Category Archives: Negligence
Robert Rhee, ‘The Tort Foundation of Duty of Care and Business Judgment’
Abstract: This Article corrects a misconception in corporation law – the belief that principles of tort law do not apply to the liability scheme of fiduciary duty. A board’s duty of care implies exposure to liability, but the business judgment rule precludes it. Tort law finds fault; corporation law excuses it. The conventional wisdom says [...]
Erik Knutsen, ‘Coping with Complex Causation Information in Personal Injury Cases’
Abstract: Nowadays, everything is always someone else’s fault. In the fault-based tort system in Canada, that often translates into injury cases exhibiting greater tendencies for presenting with complex information about how an injured victim’s injuries were caused. In many instances, the additional causation information is unwanted, irrelevant and muddies the task of applying causation doctrine [...]
Jennifer Arlen, ‘Economic Analysis of Medical Malpractice Liability and Its Reform’
Abstract: This Chapter provides an economic analysis of medical error employing a model in which physicians who provide suboptimal medical care may have done so knowingly (as in the traditional model) or accidentally. Accidental medical error is a leading cause of medical negligence: many if not most physicians who provided suboptimal care did not know [...]
James Henderson, ‘The Constitutive Dimensions of Tort: Promoting Private Solutions to Risk-Management Problems’
Introduction: “… Part II constructs a problem-solving perspective by setting out the conceptual framework: what problems are, what solutions are, and why it is helpful to distinguish between solving a problem and implementing a solution. Part II also identifies the nature and limits of the decisionmaking processes by which individuals and courts solve problems. Part [...]
Jennifer Arlen, ‘Reality Check: How Malpractice Facts Changed Malpractice Liability Theory’
Abstract: Empirical legal studies has transformed economic analysis of malpractice liability. Until recently, economic analysis of malpractice liability has been based on the traditional model of accidents. This model supports the conclusion that malpractice liability may not be needed if health insurers, not physicians, bear treatment costs. Moreover, this analysis implies that even when liability [...]
Kristin Madison, ‘The reality of the deterrence effect: How malpractice suits promote patient safety’
Commentary on Joanna C Schwartz, ‘A Dose of Reality for Medical Malpractice Reform’, NYU Law Rev (forthcoming), available at SSRN. “Discussions of patient safety often begin with the depressing statistic that 98,000 Americans die every year due to hospital medical error. From there, they may veer toward a conversation about the culture of silence that [...]
Nadia Sawicki, ‘Patient Protection and Decision Aid Quality: Regulatory and Tort Law Approaches’
Abstract: This Article considers a new development in medical practice – the use of medical decision-support tools – and positions it within one of the most enduring debates at the intersection of administrative law and tort law. The Article identifies key factors that policy-makers in medical, environmental, and other contexts use to decide between regulatory [...]
Michael Cannon, ‘Reforming Medical Malpractice Liability Through Contract’
Abstract: This paper discusses the medical malpractice “crisis” and the potential of contract liability to reduce overall malpractice costs as well as improve the quality of and access to care. First, the paper describes the current medical malpractice liability “system” and some of the more common reforms offered. It then discusses the economic rationale of [...]
Dari-Mattiacci and Franzoni, ‘Innovative Negligence Rules’
Abstract: We study how due-care standards can be conditioned on the technology adopted by the parties. We demonstrate that standards should be biased up or downwards, depending on the impact of the new technology on expected harm. Strict liability should be applied if new technologies that are able to reduce expected harm are available to [...]
Donal Nolan, ‘Negligence and Human Rights Law: The Case for Separate Development’
Abstract: A number of judges and academics have argued in favour of the convergence of negligence law with human rights law. By contrast, the thesis of this article is that the two legal orders should develop independently, so that for the most part the law of negligence ought not to be affected by human rights [...]
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