Tort Reform

Punitive damages are one of the most controversial aspects of tort litigation and have been the subject of various theoretical, empirical, and experimental studies. One criticism of punitive damages refers to the effect that they have on civil litigation processes. In particular, Polinsky (1997) argues that the uncertainty and unpredictability that punitive damage claims inject into a case may increase both the rate and amount of settlements, thus implying that punitive damages carry systemic consequences for the general processing of tort claims. This paper represents the first, empirical examination of this implication. With one of the largest and most comprehensive data sets of tort litigation (over 25,000 cases filed from 1994 through 1997 in several counties in Georgia), we analyze both cases that are likely to have caps on punitive damage awards and cases that are likely to be uncapped. We examine the effect of the decision to seek punitive damages on several major decision po...

The transferred-intent doctrine is a fiction that is no longer needed by American tort law, because of the replacement of contributory negligence with comparative negligence and development in the law of negligence since the creation of the transferred-intent doctrine. In the midst of decades of tort reform, the transferred-intent fiction has survived.  Though total abolition is unlikely, its use and applicability should be greatly restricted given the existence of non-fictitious avenues for equal recovery.

The transferred-intent doctrine developed when no avenue for recovery existed for plaintiffs who were contributory negligent.  Since the advent of comparative negligence, however, the need for the transferred-intent fiction to ensure deserving plaintiffs are awarded relief is no longer present. Thusly, the law of negligence effectively eclipses the applicability of the transferred-intent doctrine and affords an equal measure of relief. Though transferred intent is no longer necessary within the context of tort law, the fiction remains vital in criminal law which, unlike tort law, relies exclusively on mental culpability and not tort law’s principles of negligence.

It is unlikely that legislative tort reform will ever address the obsolescence of the transferred-intent diction, requiring the courts to decide the future of the doctrine. As it is not likely that the doctrine will be abolished in its entirety, the doctrine’s application should be greatly restricted.

Childbirth is distinctly characterized in tort law by the literal emergence of a potential putative plaintiff. This Article seeks to position the birthing woman — distinct from the pregnant woman or the parent — squarely within the negligence framework and, in doing so, to challenge prevailing assumptions dominating obstetric medical decision-making. The existence of two patients and two putative plaintiffs is unique to childbirth, yet largely unexamined in tort. This Article examines how the dominant focus on fetal harms in modern childbirth overshadows the birthing woman in tort and distorts the normative dualities of childbirth.While theoretically childbirth falls within a traditional negligence framework, unique dualities dominate the tort framework when applied to birthing malpractice cases. First, absent extenuating circumstances, the doctor and the woman make birthing decisions as dual actors with the woman normatively retaining primacy in medical decision-making. Second, the...

This group of annotations focuses on issues of timely relevance to an insurance practice. As of January 16, 2009, it includes updates from the Arkansas Insurance Department which regulates in some of the areas discussed in the annotation.
    The annotation includes article summaries and Arkansas state law updates on a variety of cutting edge topics including, e.g., tort reform, charitable immunity, subrogation, and insurability of punitive damages. It also features very specific issues related to health insurance, with treatment of clinical trial coverage, genetic discrimination, and insurance issures regarding infertility and anorexia. Further, it includes a discussion of title insurance as well as causation analysis in property insurance. Finally,it includes the employment insurance topics of Corporate Owned Life Insurance (COLI) and workers compensation. The form and purpose of this publication is similar to The Mouse in the Annotated Bibliography: An Insurance Law Primer, (http://ssrn.com/abstract=1182543). However, as to content, Mouse I focuses on basic doctrinal points, like the difference between first party and third party insurance, betweeen coverage and exclusions, and the conflicts of interest that inhere in an insurance defense relationship. This article, Mouse II, by contrast, focuses on more subtle points drawn from insurance practice, with a dominant public policy focus.

This Article is a rejoinder to the civil recourse theorist's claim that tort law will be better served by retreating to the philosopher's prefecture of private wrongs. A subsidiary goal of this Article is to refute John Goldberg's claim that my sociologically-inspired theory of torts as public wrongs serves the interests of tort reformers rather than American consumers. In a nutshell, civil recourse theory is "tort reform in disguise," not the concept of torts as fulfilling wide-ranging purposes such as the social control of corporations. If judges adopt civil recourse theory, they will be less inclined to recognize new causes of action and plaintiff classes deferring instead to legislatures. Tort law is the multi-tasker of the common law and does far more than redress private wrongs. Tort law not only redresses private wrongs, it also advances general deterrence through social control. The contemporary Toyota sudden acceleration claims and the BP oil spill are...

Honesty and transparency are essential aspects of health care, including in physicians' and hospitals' responses to medical error. Biases and habits associated with medical malpractice litigation, however, may work at cross-purposes with compassion in clinical care and with efforts to improve patient safety. To determine the frequency of nondisclosure agreements in medical malpractice settlements and the extent to which the restrictions in these agreements seem incompatible with good patient care. We performed a retrospective review of medical malpractice claim files, including settlement agreements, for claims closed before (fiscal year 2001-2002), during (fiscal year 2006-2007), and after (fiscal years 2009-2012) the implementation of tort reform in Texas. We studied The University of Texas System, which self-insures malpractice claims that involve 6000 physicians at 6 medical campuses in 5 cities. Nondisclosure provisions in medical malpractice settlements. During the 5 s...

Abstract: This Article develops a novel theory that explains our medical malpractice system's rules and institutional infrastructure. This theory uncovers the mechanisms of treatment-and setup-related “entry rules” and “exit rules” that impose, restrict and expand care providers' liability. The theory demonstrates how our system uses institutional competence as its criterion for allocating the power to determine each type of rule to a different institution or actor, or a combination thereof. The medical profession has the exclusive power to devise ...

That all is not well with tort law cannot seriously be doubted.  In Liability: The Legal Revolution and Its Consequences, Peter Huber attempts to chronicle the changes in tort doctrine over the past thirty or so years that have brought tort law to its present crisis, and to prescribe sweeping remedial actions capable of defining a more intelligent course of accident compensation.  Drastic measures are necessary, Huber argues, because of the magnitude of the emergency.

Huber’s critique of modern tort law is always provocative and often perceptive and enlightening.  The book identifies many jurisprudential trouble-spots which cry out for reform, and the examination raises many important questions about the current state of tort law.  Unfortunately, Huber forfeits many opportunities to persuade or enlighten by engaging in unwarranted exaggeration and indulging in unsubstantiated and inaccurate assertions.  His efforts to write in a vivid, colorful style frequently degenerate into unfair caricature, heavy sarcasm, and one-sided argumentation. 

Huber’s book should be read, but not because it is an even-handed, accurate portrayal of modern tort law, nor because its proffered remedies are an adequate solution to current problems.  Rather, it should be read because it forces one to think deeply about liability issues, and that, of course, is an essential step in curing all that is not well with tort law.

Although the seeds of democracy and democratic tort reform were sown well before America’s founding, neither began to blossom until after the Second World War. Democratic progress from the 1950s to the 1970s led to, and was in part consolidated by, progressive developments in tort law during the same period. Unfortunately, the last quarter century has been a period of democratic decay in America and just as the revolution in tort law was bound up with democratic progress, the counter-revolution in tort law has tracked and reinforced the waning of American democracy since the 1980s. Although a few authors have touched on the issue, there has been no in-depth treatment of the relationship between tort reform and democratic change in the legal literature. This article takes a step to fill that gap. This article draws on recent literature in economics, political science and democratic theory to demonstrate the extreme degree of economic inequality in America and how economic inequality ...

Childbirth is distinctly characterized in tort law by the literal emergence of a potential putative plaintiff. This Article seeks to position the birthing woman — distinct from the pregnant woman or the parent — squarely within the negligence framework and, in doing so, to challenge prevailing assumptions dominating obstetric medical decision-making. The existence of two patients and two putative plaintiffs is unique to childbirth, yet largely unexamined in tort. This Article examines how the dominant focus on fetal harms in modern childbirth overshadows the birthing woman in tort and distorts the normative dualities of childbirth. While theoretically childbirth falls within a traditional negligence framework, unique dualities dominate the tort framework when applied to birthing malpractice cases. First, absent extenuating circumstances, the doctor and the woman make birthing decisions as dual actors with the woman normatively retaining primacy in medical decision-making. Second, the doctor owes a duty to both the birthing woman and the fetus in utero. Both birthing women and the children who suffer birthing injuries can separately bring tort claims against the physician(s), with some states extending liability through to when an in utero patient reaches the age of majority. Birthing women rarely sue for their own physical harms resulting form obstetric malpractice, while fetal harms are frequent, emotional, and yield huge damage verdicts. This Article concludes that because the fetus has become the dominant patient in childbirth and the far riskier putative plaintiff in modern obstetric malpractice cases, this reality diminishes and subordinates the rights and remedies of birthing woman as patients and plaintiffs in problematic ways. This fetal harms focus has a pervasive and multi-layered impact. It distorts the standard of care that doctors distinctly owe to both the woman and the fetus. It tilts the dualities of childbirth toward the fetus. It valorizes medical judgments in response to uncertainty in childbirth and villainizes maternal responses that do not conform to an essentialized, self-sacrificial, and historically myopic view of childbirth. Obstetric malpractice cases further reveal fetal-focused consequentialist decision-making whereby, when the child is born healthy, the duality of doctors treating both women and in utero fetuses collapses and birthing women’s rights to tort remedies are subsumed within the positive birthing outcome. Healthy babies negate maternal harms. This fetal harm focus is entrenched in litigation patterns and judicial precedent. It reveals real problems positioning the dualities of childbirth in our tort framework and preserving the autonomy of birthing women. This Article further foreshadows the pervasive problems “personhood” law reform initiatives present to the obstetric care model.