Thomas Miceli, ‘The color of law: an economic theory of legal boundaries’

This paper presents an economic theory of property, tort, and contract law based on the goal of efficiently governing economic exchange relationships. In the theory, legal boundaries emerge endogenously in response to exogenous differences in the nature of the underlying transaction concerning the possible existence of unforeseen or non-contractible contingencies, and/or the desire of one of the parties to make non-salvageable investments prior to trade. The analysis asks whether, in this context, the transaction is best governed by property, tort, or contract principles. The conclusions are illustrated by a discussion of several cases that occupy the “boundaries” between the various areas.

Thomas J Miceli, The color of law: an economic theory of legal boundaries. European Journal of Law and Economics, October 2014, Volume 38, Issue 2, pp 185-209.

Kent Roach, ‘Blaming the victim: Canadian law, causation, and residential schools’

This article critically examines requirements that Aboriginal people demonstrate a causal relation between attendance at residential schools and present harms in tort claims and at sentencing. It suggests that causation requirements have a deep hold on Canadian law but that they can blame victims and discount the broader legacy of the schools. The first part examines so-called ‘crumbling skull’ arguments made by defendants in tort actions that Aboriginal plaintiffs would have suffered various harms even if they did not attend residential schools. The second part examines the refusal to award damages to Aboriginal plaintiffs for lost earnings while in prison. The final part examines how criminal courts have often required Aboriginal accused to establish a causal relation between crimes and residential schools, especially in intergenerational cases. This has continued even after the Supreme Court clearly indicated in the 2012 case of Ipeelee that judges should take notice of the broader legacy of residential schools as a background factor in sentencing.

Kent Roach, Blaming the victim: Canadian law, causation, and residential schools. University of Toronto Law Journal, Volume 64, Number 4, Special Issue, 2014.

Ben-Shahar & Schneider Symposium, Part IV: Robert Hillman

“Omri Ben-Shahar and Carl E Schneider have written an important book. In the first two parts of their book, they usefully gather and describe the myriad shortcomings of what they call ‘mandated disclosure’ as a regulatory tool and helpfully explain why disclosure very often fails. Following up on this analysis, in Part III Omri and Carl argue that mandated disclosure cannot be saved and ‘lawmakers should stop using it’. (13) The book certainly should give lawmakers pause before adopting new disclosure strategies …” (more)

[Robert Hillman, ContractsProf Blog, 17 September]

Ben-Shahar & Schneider Symposium, Part III: Ryan Calo, Disclosure Is Dead, Long Live Disclosure!

“Omri Ben-Shahar and Carl Schneider are careful, meticulous, and forceful in their critique of mandatory disclosure as a regulatory mechanism. And they are in a basic sense right. Mandatory disclosure really does operate as this ‘Lorelei, luring lawmakers on to the rocks of regulatory failure’ (4). I thoroughly recommend their rich new book, even if one has already read the law review article from which it sprung, The Failure of Mandated Disclosure, 159 University of Pennsylvania Law Review 647 (2011). What Ben-Shahar and Schneider are not, however, is dreamers. They take rigorous aim at mandatory disclosure in its present form, without really imagining how that form stands to evolve …” (more)

[Ryan Calo, ContractsProf Blog, 16 September]

Ben-Shahar & Schneider Symposium, Part II: Steven Burton, Skepticism about Nondisclosure

“I begin with a disclosure: I have been a skeptic about statutory disclosure requirements in my field, contract law, for many years. In More than You Wanted to Know: The Failure of Mandatory Disclosure, Omri Ben-Shahar and Carl E Schneider marshal an impressive array of empirical evidence, coupled with cost-benefit analysis, to argue that the costs of ‘mandatory’ disclosure as such are substantial while the benefits are close to nil. But their advocacy has not moved me to a conviction that mandatory disclosure laws generally should be repealed, as they conclude (p 183). In particular, certain disclosure requirements in contract law probably should be retained …” (more)

[Steven J Burton, ContractsProf Blog, 16 September]

Jyoti Ahuja, ‘Liability for Psychological and Psychiatric Harm: The Road to Recovery’

This article examines the judicial approach to emotional harm claims from a medical perspective. Legal rules in this area are already recognised as being illogical and incoherent. Psychological and psychiatric research illustrate that they also conflict with empirical findings. By basing claims on erroneous criteria, courts may deny liability in meritorious cases, and impose liability in possibly less deserving claims. This not only brings the law into disrepute, but also reinforces the stigma that surrounds mental illness, and does disservice to an already misunderstood and vulnerable section of people in society. The article examines the evidence for the threshold requirement that distress must qualify for a psychiatric diagnosis to be actionable, and for the Alcock secondary victim criteria. It contends that these legal rules are based in misconceptions about mental illness and trauma, and suggests an alternative approach that is more principled, yet also addresses policy concerns about excessive liability.

Jyoti Ahuja, Liability For Psychological And Psychiatric Harm: The Road To Recovery. Medical Law Review (2014), doi: 10.1093/medlaw/fwu018. First published online: September 14, 2014.

Bert Huang, ‘Surprisingly Punitive Damages’

Think first of the classic problem of redundant punitive damages: A defendant has caused a mass tort. Plaintiff 1 sues, winning punitive damages based on the overall reprehensibility of that original act. Plaintiff 2 also sues — and also wins punitive damages on the same grounds. So do Plaintiff 3, Plaintiff 4, and so forth.

Next, consider a more subtle problem: Many statutes set the minimum award per claim at a super-compensatory level, based on the assumption that private suits may need extra inducement. But when enforcement turns out to be more vigorous than was assumed — most famously, when thousands or millions of claims are brought at once — then the damages in even a single case can stack up to surprisingly punishing effect.

These problems share a conceptual feature that I analyze here: The damages in each context can be seen as encompassing two distinct components — a “variable” portion that properly varies with the number of claims, and a “fixed” portion that should be awarded only once. The crucial error that leads to surprisingly punitive damages is repeatedly awarding not only the variable but also the fixed component of damages, in cases with multiple claims.

One natural solution for neutralizing such redundancy is to allow courts to run concurrently the fixed component of such repeated awards. This paper explores how a “concurrent damages” approach might be applied to variations of each problem; addresses its pros, cons, and complications; and explores how it relates to other procedural devices, including preclusion and aggregation.

Huang, Bert I, Surprisingly Punitive Damages (August 1, 2014). Virginia Law Review, forthcoming.

Ben-Shahar & Schneider Symposium, Part I: Aditi Bagchi, Curiosity Makes the Cat

“Omri Ben-Shahar and Carl Schneider make a persuasive case that mandatory disclosure is no panacea for complex decisions. We do not use much of the information we are given, nor would we make objectively superior decisions were we to try. Since disclosure is expensive, though not for the state that requires it, we should not take on its costs with exaggerated expectation of benefit. Some regulatory effort should be redirected to other methods, including mandatory regulation of conduct …” (more)

[Aditi Bagchi, ContractsProf Blog, 15 September]

Chih-Ming Liang, ‘Rethinking the Tort Liability System and Patient Safety: From the Conventional Wisdom to Learning from Litigation’

This paper reviews the changing landscape of the debate over the relationship between tort law and patient safety. The conventional wisdom in the legal community is that tort litigation harms patient safety by discouraging providers from embracing openness and transparency; but this no longer correlates to reality. Instead, in recent years there has been a growing trend among providers to use claim and litigation data as opportunities to improve the performance of the delivery system, a trend referred to by this paper as the phenomenon of Learning from Litigation. By exploring this emerging phenomenon, in particular how healthcare providers specifically turn malpractice litigation into safety lessons, this paper proposes that, in the age of Patient Safety Movement and Learning from Litigation, the best approach to tort reform is to encourage early resolution via communication-and-resolution programs (i.e., the claims management model pioneered most notably by the University of Michigan Health System that is predicated on embracing the value of openness and transparency). This approach not only has strong potential to both reduce the number of claims and payout for providers and expand the pool of patients eligible for compensation, but, more importantly, may yield significant patient safety benefits by shaping a more transparent and safer medical culture within healthcare organizations. The proposed approach, in turn, can be supported by policies that: 1) reward providers’ commitment to patient safety and reduce the cost of litigation discovery; 2) help overcome the cultural, legal, and economical barriers to early resolution; and 3) incorporate communication-and-resolution program ideas into the pre-trial settlement negotiation processes.

Chih-Ming Liang. 2014. “Rethinking the Tort Liability System and Patient Safety: From the Conventional Wisdom to Learning from Litigation.”

Dyson, Wilmot-Smith and Goudkamp, ‘Central Issues in the Law of Tort Defences’

This chapter is an introduction to an edited collection on Defences in Tort, which is the first in a series of collections investigating defences in private law. This chapter is in three principal sections, though the sections are neither exhaustive nor hermetically sealed. We first examine what a defence actually is. We begin this section by considering a conundrum that pervades this field, namely whether it is possible to separate the definition of a defence from the consequences of something being a defence. We then consider the two main ways in which scholars have tried to understand the concept of a defence. In the second principal section of the chapter we turn to some general questions that the study of defences throws up across private law. Themes addressed here include the interplay between causes of action and defences, the tendency for the law to evolve defences that apply in tightly-confined situations rather than defences that are potentially generally applicable, the implications of defences for major theoretical accounts of tort law and the connection between statutes and defences. Finally, we draw out some themes and defences that are most commonly associated with the criminal law, such as the distinction between justifications and excuses, which may also be of relevance to private law theorists.

Dyson, Andrew D and Wilmot-Smith, Frederick and Goudkamp, James, Central Issues in the Law of Tort Defences (September 11, 2014) in Andrew Dyson, James Goudkamp and Frederick Wilmot-Smith (eds), Defences in Tort (Hart Publishing, Oxford, 2014) ch 1; Oxford Legal Studies Research Paper No 62/2014.