The Positive Economic Theory of Tort Law

2019 ◽  
Author(s):  
Mark F. Grady
Keyword(s):  
Economic Theory ◽  
Tort Law ◽  
The United States ◽  
Positive Theory ◽  
Norman Conquest ◽  
Legal Rules ◽  
System P ◽  
Tort System ◽  
The Cost ◽  
Fresh Insight

Tort law is part of the common law that originated in England after the Norman Conquest and spread throughout the world, including to the United States. It is judge-made law that allows people who have been injured by others to sue those who harmed them and collect damages in proper cases. Since its early origins, tort law has evolved considerably and has become a full-fledged “grown order,” like the economy, and can best be understood by positive theory, also like the economy. Economic theories of tort have developed since the early 1970s, and they too have evolved over time. Their objective is to generate fresh insight about the purposes and the workings of the tort system. The basic thesis of the economic theory is that tort law creates incentives for people to minimize social cost, which is comprised of the harm produced by torts and the cost of the precautions necessary to prevent torts. This thesis, intentionally simple, generates many fresh insights about the workings and effects of the tort system and even about the actual legal rules that judges have developed. In an evolved grown order, legal rules are far less concrete than most people would expect though often very clear in application. Beginning also in the 1970s, legal philosophers have objected to the economic theory of tort and have devised philosophical theories that compete. The competition, moreover, has been productive because it has spurred both sides to revise and improve their theories and to seek better to understand the law. Tort law is diverse, applicable to many different activities and situations, so developing a positive theory about it is both challenging and rewarding.

Punitive Damages: New Twists in Torts

1991 ◽  
Vol 1 (3) ◽  
pp. 269-291 ◽  
Author(s):  
Clarence C. Walton
Keyword(s):  
Tort Law ◽  
The United States ◽  
Punitive Damage ◽  
Punitive Damages ◽  
The Public ◽  
Public Purse ◽  
Local Organizations ◽  
Compensation Systems ◽  
Tort System ◽  
American Law

While jurisprudence in the United States has been cast in the general mode of the English common law, modifications over time have produced enough significant variations that American law has a distinctive quality. To illustrate: The exclusionary rule in criminal cases prohibiting the use of evidence (even from reliable witnesses) acquired through illegal search, is not followed in Britain—or, for that matter, in Canada, Germany, and Israel. The punitive-damage concept (PD) in tort law is also a jurisprudential novelty. Punitive damages are imposed in addition to compensatory awards given to tort victims to warn manufacturers and sellers to be careful in their safety and marketing practices. PDs are society's warning signals: Seller beware! Because they are one of society's ways to protect itself, PDs have recently been considered as fines which, to prevent excesses, should be under the rubric of the Eighth Amendment.This essay introduces new elements into the discussion on torts by hypothesizing (1) PDs are fines which belong to the public purse; (2) that expenditures from the public purse should be given to local organizations (like orphanages and inner-city hospitals) which provide vital services for those unable to pay; and (3) that the victim (or the victim's survivor) has a right to designate what local organizations should benefit from his or her punitive-damage awards.The hypotheses require reexamination of the concepts of citizenship, community, and work, respectively.Tort law is an integral part of the American law of injuries, a body of judicial doctrine and legislation and a set of legal arrangements that also include compensation systems and safety legislation. It would have been unthinkable as recently as twenty-five years ago that the tort system would become a source of bitter contention. Today, however, it generates sharp rhetoric and dramatic proposals for change to address its contested problems, as well as strong views in favor of continuing the system essentially intact so as not to disturb its contended benefits.

The Medical Malpractice Litigation System

2021 ◽  
pp. 51-74
Author(s):  
Michael J. Saks ◽  
Stephan Landsman
Keyword(s):  
Adverse Events ◽  
Economic Analysis ◽  
Medical Malpractice ◽  
Great Majority ◽  
Tort Law ◽  
Malpractice Litigation ◽  
Legal Response ◽  
System P ◽  
Litigation Process ◽  
Tort System

“The Medical Malpractice Litigation System” provides a description of the conventional legal response to negligent adverse events. First, it discusses the origins, nature, and purposes (usually given as compensation and deterrence) of the tort system; explains the economic analysis of tort law (including the concept of negligence), and describes some of the specialized rules that apply only to medical malpractice torts. Most of the chapter is a data-based walk-through of the stages of the malpractice litigation process, including the proportion of cases that enter and proceed through each stage: initiation of claims (including attorney screening), pretrial disposition, trials, verdicts, compensation awards, and adjustments following verdicts. The evidence shows that the great majority of negligently caused injuries never enter the system, trials are rare, and negotiation plays so great a part that the system is best characterized as one of “litigotiation.”

scholarly journals Are the U.S. Patent Priority Rules Really Necessary?

2016 ◽  
Author(s):  
Mark Lemley
Keyword(s):  
File System ◽  
The United States ◽  
First Person ◽  
Court Cases ◽  
Priority Rules ◽  
Legal Standards ◽  
System P ◽  
The Cost ◽  
The U.S

The United States is the only country in the world that awards patents tothe first person to invent something, rather than the first to file apatent application. In order to determine who is first to invent, theUnited States has created an elaborate set of "interference" proceedingsand legal standards to define invention and decide how it may be proven.Supporters of this system claim that it is necessary to protect smallinventors, who may not have the resources to file patent applicationsquickly, and may therefore lose a patent race to large companies whoinvented after they did. Advocates of global patent harmonization havesuggested, however, that the first inventor is usually also the first tofile, and that the first-to-invent standard is unnecessary and wasteful.In this Article, we study U.S. Patent and Trademark Office ("PTO")interference proceedings and court cases in which the parties dispute whois first to invent. We find that the first person to file is usually, butby no means always, also the first to invent. In over 40% of the cases, thefirst to invent is last to file. We also find that the long-standing rulethat discriminated against foreign inventors by requiring proof ofinventive activity in the U.S. had surprisingly little effect on outcomes;that a large number of priority disputes involve near-simultaneousinvention; and that the vast majority of such disputes could be resolvedwithout reliance on much of the evidence the law permits. Finally, we studythe role of small inventors to see whether they are disproportionately thebeneficiaries of the first to invent system. While the evidence is mixed,it does not appear that small inventors particularly benefit from the firstto invent system.Part I describes the legal background for the international debate over howto determine patent priority. Part II describes our studies and discussesour results in detail. Finally, Part III draws conclusions forpolicy-makers from the data. There is some truth to the arguments of bothsides in this debate. The first to invent system does produce significantlydifferent results in individual cases than a first to file system would.But it is not clear that those different results are particularly fairer,or that they are worth the cost. We suggest some possible ways to modifythe U.S. system to take account of these facts without changing entirely toa first-to-file system.

Western versus Asian Laws on Corporate Governance

2015 ◽  
Author(s):  
Hideki Kanda
Keyword(s):  
Corporate Governance ◽  
Insider Trading ◽  
The United States ◽  
Corporate Law ◽  
Legal Rules ◽  
Accounting Rules ◽  
International Convergence ◽  
The Cost ◽  
The Relationship

This chapter examines the issue of when laws do and do not converge in the field of corporate governance, with particular emphasis on the cost of enforcement and the role of enforcement in international convergence. Focusing on Western versus Asian laws on corporate governance, it considers when, how, and why legal rules change and whether transplantation of legal rules from Western countries has been successful. It also explores the relationship between enforcement and substantive legal rules, mainly by comparing laws in Japan and the United States. Finally, it discusses three areas relating to corporate governance: the regulation of insider trading, financial disclosure and accounting rules, and corporate law rules on governance.

Demonstrating Nutrient Cost Gradients: A Brooklyn Case Study

2014 ◽  
Vol 84 (5-6) ◽  
pp. 244-251 ◽  
Author(s):  
Robert J. Karp ◽  
Gary Wong ◽  
Marguerite Orsi
Keyword(s):  
Low Income ◽  
Energy Content ◽  
Food Selection ◽  
The United States ◽  
United States Department ◽  
Micronutrient Deficiencies ◽  
Caloric Density ◽  
Low Income Families ◽  
The Cost ◽  
The Impact

Abstract. Introduction: Foods dense in micronutrients are generally more expensive than those with higher energy content. These cost-differentials may put low-income families at risk of diminished micronutrient intake. Objectives: We sought to determine differences in the cost for iron, folate, and choline in foods available for purchase in a low-income community when assessed for energy content and serving size. Methods: Sixty-nine foods listed in the menu plans provided by the United States Department of Agriculture (USDA) for low-income families were considered, in 10 domains. The cost and micronutrient content for-energy and per-serving of these foods were determined for the three micronutrients. Exact Kruskal-Wallis tests were used for comparisons of energy costs; Spearman rho tests for comparisons of micronutrient content. Ninety families were interviewed in a pediatric clinic to assess the impact of food cost on food selection. Results: Significant differences between domains were shown for energy density with both cost-for-energy (p < 0.001) and cost-per-serving (p < 0.05) comparisons. All three micronutrient contents were significantly correlated with cost-for-energy (p < 0.01). Both iron and choline contents were significantly correlated with cost-per-serving (p < 0.05). Of the 90 families, 38 (42 %) worried about food costs; 40 (44 %) had chosen foods of high caloric density in response to that fear, and 29 of 40 families experiencing both worry and making such food selection. Conclusion: Adjustments to USDA meal plans using cost-for-energy analysis showed differentials for both energy and micronutrients. These differentials were reduced using cost-per-serving analysis, but were not eliminated. A substantial proportion of low-income families are vulnerable to micronutrient deficiencies.

Use of cold tolerant eucalyptus species as a partial replacement for southern mixed hardwoods

TAPPI Journal ◽  
2012 ◽  
Vol 11 (7) ◽  
pp. 29-35 ◽  
Author(s):  
PETER W. HART ◽  
DALE E. NUTTER
Keyword(s):  
Potential Method ◽  
The United States ◽  
Partial Replacement ◽  
Growth Time ◽  
Eucalyptus Species ◽  
Cold Tolerant ◽  
Hardwood Pulp ◽  
Time Required ◽  
The Cost ◽  
Operational Data

During the last several years, the increasing cost and decreasing availability of mixed southern hardwoods have resulted in financial and production difficulties for southern U.S. mills that use a significant percentage of hardwood kraft pulp. Traditionally, in the United States, hardwoods are not plantation grown because of the growth time required to produce a quality tree suitable for pulping. One potential method of mitigating the cost and supply issues associated with the use of native hardwoods is to grow eucalyptus in plantations for the sole purpose of producing hardwood pulp. However, most of the eucalyptus species used in pulping elsewhere in the world are not capable of surviving in the southern U.S. climate. This study examines the potential of seven different cold-tolerant eucalyptus species to be used as replacements for, or supplements to, mixed southern hardwoods. The laboratory pulping and bleaching aspects of these seven species are discussed, along with pertinent mill operational data. Selected mill trial data also are reviewed.

The Unusual Cruelty of Nursing Homes Behind Bars

2020 ◽  
Vol 32 (5) ◽  
pp. 264-271
Author(s):  
Rachel E. López
Keyword(s):  
Nursing Homes ◽  
Human Dignity ◽  
Prison Population ◽  
Financial Burden ◽  
The Elderly ◽  
The United States ◽  
Term Care ◽  
Trained Staff ◽  
State Prisons ◽  
The Cost

The elderly prison population continues to rise along with higher rates of dementia behind bars. To maintain the detention of this elderly population, federal and state prisons are creating long-term care units, which in turn carry a heavy financial burden. Prisons are thus gearing up to become nursing homes, but without the proper trained staff and adequate financial support. The costs both to taxpayers and to human dignity are only now becoming clear. This article squarely addresses the second dimension of this carceral practice, that is the cost to human dignity. Namely, it sets out why indefinitely incarcerating someone with dementia or other neurocognitive disorders violates the Eighth Amendment of the United States Constitution’s prohibition on cruel and unusual punishment. This conclusion derives from the confluence of two lines of U.S. Supreme Court precedent. First, in Madison v. Alabama, the Court recently held that executing someone (in Madison’s case someone with dementia) who cannot rationally understand their sentence amounts to cruel and unusual punishment. Second, in line with Miller v. Alabama, which puts life without parole (LWOP) sentences in the same class as death sentences due to their irrevocability, this holding should be extended to LWOP sentences. Put another way, this article explains why being condemned to life is equivalent to death for someone whose neurodegenerative disease is so severe that they cannot rationally understand their punishment.

Strike Ballots, Democracy, and Law

2020 ◽  
Author(s):  
Breen Creighton ◽  
Catrina Denvir ◽  
Richard Johnstone ◽  
Shae McCrystal ◽  
Alice Orchiston
Keyword(s):  
United Kingdom ◽  
The United States ◽  
International Labour Organisation ◽  
Human Right ◽  
Strike Activity ◽  
Legal Rules ◽  
Worked Example ◽  
The United Kingdom ◽  
Democratic Rights ◽  
The Right

The purpose of the research upon which this book is based was empirically to investigate whether the ballot requirements in the Fair Work Act do indeed impose a significant obstacle to the taking of industrial action, and whether those provisions are indeed impelled by a legitimate ‘democratic imperative’. The book starts from the proposition that virtually all national legal systems, and international law, recognise the right to strike as a fundamental human right. It acknowledges, however, that in no case is this recognition without qualification. Amongst the most common qualifications is a requirement that to be lawful strike action must first be approved by a ballot of workers concerned. Often, these requirements are said to be necessary to protect the democratic rights of the workers concerned: this is the so-called ‘democratic imperative’. In order to evaluate the true purpose and effect of ballot requirements the book draws upon the detailed empirical study of the operation of the Australian legislative provisions noted above; a comparative analysis of law and practice in a broad range of countries, with special reference to Canada, South Africa, the United Kingdom and the United States; and the jurisprudence of the supervisory bodies of the International Labour Organisation. It finds that in many instances ballot requirements – especially those relating to quorum – are more concerned with curtailing strike activity than with constructively responding to the democratic imperative. Frequently, they also proceed from a distorted perception of what ‘democracy’ could and should entail in an industrial context. Paradoxically, the study also finds that in some contexts ballot requirements can provide additional bargaining leverage for unions. Overall, however, the study confirms our hypothesis that the principal purpose of ballot requirements – especially in Australia and the United Kingdom – is to curtail strike activity rather than to vindicate the democratic imperative, other than on the basis of a highly attenuated reading of that term. We believe that the end-result constitutes an important study of the practical operation of a complex set of legal rules, and one which exposes the dichotomy between the ostensible and real objectives underpinning the adoption of those rules. It also furnishes a worked example of multi-methods empirical, comparative and doctrinal legal research in law, which we hope will inspire similar approaches to other areas of labour law.

The Child Protection System

2019 ◽  
pp. 391-414
Author(s):  
Richard J. Gelles
Keyword(s):  
Child Protection ◽  
The United States ◽  
Family Preservation ◽  
Child Protective Service ◽  
Protective Service ◽  
System P ◽  
Abuse And Neglect ◽  
Protective System ◽  
The Common ◽  
Home Placement

This chapter examines the child protective system in the United States by first examining the scaffolding created by federal legislation and federal funding. Next, it reviews three significant Supreme Court decisions that bear on the operation of child protective service systems. Lastly, it examines the common process and flow of individual cases of child abuse and neglect from initial reporting, through investigation, service response, possible out-of-home placement, and finally decisions regarding when and why to close the case. The conclusion discusses the three core goals of the child protective service system: safety and wellbeing of children; permanency of caregiving; and family preservation.

scholarly journals Autism Tsunami: the Impact of Rising Prevalence on the Societal Cost of Autism in the United States

2021 ◽  
Author(s):  
Mark Blaxill ◽  
Toby Rogers ◽  
Cynthia Nevison
Keyword(s):  
Forecast Model ◽  
The United States ◽  
Population Projections ◽  
Base Case ◽  
Prevention Strategies ◽  
Total Base ◽  
Cost Categories ◽  
The Cost ◽  
The Impact ◽  
First Time

AbstractThe cost of ASD in the U.S. is estimated using a forecast model that for the first time accounts for the true historical increase in ASD. Model inputs include ASD prevalence, census population projections, six cost categories, ten age brackets, inflation projections, and three future prevalence scenarios. Future ASD costs increase dramatically: total base-case costs of $223 (175–271) billion/year are estimated in 2020; $589 billion/year in 2030, $1.36 trillion/year in 2040, and $5.54 (4.29–6.78) trillion/year by 2060, with substantial potential savings through ASD prevention. Rising prevalence, the shift from child to adult-dominated costs, the transfer of costs from parents onto government, and the soaring total costs raise pressing policy questions and demand an urgent focus on prevention strategies.

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