Category Archives: Personal Injuries

Paul Strickland, ‘The Market For Torts: An Imperfect Alternative’

ABSTRACT This Note applies the theory of comparative institutional analysis to evaluate the trade-offs from permitting the assignability of personal injury tort claims and the sanctioning of markets in such claims. I assess the trade-offs for three aspects of the tort system: compensation for victims, deterrence of inefficient risk-taking, and judicial economy. I outline the […]

Joanna Manning, ‘Oh What an Unholy Mesh! Diamond v Royal Devon and Exeter NHS Foundation Trust [2019] EWCA Civ 585′

ABSTRACT In Diamond v Royal Devon and Exeter NHS Foundation Trust [2019] EWCA Civ 585, the Court of Appeal mistakenly applied the wrong test to the issue of the causal link between the surgeon’s failure to disclose material information and her physical injury. Even had that test been correct, its application to the facts was […]

Haim Abraham, ‘Tort Liability for Belligerent Wrongs’

ABSTRACT Most legal systems deny civilians a right to compensation for losses they sustain during belligerent activities. Arguments for recognising such a right are usually divorced, to various degrees, from the moral and legal underpinnings of the notion of inflicting a wrongful loss under either international humanitarian law or domestic tort law. My aim in […]

Steve Hedley, ‘The Unacknowledged Revolution in Liability for Negligence’

ABSTRACT Wide availability of insurance today makes nonsense of most of tort’s traditional justifications. No longer can it punish or deter wrongs, or deal even-handedly between claimant and defendant: the defendant simply drops out of the picture in favour of their employer or insurer. Tort therefore merely compensates, though theorists are reluctant to concede this. […]

Gentry and Viscusi, ‘Asymmetric Effects on Fatality Rates of Changes in Workers’ Compensation Laws’

ABSTRACT With irreversible investments in safety, changes in workers’ compensation laws should affect employer incentives asymmetrically: increases in workers’ compensation generosity should cause employers to invest more in safety, but comparable decreases might not cause them to disinvest in existing precautionary programs or equipment. Although maximum weekly benefits caps have been fairly stable, state laws […]

Danziger and Katz, ‘Compensation in personal injury cases: mean or median income?’

ABSTRACT Courts typically base compensation for loss of income in personal injury cases on either mean or median work income. Yet, quantitatively, mean and median incomes are typically very different. For example, in the US, median income is 65% of mean income. In this paper we use economic theory to determine the relation between the […]

‘Can a parent sign away a child’s rights by signing a waiver of liability? Not in Kentucky (and many other states)’

“Those of you who have children out there are familiar with this, which as a parent myself, I have seen and done lots of times! Your child wants to participate in a sport or other physical activity, and you (the parent) are asked to sign a ‘waiver’ before the child can be allowed to do […]

‘How judges added to the grim toll of opioids’

“For years, they sealed evidence about the risks as the body count mounted. And as a Reuters analysis found, it’s only one of many big product-liability cases in which judges have countenanced a lethal and often unlawful secrecy …” (more) [Benjamin Lesser, Dan Levine, Lisa Girion and Jaimi Dowdell, Reuters, 25 June]

Jill Wieber Lens, ‘Tort Law’s Devaluation of Stillbirth’

ABSTRACT … This Article uses feminist legal theory and empirical research of parents after stillbirth to demonstrate that tort law devalues stillbirth. That devaluation is due to the cognitive bias associating stillbirth with women. Historically, stillbirth only appeared in women’s claims for emotional distress. Instead of recognizing her child’s death, courts treated, and some courts […]

Grace Giesel, ‘A New Look at Contract Mistake Doctrine and Personal Injury Releases’

ABSTRACT One might expect a court to look very skeptically when a party to a personal injury release asks a court to set aside the release. But many courts have reacted atypically when injured parties who have settled their claims have sought to have those releases set aside on the basis of a lack of […]