Standard Of Due Care Research Articles

Environmental Liability Law and Induced Technical Change – The Role of Discounting

We analyse the incentives of environmental liability law for inducing progress to emission abatement technology. We consider three liability rules: strict liability, a negligence rule with an emission norm as the due care standard, and a double negligence rule which combines the emission standard with an abatement technology norm. In the case of distortive discounting, i.e. where the private discount rate deviates from the social one, we show, how the level of distortion influences the ranking of liability rules, according to the criterion of generated social cost.

Uncertainty and Negligence Rules

This paper analyzes the effects of evidentiary uncertainty on people's incentives to abide by rules in the context of negligence rules in tort law. It demonstrates that i) the comparative negligence rule is not necessarily superior to the simple or the contributory negligence rule, ii) an application of lenient standards of due care under the contributory negligence rule than in comparative negligence rule would not necessarily restore social efficiency, and iii) a partial reduction of legal uncertainty would not necessarily improve social efficiency. These results contrast previous theoretical literature.

An asymmetric-information model of litigation

This paper presents a cradle-to-grave model of tort liability, incorporating the decision to comply with the due-care standard, the decision to file suit, and the decision to settle. I use the model primarily to examine settlement rates, plaintiff win rates, and compliance with the due-care standard. The key results of the model are as follows: (1) litigation to judgment occurs only when some but not all actors comply with the due-care standard, and (2) if defendants have the information advantage at trial, plaintiff win rates generally will be less than 50 percent. I apply the model and its simulation results to several empirical issues in the litigation literature. The model simulation indicates that the British rule for allocating legal costs is superior to alternatives in terms of social welfare. In addition, the model is capable of explaining several empirical features of litigation and puzzles in the literature on trial outcomes.

An Asymmetric Information Model of Litigation

This paper presents a cradle-to-grave model of tort liability, incorporating the decision to comply with the due-care standard, the decision to file suit, and the decision to settle. I use the model primarily to examine settlement rates, plaintiff win rates, and compliance with the due-care standard. The key results of the model are as follows: (1) litigation to judgment occurs only when some but not all actors comply with the due-care standard, and (2) if defendants have the information advantage at trial, plaintiff win rates generally will be less than fifty percent. I apply the model and its simulation results to several empirical issues in the litigation literature. The model simulation indicates that the British rule for allocating legal costs is superior to alternatives in terms of social welfare. In addition, the model is capable of explaining several empirical features of litigation and puzzles in the literature on trial outcomes.

Medical Guidelines — Reception and Application by the Law: The German Example

AbstractMedical or clinical practice guidelines of professional institutions establish rules (standards) for good medical treatment (quality of care). They take the form of international, national, regional and local guidelines and are set up by international and national medical organisations, mainly by medical scientific societies, but also by regional (e.g. medical associations in the German Länder states) and local (up to hospital departments) institutions. The rules of good medical treatment (medical or clinical practice guidelines) have to conform to the corresponding medical standard, which is defined by scientific knowledge (evidence-based medicine), practical experience and professional acceptance. The binding character of the standard for medical practice increases with the reliability of scientific evidence and practical experience. Insofar, medical guidelines which correspond to the standard fulfil a quality assurance function for medical treatment as a means of communication in the medical profession, an implementation function for the enforcement of standards and thus also a protective function for patients. Three main issues are concerned: the harmonisation of the procedure for development and the criteria for the quality of good clinical guidelines ("guideline for guidelines"); the legitimation of the objectives of professional guidelines towards the patients and the transformation or reception of medical guidelines by the law. Guidelines can be legally transformed by the courts into standards of due care in liability law, into statutory health insurance law (directives) by the legislator or into the law of tax-financed national health systems. In this function they rationalise (e. g. medical malpractice) decisions of the courts or the legislator by increasing the transparency of their medical basis and thus also contribute to the quality improvement of legal decision-making on medical malpractice. Medical guidelines can also influence (legally binding) health insurance law directives. On principle, guidelines of the scientific medical associations do not involve any economic considerations (efficiency) and should be strictly separated from these (principle of separation and transparency). Medical guidelines have to be differentiated from (health insurance law) directives and recommendations. In addition to the quality assurance function, the guarantee function for efficiency of treatment is a priority for health insurances.

Due professional care of certified public accountants in the People’s Republic of China

Believes that the rapid development of the market system in the People’s Republic of China should encourage Chinese certified public accountants (CPAs) to examine themselves and recognize the importance of exercising due professional care, in order to develop in an international and healthy manner. Because the time of reconstructing the CPAs system in China is short, most attention is paid to how the CPAs profession can develop rapidly and to general professional management. However, the lack of consciousness of what “due care” is and what comprises the legal standards of due care contributes to confusion about its role. Feels that in order to promote the consciousness of audit liability, the law needs perfecting, and technical standards, audit theory, and court procedures need improvement before resolution of the auditors’ liability issue can be achieved.

Environmental liability, imperfect information, and multidimensional pollution control

The paper looks at the preventive pollution control induced by a negligence rule in a situation of imperfectly observable two-dimensional pollution control. When pollution control efforts are imperfectly observable to differing degrees, a standard of negligence distorts the choice among different strategies in reducing environmental risk. This distortion can be attributed to two effects: immunization from liability and sharpening of incentives for observable precaution. Hence, in contrast to one-dimensional precaution, uncertainty in verifying the negligent behavior may improve incentives to take preventive pollution control measures. This implies that asymmetric information in assessing compliance to the standard of due care might not constitute a serious problem for environmental liability.

Securing a global village and its resources

In an international economy and social infrastructure that is growing more dependent everyday on its communications networks, more attention must be placed on the security and integrity of the components and interfaces of those critical structures. This article describes and hopefully help to further set the stage for the realization of effective risk based baseline security level of protection and resilience for the common intelligence SS7 signaling networks linking much of the existing telecommunications and future public networking superhighways. This article is also intended to further support the unfolding of globally harmonized standards of due care on security, e.g., the British Standards Institute, BSI, Code of Practice for Information Security Management.< <ETX xmlns:mml="http://www.w3.org/1998/Math/MathML" xmlns:xlink="http://www.w3.org/1999/xlink">&gt;</ETX>

Efficient standards of due care: Should courts find more parties negligent under comparative negligence?

We show that negligence standards should differ under comparative and contributory negligence regimes. If due care standards are allowed to vary with the laws of a jurisdiction, then comparative and contributory negligence may be equally efficient, even in a model with evidentiary uncertainty. It is commonly observed that jurors are naturally inclined to be more lenient to plaintiffs on the issue of plaintiff negligence in contributory negligence jurisdictions. We show that such lenience may actually be efficient in addition to satisfying jurors' senses of equity. A similar conclusion applies to defendants. (This abstract was borrowed from another version of this item.)

Efficiency of Comparative Negligence: A Game Theoretic Analysis

Previous articleNext article No AccessEfficiency of Comparative Negligence: A Game Theoretic AnalysisTai-Yeong ChungTai-Yeong Chung Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Journal of Legal Studies Volume 22, Number 2Jun., 1993 Sponsored by The University of Chicago Law School Article DOIhttps://doi.org/10.1086/468170 Views: 11Total views on this site Citations: 18Citations are reported from Crossref Copyright 1993 The University of ChicagoPDF download Crossref reports the following articles citing this article:Benjamin G. Ogden, Keith N. Hylton Incentives to take care under contributory and comparative fault: The role of strategic complementarity, International Review of Law and Economics 61 (Mar 2020): 105882.https://doi.org/10.1016/j.irle.2019.105882Satish K. Jain, Rajendra P. Kundu Decomposition of Accident Loss and Efficiency of Liability Rules, Review of Law & Economics 11, no.33 (Jan 2015).https://doi.org/10.1515/rle-2013-0046Benjamin Ogden, Keith N. Hylton Incentives to Take Care Under Contributory and Comparative Fault, SSRN Electronic Journal (Jan 2015).https://doi.org/10.2139/ssrn.2564260Massimo D’Antoni, Avraham D. Tabbach Inadequate compensation and multiple equilibria, International Review of Law and Economics 38 (Jun 2014): 33–47.https://doi.org/10.1016/j.irle.2014.02.003Giuseppe Dari-Mattiacci, Eva S. Hendriks Relative Fault and Efficient Negligence: Comparative Negligence Explained, Review of Law & Economics 9, no.11 (Jan 2013): 1–40.https://doi.org/10.1515/rle-2012-0028Shahar John Dillbary Tort-Fest, SSRN Electronic Journal (Jan 2012).https://doi.org/10.2139/ssrn.2050999Giuseppe Dari-Mattiacci, Eva-Susanne Hendriks Comparative Negligence as a Buffer Against Erroneous Standards, SSRN Electronic Journal (Jan 2010).https://doi.org/10.2139/ssrn.1719585Pablo Salvador-Coderch, Nuno Garoupa, Carlos Gómez-Ligüerre Scope of liability: the vanishing distinction between negligence and strict liability, European Journal of Law and Economics 28, no.33 (May 2009): 257–287.https://doi.org/10.1007/s10657-009-9104-zFrancesco Parisi, Ram Singh The Efficiency of Comparative Causation, SSRN Electronic Journal (Jan 2009).https://doi.org/10.2139/ssrn.1428410G. Dari-Mattiacci, N. Garoupa Least-Cost Avoidance: The Tragedy of Common Safety, Journal of Law, Economics, and Organization 25, no.11 (Nov 2007): 235–261.https://doi.org/10.1093/jleo/ewm052Ram Singh ‘Causation-consistent’ liability, economic efficiency and the law of torts, International Review of Law and Economics 27, no.22 (Jun 2007): 179–203.https://doi.org/10.1016/j.irle.2007.06.007Ram Singh Comparative Causation and Economic Efficiency: When Activity Levels are Constant, Review of Law & Economics 3, no.22 (Jan 2007).https://doi.org/10.2202/1555-5879.1107 Giuseppe Dari‐Mattiacci and Gerrit De Geest The Filtering Effect of Sharing Rules Dari‐Mattiacci & De Geest, The Journal of Legal Studies 34, no.11 (Jul 2015): 207–237.https://doi.org/10.1086/426853Giuseppe Dari-Mattiacci, Gerrit De Geest The Filtering Effect of Sharing Rules, SSRN Electronic Journal (Jan 2004).https://doi.org/10.2139/ssrn.556281Giuseppe Dari-Mattiacci, Nuno M. Garoupa Least Cost Avoidance, SSRN Electronic Journal (Jan 2004).https://doi.org/10.2139/ssrn.560062Giuseppe Dari-Mattiacci Tort Law and Economics, SSRN Electronic Journal (Jan 2003).https://doi.org/10.2139/ssrn.347801Tai-Yeong Chung Comparative Negligence, (Jan 2017): 352–354.https://doi.org/10.1007/978-1-349-74173-1_71Aaron S. Edlin Efficient standards of due care: Should courts find more parties negligent under comparative negligence?, International Review of Law and Economics 14, no.11 (Mar 1994): 21–34.https://doi.org/10.1016/0144-8188(94)90033-7

Costly Litigation and Legal Error under Negligence

In this article, private enforcement under negligence when there is legal error and litigation is costly is examined. Ordover (1978) demonstrated that in a negligence regime in which there is no legal error and litigation is costly, equilibrium requires the presence of actors who refuse to obey the due-care standard. Accordingly, in such a negligence regime, an undercompliance equilibrium must result. Since the existence of litigation costs implies that the socially optimal level of care is greater than that required by the traditional Hand formula, which defines negligence as a failure to take care where the cost of taking care is less than the expected loss if the accident occurs, 1 it is a short step from Ordover's undercompliance result to the conclusion that injurers,2 under negligence, exercise less than the socially optimal level of precaution (see Hylton). It is demonstrated that, because of legal error, an undercompliance equilibrium need not result under negligence. In a negligence regime in which courts err and litigation is costly, perfect and overcompliance equilibria are

Rethinking the Allocation of Medical Malpractice Risks between Patients and Providers

A distinctive feature of medical malpractice law is its acceptance of medical custom as the dispositive legal standard of care. Outside the field of medical malpractice, long established legal doctrine accords limited weight to custom in defining the general standard of care in negligence cases.' In medical practice, by contrast, the legal standard of due care is virtually defined by the customary skills and practices of the profession. A showing of subconformity to custom here ordinarily yields liability, while conformity ordinarily forecloses it; as a corollary, the metes and bounds of custom are required to be established by medical experts qualified to speak to the particular skills or practice in question.2 As there are always exceptions to the general rule, so also there are exceptions to the general exception: liability may be established without expert testimony or independently of professional custom in cases where negligence is obvious to the lay observer or where medical judgment is not implicated.3 The justification for treating malpractice cases differently from other accident cases is by no means obvious or simple. Posner has suggested that a distinction might rest on the notion that custom in malpractice cases was used essentially as evidence of the parties' contractual expectations.4 There is

Subjective data and suicide assessment in the light of recent legal developments: Part II: Clinical uses of legal standards in the interpretation of subjective data

Suicide assessment is a problematic area for the psychiatrist, given the tension between the uncertainty inherent in subjective assessment and the risk of a fatal outcome. In addition to the dread of a tragic outcome, there is also an ever-present fear of malpractice liability, along with discomfort at the prospect of having to defend clinical judgments based on data that may not lend themselves to the usual notion of scientific objectivity. These medicolegal concerns reflect deeper intellectual misgivings about the reliability of data that are neither quantified nor based on absolutely verifiable observations. On the one hand, together with more objective data, clinicians routinely take into consideration their perceptions of patients' feelings and their own in the assessment of suicide risk. On the other, they can never be quite sure that such data meet the standards of precision set by hard science, let alone the law. In Part I of this paper we demonstrated that psychiatrists ' fears of indiscriminately rendered malpractice judgments for suicidal outcomes are largely groundless. For the careful, documented use of subjective data in arriving at a reasoned clinical assessment (particularly in the context of the attempt to obtain informed consent) satisfies all three major standards of due care typically invoked by the courts in determining negligence. Thus the clinician can follow the guidelines of clinical experience and theory without being dogged by the fantasy of judicial retribution for a lack of omniscience or omnipotence. Here we will take the argument a step further and show that the three standards of

Role of JCAH Standards in Negligence Suits

Court cases in which the Standards of the Joint Commission on Accreditation of Hospitals have been introduced into evidence are reviewed to examine the various legal roles of the Standards and to consider some implications of this for the hospital and for the hospital pharmacist. Following a review of the Darling case, the role of the Standards in establishing a legal duty is examined with emphasis on a case involving medication handling where it was held that a hospital may be liable for damages resulting from failure to comply with JCAH Standards. The Standards have also been used to assist in creating a national standard of due care by abrogating the locality or community rule. Miscellaneous uses of the Standards are also discussed. The product institutional pharmacist will be thoroughly familiar with JCAH Standards applicable to activities related to medication handling and take steps to assure that every effort is made to comply with these requirements.

Imperfect Information, Costly Litigation, and Product Quality

This article examines the effect of costly litigation and imperfect information on the quality of output. An equilibrium is described in which consumers are uncertain about the result of a lawsuit. The findings show that for a wide range of due care standards there will be both negligent and nonnegligent firms in the market. Furthermore, as the population becomes more risk averse the proportion of output produced by negligent firms increases. If absolute risk aversion decreases as income increases, and there is market segmentation, reliance on litigation to control product quality will have undesirable distributional effects.

Legal standard of due care for pharmacists in institutional practice

The process by which courts determine negligence on the part of a pharmacist is discussed, and important malpractice decisions involving pharmacists and other medical professionals are summarized. Courts expect pharmacists to exercise a high level of "due care." It is unclear whether a hospital pharmacist would be held t a standard created by general practitioners or by specialists in institutional practice; but a good case can be made for a special standard. If the court finds that professional standards are deficient, the court may establish higher standards. Pharmacists should ensure that their performance meet legal expectations by keeping abreast of new developments in pharmaceutical practice.

The Plaintiff's Attorney

The social purpose of product liability litigation is product safety and accident Prevention. The role of the Human Factors Expert in that context is to educate juries, trial judges and appellate judges, attorneys, and experts in product design. The role of the Human Factors Expert in this context also includes being educated by the attorney's hindsight and experience, the technical materials, and by due care standards rather than compromise standards.

Single Activity Accidents

T ADITIONALLY, tort law has been viewed as having two functionsdeterrence and compensation. Taxes and fines also serve the first purpose while private and social insurance join in the second (and naturally affect the first). Accidents fit neatly into the economists' framework of externalities, and the role of taxes and insurance has been examined in an equilibrium framework in this context. The purpose of this essay is to begin the extension of equilibrium models to include tort liability for accidents. Thus, the models developed represent an attempt to examine some of the elements of the way tort law affects resource allocation. This is not an analysis of the development of tort law nor a serious putting together of all relevant questions in a way appropriate for policy analysis. Any work in this area must be greatly influenced by the work of Guido Calabresi,1 and I started this project as an attempt to set Calabresi to mathematics, although the logic of my approach has drawn me away from that definition of the task. While the paper concentrates on developing successively more complicated mathematical models, I have attempted to make it readable by someone who omits the mathematical derivations, although he must follow the setting up of the models. The paper analyzes equilibrium behavior of all the participants in an activity, where participation exposes one to the possibility of accidents involving two (and only two) persons. For a world of risk-neutral expected-utility maximizers who do not engage in side transactions, equilibrium in the activity is related to the parameters (particularly the standard of due care) determining the outcomes of the tort law system. The focus is on the nature of equilibrium rather than the complexities of judicial decision-making. Although much of the paper is devoted to simple cases where equilibrium can be made

Accident Law and Resource Allocation

This article examines the effects from introducing a frictionless legal system into a model of competitive equilibrium with externalities. In a traditional negligence-contributory negligence legal system, there are two important legal parameters under due care standards. This paper relates the different equilibria which can occur to the levels of the due care standards. /Author/