such emphasis on distribution is consonant with the ideological foundations of US patent law and its commonly understood objectives of promoting progress, maximizing utility, and enhancing efficiency. Third, building on these insights, this Article sketches the contours of a distributive agenda for US patent law. It identifies roles for Congress, courts, and agencies – particularly the USPTO – to lower the cost of critical patented technologies, encourage the development of technologies particularly valuable to marginalized communities, and broaden and diversify the base of inventors obtaining protection for their creations.

Lee, Peter, Toward a Distributive Agenda for US Patent Law (August 18, 2017). Houston Law Review, volume 55, forthcoming.

‘The Real World’

Karen Bradshaw, Settling for Natural Resource Damages, 40 Harvard Environmental Law Review 211 (2016); James W Coleman, How Cheap Is Corporate Talk? Comparing Companies’ Comments on Regulations with Their Securities Disclosures, 40 Harvard Environmental Law Review 48 (2016). My very first law professor, Bob Ellickson, once said to my Torts class: ‘You know how law professors do empirical research? They sit in a room and think very hard’. That was in 1984. A lot has changed since then, partly because of pioneering work by Ellickson himself. Since 2012, more than 500 law review articles have included the word ’empirical’ in their titles, and probably hundreds more – including every item in the most recent issue of the Journal of Empirical Legal Studies – report or analyze empirical data without titular advertisement. Many of these papers feature linear regressions or other complex statistical analyses aiming to tease out relationships between variables. Yet there remains much value in research that simply but rigorously informs us of what actually happens in the real world. Understanding environmental law, like understanding the environment, begins with observing. This Jot acknowledges the contributions of two recent articles that help us see … (more)

[Steve Gold, JOTWELL, 18 August]