Monthly Archives: July, 2013

Grant and Studdert, ‘The Injury Brokers: An Empirical Profile of Medical Expert Witness in Personal Injury Litigation’

Abstract: In the civil justice system, medical expert witnesses act as brokers of what qualifies as legally recognized and compensable injury. Despite the central importance of their role, and continuing debate over the use of expert evidence, remarkably little empirical evidence is available about who medical experts are and what they do. This article reports […]

Baniak, Grajzl and Guse, ‘Producer Liability and Competition Policy When Firms are Bound by a Common Industry Reputation’

Abstract: We contrast the laissez-faire regime with the regime of strict producer liability, and draw the implications for competition policy, in a setting where oligopolistic firms cannot differentiate themselves from rivals but rather are bound by a common industry reputation for product safety. We show that, first, unlike in the traditional products liability model, firms’ […]

Robert Leflar, ‘Medical Malpractice Reform Measures and Their Effects’

Abstract: New rules and methods for medical injury dispute resolution have been launched in New Hampshire and New York, and demonstration projects are underway elsewhere. This article describes major medical malpractice reforms undertaken and proposed in recent years. Reforms are classified as (1) liability-limiting initiatives favoring health-care providers; (2) procedural innovations promoted as improving dispute […]

Aaron Goldstein, ‘The Public Meaning Rule: Reconciling Meaning, Intent, and Contract Interpretation’

Introduction: … In this Article, I argue that courts should abandon extrinsic evidence typically associated with the subjective intent of the parties, such as evidence of the parties’ course of performance or course of dealing, as a basis for interpreting negotiated commercial contracts, unless the contract is intractably ambiguous. Courts have increasingly seen this notion […]

Jonathan Griffiths, ‘Dematerialization, Pragmatism and the European Copyright Revolution’

Abstract: A model of copyright protection under which the law’s attention is directed towards a dematerialized, malleable essence (‘originality’, ‘labour and skill’ or ‘creativity’) has gradually evolved in the UK. This model has come to regulate all fundamental questions concerning the scope and attribution of rights. Nevertheless, until very recently, some aspects of copyright doctrine […]

Thomas Cotter, ‘Make No Little Plans: Response to Ted Sichelman, “Purging Patent Law of ‘Private Law’ Remedies”‘

Abstract: This essay responds to Professor’s Ted Sichelman’s forthcoming article, Purging Patent Law of “Private Law” Remedies, 91 Tex. L. Rev. __ (2013), which argues that courts should abandon the conventional view of patents as private rights for which private-law remedies are appropriate, and instead should award damages and injunctions only when, and to the […]

Donald Gifford, ‘The Death of the Common Law: Judicial Abdication and Contributory Negligence in Maryland’

Abstract: The issue of how to handle a victim’s own contributory negligence that combines with the negligence of a tortfeasor in causing harm is one of the most important, if not the most important, issue in all of tort law. Forty-six states now apply some version of comparative fault that holds the defendant liable for […]

Hilary Young, ‘Adding Insult to Injury in Corporate Defamation Damages’

Abstract: The law of defamation treats corporations almost identically to natural persons. In most common law countries, corporations may bring defamation actions, and the elements are the same for corporate plaintiffs as for natural person plaintiffs, as are the defences. So too, are the principles for awarding damages. Both people and corporations have valuable reputations […]

Adam Abelkop, ‘Tort Law as a Nested Polycentric Environmental Governance Institution’

Abstract: Though legal scholars have long recognized the general deterrent effect of tort on firms’ level of risk-taking regarding the environment, courts have been hesitant to affirm tort’s role as an environmental policy tool. In this paper, I apply the theory of polycentric governance developed and expounded by Vincent and Elinor Ostrom and others to […]

Keith Hylton, ‘Causation in Tort Law: A Reconsideration’

Abstract: Causation is a source of confusion in tort theory, as well as a flash point between consequentialist and deontological legal theorists. Consequentialists argue that causation is generally determined by the policy grounds for negligence, not by a technical analysis of the facts. Conversely, deontologists reject the view that policy motives determine causation findings. Causation […]