Category Archives: Negligence

Alex Long, ‘Abolishing the Suicide Rule’

ABSTRACT Suicide is increasingly recognized as a public health issue. There are over 40,000 suicides a year in the US, making suicide the tenth-leading cause of death in the country. But societal attitudes on the subject remain decidedly mixed. Suicide is often closely linked to mental illness, a condition that continues to involve stigma and […]

Ori Herstein, ‘Nobody’s Perfect: Moral Responsibility in Negligence’

ABSTRACT Given the unwittingness of negligence, personal responsibility for negligent conduct is puzzling. After all, how is it that one is responsible for what one did not intend to do or was unaware that one was doing? How, therefore, is one’s agency involved with one’s negligence so as to ground one’s responsibility for it? Negligence […]

Zabinski and Black, ‘The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform’

ABSTRACT We examine whether caps on non-economic damages in medical malpractice cases affect in-hospital patient safety. We use Patient Safety Indicators (PSIs) – measures of adverse events – as proxies for safety. In difference-in-differences (DiD) analyses of five states that adopt caps during 2003-2005, we find that patient safety gradually worsens after cap adoption, relative […]

Paterson and Bant, ‘In the Age of Statutes, Why Do We Still Turn to the Common Law Torts?: Lessons from the Statutory Prohibitions on Misleading Conduct in Australia’

ABSTRACT One unique feature of Australian Consumer Law is that the protection afforded by the statutory prohibition on misleading conduct is not limited to individual consumers but extends to all parties in ‘trade or commerce’. Liability under the statutory regime does not require any element of fault and offers a broad range of remedies to […]

Eric Talley, ‘Automatorts: How Should Accident Law Adapt to Autonomous Vehicles? Lessons from Law and Economics’

ABSTRACT The introduction of autonomous vehicles (AVs) onto the nation’s motorways raises important questions about our legal system’s adaptability to novel risks and incentive problems presented by such technology. A significant part of the challenge comes in understanding how to navigate the transition period, as AVs interact routinely with conventional human actors. This paper extends […]

‘Is Less Really More? Abraham and Kendrick on Getting Rid of Affirmative Duties’

Kenneth S Abraham and Leslie Kendrick, There’s No Such Thing as Affirmative Duty, Virginia Public Law and Legal Theory Research Paper No 2018-59, available at SSRN. When it comes to inherited scholarly categories and taxonomies, a prominent strand of modern American tort scholarship pursues a particular kind of deflationary agenda. The First and Second Restatements […]

Marel Katsivela, ‘The Breach of the Standard of Care [Common Law Tort of Negligence] and the Concept of Fault in Personal Extracontractual Liability (Civil Law) in Canada: A Comparative Study’

ABSTRACT This study aims to describe the principles that govern breaches of the standard of care (in the common law tort of negligence) and fault (personal extra-contractual liability in the civil law – CCQ section 1457). More specifically, it focuses on the reasonable person and their conduct in the two legal traditions in Canada. The […]

Marc Ginsberg, ‘Informed Consent: No Longer Just What the Doctor Ordered? Revisited’

ABSTRACT The law of informed consent in medicine has evolved from the original doctrine which required the physician’s disclosure of the risks, benefits, and complications of (and alternatives to) a proposed procedure or treatment. The doctrine now implicates the disclosure of matters personal to the physician. Questions regarding the breadth of the doctrine in other […]

Moghtaderi, Farmer and Black, ‘Damage Caps and Defensive Medicine: Reexamination with Patient‐Level Data’

ABSTRACT Physicians often claim that they practice ‘defensive medicine’, including ordering extra imaging and laboratory tests, due to fear of malpractice liability. Caps on noneconomic damages are the principal proposed remedy. Do these caps in fact reduce testing, overall health‐care spending, or both? We study the effects of ‘third‐wave’ damage caps, adopted in the 2000s, […]

Aaron Taylor, ‘Concurrent Duties’

ABSTRACT This paper offers an account of concurrent liability, and in particular the existence of, and interaction between, concurrent contractual and non‐contractual duties. It argues for five essential propositions: (1) a defendant can owe simultaneous private law duties towards a claimant, the content of which overlaps in whole or in part; (2) cases of concurrent […]