Sometimes the rules let you change the rules. In civil procedure, many rules are famously rigid-f... more Sometimes the rules let you change the rules. In civil procedure, many rules are famously rigid-for example, neither the parties nor the judge can stipulate to subject matter jurisdiction-but closer inspection yields many ways that judges or parties (individually or by agreement) can change procedural defaults, such as the number of depositions, trial by judge or jury, or sometimes even jurisdiction. Whether the judge or parties have "flexibility" to change the rules of the game is an important, but understudied, aspect of procedure. This Article is the first to document the full spectrum of procedural flexibilitythe varied and sometimes surprising range of ways in which judges and parties can modify procedure in their cases. We show that procedural flexibility spans a broad spectrum from rigid inflexibility, to contracts that modify procedure, to unilateral control over procedure, and beyond, to a new frontier of innovations-buying and selling of procedures between parties in different cases, and markets or auctions for everything from depositions to jury trials. Some of these possibilities seem radical, but we show that, contrary to conventional wisdom, current civil practice already permits similarly radical flexing of procedure. As a normative matter, we argue that even radical forms of flexibility (like markets in procedure) cannot be ruled out based on familiar normative criteria such as efficient dispute resolution, norm creation, distributive justice, or facilitation of
Current tort law contains incentives to target individuals and communities based on race and gend... more Current tort law contains incentives to target individuals and communities based on race and gender. Surprisingly, the basis for such targeting is the seemingly neutral use of three different race-and gender-based statistical tables (for wages, life expectancy, and worklife expectancy) which, when used in tort damage calculations, result in a great disparity between damages awarded to whites versus blacks and men versus women. Thus, tort law's remedial damage scheme perpetuates existing racial and gender inequalities by compensating individuals (especially children) based on their race and gender. Even worse, tort law creates ex ante incentives for potential tortfeasors to engage in future discriminatory targeting of women and minorities. We provide the first full account of courts' existing discriminatory practices. We then address the deficiencies in the nonblended tables that courts use (tables that use race and gender as discriminating factors) and the reasons behind their continued use. We show how the various theories of tort law (corrective justice, distributive justice, and economic efficiency) have contributed to a misunderstanding of the proper damages calculation and illustrate how the very same theories can be used to engender a change in the current praxis. We then challenge the conventional wisdom that the use of race-and gender-based tables is justified on efficiency grounds, noting fatal flaws inherent in the tables, in how they are used in courts to calculate damages for individuals, and in the incentives they create.
Civil procedure serves a multitude of goals, from regulating the cost of fact gathering, to dicta... more Civil procedure serves a multitude of goals, from regulating the cost of fact gathering, to dictating the rules of advocacy in court, to promoting public participation in trials. To what extent can procedural design serve them all, or must rules sacrifice some interests to serve others? In this paper, we are the first to introduce a theory of procedure design that answers this question. We build upon the fundamental insight that the goals of civil procedure, as varied as they are, all occupy a common conceptual space-each addresses an externality, positive or negative, that litigation creates. This insight allows us to tie together distinct strands of scholarship on procedural design, develop a taxonomy of externalities that civil procedure addresses, and propose (sometimes radical) reforms that would allow procedure to serve more of its goals at once. First, we show that the literature on procedural design has unraveled into three distinct strands. The first strand centers on the interest in reducing cost and delay in litigation. The second strand centers on the interests in limiting gamesmanship between the parties and improving court accuracy in decisionmaking. The third strand centers on the many related interests in the positive effects of procedure on society such as the development of legal precedent, deterring unwanted (primary) behavior and so on. Second, we tie together these strands of the literature by observing that each strand is focused on how procedure can address one type of externality. The first strand of the literature addresses what we call system externalities-the effects of actions on other cases in the same court or court system. The second strand addresses what we call strategic externalities-the effects of a party's actions on opposing parties in the same case. The third strand implicate external effects on society as a whole, which we call public goods externalities. Third and most ambitiously, we show that these three types of externalities give us a three-dimensional framework for procedural design. In this framework, we see how different aspects of procedure implicate one externality, or another, or two or three externalities at once. This in turn points the way toward opportunities to introduce procedural reforms tailored to types of externalities at issue. Our solutions range from surprising forms of judicial command-and-control (for example, the Supreme Court prohibiting parties from settling), to fees and subsidies (for example, a fund for judicially appointed neutral experts in important cases), to radical market-based reforms (for example, a cap-and-trade market in word limits for amicus briefs in the Supreme Court).
This paper discusses how the use of Clinical Practice Guidelines (CPGs) can improve the quality a... more This paper discusses how the use of Clinical Practice Guidelines (CPGs) can improve the quality and delivery of healthcare in America. The author states that with the passage of the Patient Protection and Affordable Care Act of 2010 the American healthcare system is in need of realignment , specifically challenging the established norms for promulgating CPGs. The article explores the legal evolution of CPGs and new legal avenues for their promulgation by examining their history and purpose. The author concludes by identifying three accountability models and arguing in favor of a private competitive regime for CPGs.
Litigant finance is a growing and increasingly controversial industry in which financial firms ad... more Litigant finance is a growing and increasingly controversial industry in which financial firms advance a plaintiff money in exchange for ownership rights in the proceeds of the legal claim on a nonrecourse basis: A plaintiff must repay the advance only if compensation is ultimately received for the legal claim. The nonrecourse nature of this funding exempts it from most states' consumer credit laws, enabling funders to charge higher interest and fees than would otherwise be permitted. When this funding involves ordinary consumers, critics of the industry contend that the uncapped interest rates exploit vulnerable litigants, while its defenders argue that the availability of these cash advances improves the welfare of consumers, especially those who have no other credit options. This funding made headlines during the recent NFL Concussion litigation, with more than one thousand players reported to have received such cash advances and with class counsel raising concerns of "predatory lending." Because the industry has not been forthcoming with facts, the larger policy debate thus far has largely relied on anecdotes and speculation. In addition, the debate has ignored the important differences between pre-and post-settlement litigant funding. This Article is the first to present systematic, large-scale data on consumer postsettlement litigant funding-the type of funding most NFL players reportedly received. We were given unrestricted access to the complete archive of sixteen years of funding applications and funding contracts from one of the largest consumer litigant funding companies in the United States. These data, which are robust and representative, enable
Comparative effectiveness research (CER) stands out as the intriguing wild card of health care re... more Comparative effectiveness research (CER) stands out as the intriguing wild card of health care reform. CER compares competing treatments against each other to determine which interventions work best, supplying critical information for medical decisionmaking and health policy. If CER works as planned, it may be one of the few reform measures in the final health care legislation that could flatten the cost curve while also improving quality. Unfortunately, health care reform has so far failed to bet smart and play the CER wild card effectively. While the Patient Protection and Affordable Care Act invests in CER at record levels and creates an entirely new regulatory framework for oversight of the research, the new law does very little to advance the difficult work of translating CER into actual medical practice. First, CER is costly to conduct and its data often raise more questions than answers. Second, the government's CER agenda seems vague and ill-defined, not consistently focusing on generating research that will help clinicians resolve immediate treatment questions. Third, and most important, physicians likely will remain indifferent to and "tune out" CER. Health law and policy are not setting the right incentives for physicians to adapt their practice patterns to CER and, in some respects, exacerbate the physician-engagement difficulties. The reasons for physician indifference to CER include: lack of financial incentives, suspicions of industry bias in the public/private oversight of the research, threats to clinical
The question of the relation between wrongful discrimination and the freedom of conscience and re... more The question of the relation between wrongful discrimination and the freedom of conscience and religion has been the subject of many debates over the past decade and has occupied both courts and the public. The most well-known legal case in that regard is likely Masterpiece Cakeshop, in which a Colorado bakery owner refused to bake a wedding cake for a homosexual couple and was sued for violating the State’s Anti-Discrimination law. Recently, the Supreme Court of the U.S has agreed to hear yet another Colorado case, 303 Creative llc v. Elenis, in which a website designer wanted to post a message saying she will not design websites for same-sex weddings. The purpose of our article is to point to a significant distinction between a refusal to serve clients on the basis of their race, gender, sexual orientation, etc., and a refusal to serve them because such service requires the providers to engage in activities or projects to which they deeply oppose. We think the latter case, sometim...
This chapter assesses theory and evidence on the efficacy of medical malpractice liability and li... more This chapter assesses theory and evidence on the efficacy of medical malpractice liability and limitations to it in improving healthcare outcomes, and identifies unresolved issues that merit further attention from scholars. First, it explores the theoretical and legal background on medical malpractice. It then turns to the available evidence by focusing on three basic areas of study: the impact of malpractice limitations on payouts and litigation, the effect of malpractice limitations on overall healthcare costs, and the effect of malpractice on two major cost drivers in the healthcare system: cardiac and obstetrics practice. It argues that limitations on liability did not and likely cannot significantly reduce healthcare costs. Finally, the chapter discusses new and important trends in the literature regarding reforms to standards of care and the role of clinical practice guidelines and communication and disclosure programs.
The Journal welcomes the submission of articles and book reviews. Both text and notes should be d... more The Journal welcomes the submission of articles and book reviews. Both text and notes should be double or triple-spaced. Submissions in electronic form are encouraged, and should be in Microsoft™ Word™ version 97 format or higher. Citations should conform to the most recent edition of A UNIFORM SYSTEM OF CITATION, published by the Harvard Law Review Association. It is the policy of the University of Connecticut to prohibit discrimination in education, employment, and in the provision of services on the basis of race, religion, sex, age, marital status, national origin, ancestry, sexual preference, status as a disabled veteran or veteran of the Vietnam Era, physical or mental disability, or record of such impairments, or mental retardation. University policy also prohibits discrimination in employment on the basis of a criminal record that is not related to the position being sought; and supports all state and federal civil rights statutes whether or not specifically cited within this statement.
This Article challenges a practice in tort law that is ubiquitous, yet little noticed-namely the ... more This Article challenges a practice in tort law that is ubiquitous, yet little noticed-namely the use of race-based wage, life expectancy, and work-life expectancy tables when calculating damage awards. The practice results in damage awards that are significantly lower for black victims than for white victims and creates an incentive for potential tortfeasors to allocate risk disproportionately to minority communities. This Article argues that the use of such tables is not only unfair; it is unconstitutional. Specifically, the Article argues that the use of race-based tables to calculate tort damages violates the Equal Protection Clause of the Fourteenth Amendment. The Article goes on to consider the broader implications of this argument and to explain why the move to truly race-neutral damage awards would require even more radical changes to our current tort system.
On March 24, 2015, French air traffic control lost radio contact with Germanwings Flight 9525 sho... more On March 24, 2015, French air traffic control lost radio contact with Germanwings Flight 9525 shortly after the aircraft reached a height of about 6,000 feet. 1 Andreas Lubitz, the co-pilot of the aircraft, had locked himself in the cockpit and was leading the aircraft on a fatal descent from its cruising altitude of 38,000 feet. 2 The pilot, who left Lubitz alone in the cockpit while taking a bathroom break, attempted to hack through the locked cockpit door with an axe while futilely screaming at Lubitz to open the door. 3 Flight 9525 crashed in a remote area in the French Alps, killing all 150 people on board. Post-crash investigations revealed that Lubitz had been treated for severe depression and suicidal tendencies, and that Lubitz even took a break from the Lufthansa flight school to treat a serious depressive episode.
Injunctions have often been viewed as mere "off switches" that prevent future violation... more Injunctions have often been viewed as mere "off switches" that prevent future violations of rights protected by so-called property rules. But injunctions in fact come in a variety of forms having different objects, scopes, and degrees of effectiveness. In practical situations, an injunction might amount to little more than a threat of higher-than-normal monetary sanctions delivered at sub-stantially higher-than-normal speed. This Article builds on these insights by investigating the potential and actual scopes of injunctions against patent infringement. An economic model for infringer incentives shows how concerns of injunction scope are substantially analogous to widely examined concerns of patent scope. A new taxonomy provides named classifications for different forms of injunctions. A systematic study of patent-infringement injunctions issued by U.S. district courts in 2010 indicates how often these different forms appear in practice. Startlingly, this study suggests th...
Are darker-skinned workers discriminated against in the labor market? Studies using survey data h... more Are darker-skinned workers discriminated against in the labor market? Studies using survey data have shown that darker skin tone is associated with increased labor market disadvantages. However, it is hard to refute the possibility that other factors correlated with skin tones might affect employment outcomes. To overcome this inherent limitation, we use a natural experiment: we utilize changes in one's own skin tone, generated by exposure to the sun, to explore the effect of skin tone on the tendency to be employed. We find that those people whose skin tone becomes darker by exposure to the sun (but not others) are less likely to be employed when the UV radiation in the previous three weeks in the area in which they reside is greater. These within-person findings hold even when controlling for the week, the year, the region, demographic characteristics and the occupation and industry one is employed in.
Tragedy of the human commons is a special case of tragedy of the commons in which the common reso... more Tragedy of the human commons is a special case of tragedy of the commons in which the common resource is composed of human beings. Because humans, unlike trees or fish, behave strategically and because the welfare of humans, unlike that of trees or fish, matters for its own sake, tragedy of the human commons presents different problems and can be solved in different ways. In this Article, we explore - and solve - one important example of tragedy of the human commons: health insurers' failure to make long-term investments in improving the health of their common resource, the pool of insureds who switch among health insurers. We make three major contributions in this Article. First, we describe the unique characteristics of the tragedy of the human commons. We show that this distinction both complicates analysis of commons problems and makes available a variety of solutions unavailable in regular commons. Second, we develop a rich theoretical framework of possible solutions to the...
תקציר בעברית: מאמר זה נכתב לקראת הדיון הנוסף בעניין זליגמן אשר עלול להוות נקודת תפנית בבחינת פרשנ... more תקציר בעברית: מאמר זה נכתב לקראת הדיון הנוסף בעניין זליגמן אשר עלול להוות נקודת תפנית בבחינת פרשנות הרשות המינהלית, בנסותו לכאורה לייבא את הגישה האמריקאית המעניקה מתחם של כבוד (deference) לרשות בפרשנותה. אף שפסק הדין התיימר לשנות את המצב הקיים רק ביחס לפרשנות הרשות להנחיותיה, קיים חשש כי הוא עלול להוות שלב נוסף בהליך ריסונו של בית המשפט בדרך של מתן בכורה פרשנית לרשות המינהלית בפרשנות חקיקה ראשית ומשנית גם כן. אך ההחלקה במדרון של מימד זה- אותו אני מכנה המימד הנורמטיבי - אינה הבעיה היחידה בו. הסכנה היא גם מהחלקה במדרונות של שלושה מימדים נוספים אותם אני מכנה: המימד ההירארכי, המימד המהותי ומימד היסודיות. בעיקר החשש הוא במימד המהותי שתינתן בכורה פרשנית לרשות שאינה מומחית גם בנושאים הקשורים בסדרי שלטון ומשפט וזכויות אדם. באמצעות מקרה בוחן של פרשנות פרק חוזה ביטוח בחוק שוויון זכויות לאנשים עם מוגבלות אני מראה כי למעבר ל"מתחם של כבוד" עלולות להיות השלכות הרות גורל ואין מדובר במעבר אקספרסיבי בלבד. באותו המקרה פרשנותה של רשות שוק ההון, הביטוח והחיסכון (רשות אשר אינה מתמחה בהגנה על ז...
Law. † Kyle Logue provided invaluable support. I thank the participants of the Canadian Law and E... more Law. † Kyle Logue provided invaluable support. I thank the participants of the Canadian Law and Economics Association Annual Meeting (Toronto, 2004) for their helpful comments. A previous version of this paper was presented at the Stanford/Yale junior faculty forum in May 2003; I would like to thank Jennifer Arlen for her comments at that forum. I thank the faculty of Northwestern, Cornell, and Cardozo law schools for helpful comments. I also wish to thank Omri Ben-Shahar, David Lee, Phoebe Ellsworth, Jim Krier, Max Schanzenbach, Uzi Segal, and Frank Yates. Lastly, I want to thank the John M. Olin Center for Law and Economics at the University of Michigan Law School for financial support. 1 See Eleanor D. Kinney, 'Malpractice Reform in the 1990s: Past Disappointments, Future Success?' (1995) 20 J. Health Pol. 99, which summarizes recent federal efforts to reform pain-and-suffering damages. President Bush has urged Congress at least six times to impose substantial nationwide restrictions on medical malpractice cases, including a cap on pain-and-suffering damages of over $250 000. See Mike Allen & Amy Goldstein, 'Bush Urges Malpractice Damage Limits; Plan Includes Goals Sought by Business' The Washington Post (26 July 2002) A4. Bush's plan would override laws in states that have set higher limits.
Sometimes the rules let you change the rules. In civil procedure, many rules are famously rigid-f... more Sometimes the rules let you change the rules. In civil procedure, many rules are famously rigid-for example, neither the parties nor the judge can stipulate to subject matter jurisdiction-but closer inspection yields many ways that judges or parties (individually or by agreement) can change procedural defaults, such as the number of depositions, trial by judge or jury, or sometimes even jurisdiction. Whether the judge or parties have "flexibility" to change the rules of the game is an important, but understudied, aspect of procedure. This Article is the first to document the full spectrum of procedural flexibilitythe varied and sometimes surprising range of ways in which judges and parties can modify procedure in their cases. We show that procedural flexibility spans a broad spectrum from rigid inflexibility, to contracts that modify procedure, to unilateral control over procedure, and beyond, to a new frontier of innovations-buying and selling of procedures between parties in different cases, and markets or auctions for everything from depositions to jury trials. Some of these possibilities seem radical, but we show that, contrary to conventional wisdom, current civil practice already permits similarly radical flexing of procedure. As a normative matter, we argue that even radical forms of flexibility (like markets in procedure) cannot be ruled out based on familiar normative criteria such as efficient dispute resolution, norm creation, distributive justice, or facilitation of
Current tort law contains incentives to target individuals and communities based on race and gend... more Current tort law contains incentives to target individuals and communities based on race and gender. Surprisingly, the basis for such targeting is the seemingly neutral use of three different race-and gender-based statistical tables (for wages, life expectancy, and worklife expectancy) which, when used in tort damage calculations, result in a great disparity between damages awarded to whites versus blacks and men versus women. Thus, tort law's remedial damage scheme perpetuates existing racial and gender inequalities by compensating individuals (especially children) based on their race and gender. Even worse, tort law creates ex ante incentives for potential tortfeasors to engage in future discriminatory targeting of women and minorities. We provide the first full account of courts' existing discriminatory practices. We then address the deficiencies in the nonblended tables that courts use (tables that use race and gender as discriminating factors) and the reasons behind their continued use. We show how the various theories of tort law (corrective justice, distributive justice, and economic efficiency) have contributed to a misunderstanding of the proper damages calculation and illustrate how the very same theories can be used to engender a change in the current praxis. We then challenge the conventional wisdom that the use of race-and gender-based tables is justified on efficiency grounds, noting fatal flaws inherent in the tables, in how they are used in courts to calculate damages for individuals, and in the incentives they create.
Civil procedure serves a multitude of goals, from regulating the cost of fact gathering, to dicta... more Civil procedure serves a multitude of goals, from regulating the cost of fact gathering, to dictating the rules of advocacy in court, to promoting public participation in trials. To what extent can procedural design serve them all, or must rules sacrifice some interests to serve others? In this paper, we are the first to introduce a theory of procedure design that answers this question. We build upon the fundamental insight that the goals of civil procedure, as varied as they are, all occupy a common conceptual space-each addresses an externality, positive or negative, that litigation creates. This insight allows us to tie together distinct strands of scholarship on procedural design, develop a taxonomy of externalities that civil procedure addresses, and propose (sometimes radical) reforms that would allow procedure to serve more of its goals at once. First, we show that the literature on procedural design has unraveled into three distinct strands. The first strand centers on the interest in reducing cost and delay in litigation. The second strand centers on the interests in limiting gamesmanship between the parties and improving court accuracy in decisionmaking. The third strand centers on the many related interests in the positive effects of procedure on society such as the development of legal precedent, deterring unwanted (primary) behavior and so on. Second, we tie together these strands of the literature by observing that each strand is focused on how procedure can address one type of externality. The first strand of the literature addresses what we call system externalities-the effects of actions on other cases in the same court or court system. The second strand addresses what we call strategic externalities-the effects of a party's actions on opposing parties in the same case. The third strand implicate external effects on society as a whole, which we call public goods externalities. Third and most ambitiously, we show that these three types of externalities give us a three-dimensional framework for procedural design. In this framework, we see how different aspects of procedure implicate one externality, or another, or two or three externalities at once. This in turn points the way toward opportunities to introduce procedural reforms tailored to types of externalities at issue. Our solutions range from surprising forms of judicial command-and-control (for example, the Supreme Court prohibiting parties from settling), to fees and subsidies (for example, a fund for judicially appointed neutral experts in important cases), to radical market-based reforms (for example, a cap-and-trade market in word limits for amicus briefs in the Supreme Court).
This paper discusses how the use of Clinical Practice Guidelines (CPGs) can improve the quality a... more This paper discusses how the use of Clinical Practice Guidelines (CPGs) can improve the quality and delivery of healthcare in America. The author states that with the passage of the Patient Protection and Affordable Care Act of 2010 the American healthcare system is in need of realignment , specifically challenging the established norms for promulgating CPGs. The article explores the legal evolution of CPGs and new legal avenues for their promulgation by examining their history and purpose. The author concludes by identifying three accountability models and arguing in favor of a private competitive regime for CPGs.
Litigant finance is a growing and increasingly controversial industry in which financial firms ad... more Litigant finance is a growing and increasingly controversial industry in which financial firms advance a plaintiff money in exchange for ownership rights in the proceeds of the legal claim on a nonrecourse basis: A plaintiff must repay the advance only if compensation is ultimately received for the legal claim. The nonrecourse nature of this funding exempts it from most states' consumer credit laws, enabling funders to charge higher interest and fees than would otherwise be permitted. When this funding involves ordinary consumers, critics of the industry contend that the uncapped interest rates exploit vulnerable litigants, while its defenders argue that the availability of these cash advances improves the welfare of consumers, especially those who have no other credit options. This funding made headlines during the recent NFL Concussion litigation, with more than one thousand players reported to have received such cash advances and with class counsel raising concerns of "predatory lending." Because the industry has not been forthcoming with facts, the larger policy debate thus far has largely relied on anecdotes and speculation. In addition, the debate has ignored the important differences between pre-and post-settlement litigant funding. This Article is the first to present systematic, large-scale data on consumer postsettlement litigant funding-the type of funding most NFL players reportedly received. We were given unrestricted access to the complete archive of sixteen years of funding applications and funding contracts from one of the largest consumer litigant funding companies in the United States. These data, which are robust and representative, enable
Comparative effectiveness research (CER) stands out as the intriguing wild card of health care re... more Comparative effectiveness research (CER) stands out as the intriguing wild card of health care reform. CER compares competing treatments against each other to determine which interventions work best, supplying critical information for medical decisionmaking and health policy. If CER works as planned, it may be one of the few reform measures in the final health care legislation that could flatten the cost curve while also improving quality. Unfortunately, health care reform has so far failed to bet smart and play the CER wild card effectively. While the Patient Protection and Affordable Care Act invests in CER at record levels and creates an entirely new regulatory framework for oversight of the research, the new law does very little to advance the difficult work of translating CER into actual medical practice. First, CER is costly to conduct and its data often raise more questions than answers. Second, the government's CER agenda seems vague and ill-defined, not consistently focusing on generating research that will help clinicians resolve immediate treatment questions. Third, and most important, physicians likely will remain indifferent to and "tune out" CER. Health law and policy are not setting the right incentives for physicians to adapt their practice patterns to CER and, in some respects, exacerbate the physician-engagement difficulties. The reasons for physician indifference to CER include: lack of financial incentives, suspicions of industry bias in the public/private oversight of the research, threats to clinical
The question of the relation between wrongful discrimination and the freedom of conscience and re... more The question of the relation between wrongful discrimination and the freedom of conscience and religion has been the subject of many debates over the past decade and has occupied both courts and the public. The most well-known legal case in that regard is likely Masterpiece Cakeshop, in which a Colorado bakery owner refused to bake a wedding cake for a homosexual couple and was sued for violating the State’s Anti-Discrimination law. Recently, the Supreme Court of the U.S has agreed to hear yet another Colorado case, 303 Creative llc v. Elenis, in which a website designer wanted to post a message saying she will not design websites for same-sex weddings. The purpose of our article is to point to a significant distinction between a refusal to serve clients on the basis of their race, gender, sexual orientation, etc., and a refusal to serve them because such service requires the providers to engage in activities or projects to which they deeply oppose. We think the latter case, sometim...
This chapter assesses theory and evidence on the efficacy of medical malpractice liability and li... more This chapter assesses theory and evidence on the efficacy of medical malpractice liability and limitations to it in improving healthcare outcomes, and identifies unresolved issues that merit further attention from scholars. First, it explores the theoretical and legal background on medical malpractice. It then turns to the available evidence by focusing on three basic areas of study: the impact of malpractice limitations on payouts and litigation, the effect of malpractice limitations on overall healthcare costs, and the effect of malpractice on two major cost drivers in the healthcare system: cardiac and obstetrics practice. It argues that limitations on liability did not and likely cannot significantly reduce healthcare costs. Finally, the chapter discusses new and important trends in the literature regarding reforms to standards of care and the role of clinical practice guidelines and communication and disclosure programs.
The Journal welcomes the submission of articles and book reviews. Both text and notes should be d... more The Journal welcomes the submission of articles and book reviews. Both text and notes should be double or triple-spaced. Submissions in electronic form are encouraged, and should be in Microsoft™ Word™ version 97 format or higher. Citations should conform to the most recent edition of A UNIFORM SYSTEM OF CITATION, published by the Harvard Law Review Association. It is the policy of the University of Connecticut to prohibit discrimination in education, employment, and in the provision of services on the basis of race, religion, sex, age, marital status, national origin, ancestry, sexual preference, status as a disabled veteran or veteran of the Vietnam Era, physical or mental disability, or record of such impairments, or mental retardation. University policy also prohibits discrimination in employment on the basis of a criminal record that is not related to the position being sought; and supports all state and federal civil rights statutes whether or not specifically cited within this statement.
This Article challenges a practice in tort law that is ubiquitous, yet little noticed-namely the ... more This Article challenges a practice in tort law that is ubiquitous, yet little noticed-namely the use of race-based wage, life expectancy, and work-life expectancy tables when calculating damage awards. The practice results in damage awards that are significantly lower for black victims than for white victims and creates an incentive for potential tortfeasors to allocate risk disproportionately to minority communities. This Article argues that the use of such tables is not only unfair; it is unconstitutional. Specifically, the Article argues that the use of race-based tables to calculate tort damages violates the Equal Protection Clause of the Fourteenth Amendment. The Article goes on to consider the broader implications of this argument and to explain why the move to truly race-neutral damage awards would require even more radical changes to our current tort system.
On March 24, 2015, French air traffic control lost radio contact with Germanwings Flight 9525 sho... more On March 24, 2015, French air traffic control lost radio contact with Germanwings Flight 9525 shortly after the aircraft reached a height of about 6,000 feet. 1 Andreas Lubitz, the co-pilot of the aircraft, had locked himself in the cockpit and was leading the aircraft on a fatal descent from its cruising altitude of 38,000 feet. 2 The pilot, who left Lubitz alone in the cockpit while taking a bathroom break, attempted to hack through the locked cockpit door with an axe while futilely screaming at Lubitz to open the door. 3 Flight 9525 crashed in a remote area in the French Alps, killing all 150 people on board. Post-crash investigations revealed that Lubitz had been treated for severe depression and suicidal tendencies, and that Lubitz even took a break from the Lufthansa flight school to treat a serious depressive episode.
Injunctions have often been viewed as mere "off switches" that prevent future violation... more Injunctions have often been viewed as mere "off switches" that prevent future violations of rights protected by so-called property rules. But injunctions in fact come in a variety of forms having different objects, scopes, and degrees of effectiveness. In practical situations, an injunction might amount to little more than a threat of higher-than-normal monetary sanctions delivered at sub-stantially higher-than-normal speed. This Article builds on these insights by investigating the potential and actual scopes of injunctions against patent infringement. An economic model for infringer incentives shows how concerns of injunction scope are substantially analogous to widely examined concerns of patent scope. A new taxonomy provides named classifications for different forms of injunctions. A systematic study of patent-infringement injunctions issued by U.S. district courts in 2010 indicates how often these different forms appear in practice. Startlingly, this study suggests th...
Are darker-skinned workers discriminated against in the labor market? Studies using survey data h... more Are darker-skinned workers discriminated against in the labor market? Studies using survey data have shown that darker skin tone is associated with increased labor market disadvantages. However, it is hard to refute the possibility that other factors correlated with skin tones might affect employment outcomes. To overcome this inherent limitation, we use a natural experiment: we utilize changes in one's own skin tone, generated by exposure to the sun, to explore the effect of skin tone on the tendency to be employed. We find that those people whose skin tone becomes darker by exposure to the sun (but not others) are less likely to be employed when the UV radiation in the previous three weeks in the area in which they reside is greater. These within-person findings hold even when controlling for the week, the year, the region, demographic characteristics and the occupation and industry one is employed in.
Tragedy of the human commons is a special case of tragedy of the commons in which the common reso... more Tragedy of the human commons is a special case of tragedy of the commons in which the common resource is composed of human beings. Because humans, unlike trees or fish, behave strategically and because the welfare of humans, unlike that of trees or fish, matters for its own sake, tragedy of the human commons presents different problems and can be solved in different ways. In this Article, we explore - and solve - one important example of tragedy of the human commons: health insurers' failure to make long-term investments in improving the health of their common resource, the pool of insureds who switch among health insurers. We make three major contributions in this Article. First, we describe the unique characteristics of the tragedy of the human commons. We show that this distinction both complicates analysis of commons problems and makes available a variety of solutions unavailable in regular commons. Second, we develop a rich theoretical framework of possible solutions to the...
תקציר בעברית: מאמר זה נכתב לקראת הדיון הנוסף בעניין זליגמן אשר עלול להוות נקודת תפנית בבחינת פרשנ... more תקציר בעברית: מאמר זה נכתב לקראת הדיון הנוסף בעניין זליגמן אשר עלול להוות נקודת תפנית בבחינת פרשנות הרשות המינהלית, בנסותו לכאורה לייבא את הגישה האמריקאית המעניקה מתחם של כבוד (deference) לרשות בפרשנותה. אף שפסק הדין התיימר לשנות את המצב הקיים רק ביחס לפרשנות הרשות להנחיותיה, קיים חשש כי הוא עלול להוות שלב נוסף בהליך ריסונו של בית המשפט בדרך של מתן בכורה פרשנית לרשות המינהלית בפרשנות חקיקה ראשית ומשנית גם כן. אך ההחלקה במדרון של מימד זה- אותו אני מכנה המימד הנורמטיבי - אינה הבעיה היחידה בו. הסכנה היא גם מהחלקה במדרונות של שלושה מימדים נוספים אותם אני מכנה: המימד ההירארכי, המימד המהותי ומימד היסודיות. בעיקר החשש הוא במימד המהותי שתינתן בכורה פרשנית לרשות שאינה מומחית גם בנושאים הקשורים בסדרי שלטון ומשפט וזכויות אדם. באמצעות מקרה בוחן של פרשנות פרק חוזה ביטוח בחוק שוויון זכויות לאנשים עם מוגבלות אני מראה כי למעבר ל"מתחם של כבוד" עלולות להיות השלכות הרות גורל ואין מדובר במעבר אקספרסיבי בלבד. באותו המקרה פרשנותה של רשות שוק ההון, הביטוח והחיסכון (רשות אשר אינה מתמחה בהגנה על ז...
Law. † Kyle Logue provided invaluable support. I thank the participants of the Canadian Law and E... more Law. † Kyle Logue provided invaluable support. I thank the participants of the Canadian Law and Economics Association Annual Meeting (Toronto, 2004) for their helpful comments. A previous version of this paper was presented at the Stanford/Yale junior faculty forum in May 2003; I would like to thank Jennifer Arlen for her comments at that forum. I thank the faculty of Northwestern, Cornell, and Cardozo law schools for helpful comments. I also wish to thank Omri Ben-Shahar, David Lee, Phoebe Ellsworth, Jim Krier, Max Schanzenbach, Uzi Segal, and Frank Yates. Lastly, I want to thank the John M. Olin Center for Law and Economics at the University of Michigan Law School for financial support. 1 See Eleanor D. Kinney, 'Malpractice Reform in the 1990s: Past Disappointments, Future Success?' (1995) 20 J. Health Pol. 99, which summarizes recent federal efforts to reform pain-and-suffering damages. President Bush has urged Congress at least six times to impose substantial nationwide restrictions on medical malpractice cases, including a cap on pain-and-suffering damages of over $250 000. See Mike Allen & Amy Goldstein, 'Bush Urges Malpractice Damage Limits; Plan Includes Goals Sought by Business' The Washington Post (26 July 2002) A4. Bush's plan would override laws in states that have set higher limits.
Uploads
Papers by Ronen Avraham