Context Of Litigation Research Articles

Detecting exaggeration and malingering in neuropsychological assessment.

Magnification of symptoms or nonoptimal effort on neuropsychological tests, within the context of head injury litigation, can have several independent or related underlying causes. Therefore, detecting exaggeration does not automatically indicate that the individual is malingering. This article reviews the evaluative and differential diagnostic process and provides the clinician with suggestions regarding assessment methods. A forensic evaluation that does not include careful consideration of possible negative response bias should be considered incomplete.

Warnings and Risk Taking in the Allocation of Responsibility for Consumer Product Safety

This study explored how product users' risk taking characteristics and the presence or absence of a warning influenced allocation of responsibility for accidents during consumer product use. Sixty-three subjects were shown eight scenarios describing a product accident and injury. The scenarios described a litigation context that implicated the consumer as a high or low risk taker. Subjects allocated accident responsibility between the manufacturer, retailer, and consumer (user). Two variables were manipulated; descriptions of users' prior risk taking behaviors, and presence or absence of a warning. A warning effect was found; mean allocation to manufacturers was 20% and 60% with and without warnings, and 74% and 31% to consumers with and without warnings. High risk takers received more responsibility (85%) than low risk takers (65%) when warnings were present; however, in the no-warning condition the difference between allocations made to high and low risk takers was greatly reduced (28% and 35% respectively).

Nonpecuniary Class Action Settlements

Nonpecuniary settlements - agreements in which consideration other than immediate cash payments are given to class action plaintiffs in exchange for a release of liability - have become controversial methods for resolving large-scale litigation and thereby, in theory, deterring corporate misconduct. Such settlements, it is claimed, enrich attorneys but provide no substantial benefit either for the public or for the class members who have suffered harm. This study provides the first empirical and analytical investigation specifically focusing on such settlements. We categorize nonpecuniary settlements into five general types: (1) coupons, (2) securities, (3) monitoring, (4) reverter funds, and (5) fluid recoveries. We demonstrate that nonpecuniary settlements can sometimes serve the interests both of the plaintiffs and the public, although in other cases such settlements will be socially undesirable. We identify a number of features of nonpecuniary settlements that tend to enhance their value or to substantiate the inference that such settlements are fair, adequate and reasonable from the standpoint of class members. Finally, we examine a data set of 127 class action settlement notices published in the New York Times from 1993 to 1997, in order to situate the topic within the overall context of class action litigation.

The Effects of Perceived Morality and Facial Attractiveness on Allocations of Responsibility for Consumer Product Safety

This study investigated the effects of perceived morality and facial attractiveness on allocations of responsibility in a civil litigation context. Confronted with uncertainty, jurors may focus less on the factual evidence presented and more on peripheral cues. It is hypothesized that jurors will attribute more responsibility to a bad individual compared to a good person, and unattractive consumers will be allocated more responsibility for an accident than their attractive counterparts. Results indicate perceived morality significantly influenced responsibility allocations. Bad people were given more responsibility than good people. Although unattractive consumers were given more responsibility than attractive consumers, the difference was not statistically significant. Finally, allocations to the consumer and manufacturer differed depending upon the product involved in the scenario, indicating that responsibility allocations to consumers is related to the type of product. Implications for civil litigation include the awareness that jurors' decisions are influenced by the type of product as well as subjective information about the consumer.

The Policyholders’ “All Sums”; Argument: Sound and Fury Signifying Nothing

In recent years, policyholders have formulated a liability theory of coverage predicated upon the “all sums”; language commonly found in Comprehensive General Liability policy insuring agreements. The increasing reliance on this theory by policyholders has led to some particularly unusual results in the environmental litigation context. This article discusses the legal underpinnings of the “all sums”; position and examines its continued viability in the wake of growing opposition from courts across the country.

Biological complexity confounds the separation of point- and non-point sources of human impact on the natural world

Identifying process from pattern is one of the most vexing tasks inenvironmental monitoring. Given information on the distribution of speciesin a pre-defined area, together with comprehensive data on how environmentalconditions in that area have altered through time, is it possible toidentify the factors controlling the species‘ layout? Here, the practicalsignificance of this quandary is demonstrated using a series ofenvironmentally-degraded coastal lagoons in New South Wales. The TuggerahLakes (33°17′S,151°30′E) have over the last 50 yearsexperienced significant changes in species‘ distributions. Seagrasses,macroalgae, phytoplankton, molluscs, prawns and the jellyfish Catostylus mosaicus have altered in spatial pattern. Two human activitieshave been blamed for these perturbations: (1) agricultural clearance ofnative vegetation from the catchment, with associated input of top-soil andnutrients; (2) the commissioning of a coal-fired power station in 1967, withmassive uptake and recirculation of lake water for cooling purposes. In thispaper, spatial changes in macrophyte distributions over the last 50 yearsare reviewed in an attempt to identify the true source(s) of perturbation.The model adopted assumes that the power station is a point source of impactwhile nutrient inputs from the catchment are a diffuse source of impact;changes in species distributions can hypothetically be related back to thesesources according to whether they are localised or widespread. However,after a comprehensive analysis of available macrophyte data derived frominterviews, aerial photography and line transect methodologyies theconclusion is reached that changes in biogeographical pattern around theTuggerah Lakes cannot be attributed to specific anthropogenic pressures atanything beyond the coarsest of levels. This is considered to be the normfor most coastal management situations where natural background variation(’noise‘) and the complexity of linkages between physical, chemical andbiological components confounds the identification of causal relationships.The practical implications of this conclusion are discussed in the contextof litigation and remedial management design. Emphasis is placed on theneed to adopt an adaptive approach to estuarine management, incorporatingexplicit recognition of the limitations of available data, and to developnew techniques for identifying cause-effect relationships.

Resource modeling moves into the courtroom

In this paper I discuss the use of a population dynamics model to predict the future population size of colonial seabirds after damages from a loss due to oiling. Although simple, the model was developed in a litigation context by a retained ‘team of experts’ and presented some challenges both in communication of results and concept to environmental lawyers and in the interpretation of results in terms of the legal issues at hand. Use of models like these involve an adversarial relationship between scientists and modelers on each side of the case. Success in these cases arises not so much from scientific credibility or credentials of the scientists as from their ability to interpret their idiom in both intuitive and common sense fashion. Given the litiginous nature of environmental issues in our country and abroad, we are likely to be more involved in such issues in the future. I conclude with suggestions on how we might effectively approach problem resolution in this context.

The role of protocols and professional judgement emergency medical dispatching

The task of evaluating incoming calls to Emergency Medical Services (EMS) systems in order to determine the most appropriate response is performed in many different ways in current EMS systems. At one end of the spectrum, the process is entirely dependent on the judgement of professionals, while at the other end protocols specify the exact questions to be asked and corresponding decisions. This case study describes the experience of the Montreal EMS system, Urgences santé, where professional telephone evaluation performed by nurses since 1981 was replaced by a protocolized system in 1992. During the professional era, there were many attempts to formalize the nurses' decision-making process. These first revealed that professional judgement tended to override decision-support tools that did not allow a flexible processing of the information spontaneously provided by callers. Second, the choice of a single protocol for each call was unnatural for professionals who could spontaneously integrate multiple aspects of a problem in parallel. Third, when protocols were used by professionals, it was a posteriori in order to document their decisions rather than actually support them. Fourth, the use of Artificial Intelligence (AI) methods in order to formalize professional judgement revealed its great complexity, which was confirmed by cognitive analyses of the nurses' decision-making processes. In particular, decisions of not sending EMS resources seemed to be the most difficult. These unsuccessful attempts at formalizing professional judgement led to an evaluation of its performance in terms of results, i.e. to which extent actual decisions minimized errors (both false positives and false negatives) and decision times. A random sample of 1006 calls was collected and the ideal decision was determined by concensus of experts for each call based on the patient's clinical condition. This theoretical decision was considered as a goal standard to which actual decisions were compared. Data analysis revealed that sensitivity of telephone triage (i.e. decision to send EMS resources or not) was almost perfect and specificity was 0.55. The necessary compromise between sensitivity and specificity varied with the types of decisions. Decision times were related to the urgency of the situations, more urgent calls being processed more rapidly. These results were interpreted as representing sophisticated optimization processes in professional judgement. The professional system was replaced by a non-professional protocolized system in 1992. This new system has not yet been formally evaluated in terms of results, but many sources of evidence suggest that it was accompanied by a deterioration of performance. Many contextual factors influence the organization of telephone assessment in EMS systems. This case study suggests that professional judgement may be most useful in contexts where the demand for EMS services often exceeds the availability of resources. On the other hand, protocolized systems may be more appropriate in the absence of such constraints, and where the litigation context prohibits the occurrence of any false negative.

Expected Long-Term Real Interest Rates: A Reprise

Abstract No abstract available.

The Value of Life and Hedonic Damages: Some Unresolved Issues

Abstract No abstract available.

RESALE PRICE MAINTENANCE AND DISTRIBUTIONAL EFFICIENCY: SOME LESSONS FROM THE PAST

Resale price maintenance (RPM) has had a history similar to that of a religious war, with the legal status shifting as the various sects have had more or less influence over the courts and the political arenas. Both the RPM and anti‐RPM missionaries have overstated their cases.In theory, RPM can have both procompetitive and anticompetitive effects. Unfortunately, most of the dispute has been theoretical (theological); both sides have provided minimal empirical support for their theological conclusions. The empirical evidence, though sketchy, shows both procompetitive and anticompetitive instances of RPM. In particular, history warns that strongly organized interest groups tend to use the political process to enforce abuses of a distributional restraint that theoretically might otherwise have primarily procompetitive effects.The theoretical and empirical record does not support either per se legality or illegality for RPM in all instances. In some situations, such as for small firms in unconcentrated wholesale and retail markets and for new entrants, the probability of anticompetitive effects is negligible. In other situations, the evidentiary burden of demonstrating either the likelihood of anticompetitive effects, or of their absence, would be practically insurmountable in a litigation context. Rule‐of‐reason litigation, then, also seems to be an unwise policy choice.On balance, considering the economic, political, and legal constraints, we recommend continuing the current per se illegal standard, but with exceptions for clearly defined instances in which the probability of anticompetitive effects is minimal.

Culture and Inference: A Trobriand Case Study

1. Introduction Background Classification Inference A Naturalistic Approach Organization of the Argument 2. Trobriand Land Tenure Relations between Men and Land The Transfer of Land Rights Titles in Land The Institutional Context of Litigation 3. The Model Notation Inference Descendant Schemata 4. Case Analysis Motabasi's Presentation Analysis of Motabasi's Presentation Kailimila's Presentation Analysis of Kailimila's Presentation The Testimony of Witnesses Kwaiwai's Opinion Analysis of Kwaiwai's Opinion The Chief's Decision 5. Uses of the Cultural Code Abbreviate Discourse, Reconstruct Abbreviated Discourse Chunking Understanding and Explanation Problem Solving Judgments of Sense, Truth, and Likelihood Decision Making Expectations and Plans Violations of Expectations Attribution Speech Acts 6. Conclusion Notes References Glossary Index

Inappropriate Patient Confinement and Appropriate State Advocacy

The appropriate role of mental health lawyers representing patient interests has been the subject of vigorous commentary and debate for some time.' Some authors have chastised lawyers opposing commitment proceedings for being too lax,2 while others have asserted that those lawyers are too aggressive and mechanically adversary.3 The role of mental health lawyers in law reform litigation has also been seriously scrutinized.4 Curiously, however, discussions of advocacy in mental health law have rarely touched on the appropriate role of attorneys representing commitment petitioners or state hospitals.5 This necessarily brief article attempts a modest redress of the imbalance by sketching some concerns regarding the appropriate role of state advocacy not in commitment hearings themselves, but in the limited yet important context of post-commitment litigation involving arguably inappropriate patient confinement. Arguably inappropriate patient is a rather imprecise designation. Included within it are cases in which, because of a possibly invalid court order or a possibly unconstitutional statutory provision, it may be argued that the specified nature or duration of a patient's confinement is not legally required or permitted. The notion can perhaps best be captured by a series of representative illustrations:

Gratuitous language in appellate cases involving gay people: ?Queer bating? from the bench

An examination of appellate cases—state and federal—where homosexual behavior is under judicial scrutiny suggests that gay litigants are frequently the targets of gratuitous asides. Such language takes various forms. It also occurs with varying frequency depending on the type of case (criminal, employment discrimination, immigration and naturalization, licensing and incorporation, marriage, or child custody) under examination. The incidence of such language also varies with the level of the court involved (state vs. federal), and it also varies temporally, showing a general decline with the advance of time. The presence of such language is employed as an indicator of the legitimacy accorded gay litigants in the courtroom. Within this context, the impact and efficacy of litigation on behalf of gay people is also assessed.

Group Litigation and Social Context: Toward a History of the Class Action

Group Litigation and Social Context: Toward a History of the Class Action

Geological Malpractice, an Approaching Threat: ABSTRACT

Geologists' studies of environment of deposition are increasingly subject scrutiny by those who are not professionally knowledgeable in the subject. The study becomes one related the phrase to depose and the environment becomes the legal context of litigation, the scrutiny by lawyers. Until very recent years, professional earth scientists were well insulated End_Page 962------------------------------ in the practice of their black arts from the lay public. Most contacts were with corporate clients or sophisticated investors. The dramatic increase in use of geologic maps and written opinion occasioned by the drilling fund, environmental impact statements, and the expansion of business in general, coupled with the developing sense of professionalism among earth scientists and a litigation-conscious public combine into malpractice exposure. The geologist who understands this trend can minimize this exposure and afford himself, his employer, and his family a measure of protection as the times change. End_of_Article - Last_Page 963------------