Liability Standards Research Articles

Another Look at Alcoa: Raising Rivals' Costs Does Not Improve the View

THE government monopolization case some fifty years ago against the Aluminum Company of America is well known to antitrust aficionados. Judge Learned Hand declared that Alcoa, by expanding so as to maintain an overwhelming share of the U.S. market for virgin aluminum, had committed the offense of monopolization. For many years now, Judge Hand's standard of antitrust liability has stood condemned. The consensus has been that Alcoa committed no economic wrong. Recently, however, the case has been prominently cited to illustrate a different approach to analyzing supposedly predatory practices-raising rivals' costs (RRC). Proponents of this approach argue that much of antitrust analysis, in fact all of the analysis of exclusion, should be redefined to focus explicitly on whether a firm's transactions raise the costs of its competitors and, thereby, cause prices to rise. While they do not endorse Judge Hand's reasoning, they do believe that the facts of Alcoa demonstrate an array of practices, including the naked purchase of exclusionary rights. We believe that RRC methodology is seriously flawed as a useful approach to antitrust problem solving. Regardless of how Alcoa is analyzed, however, the facts of the case do not indicate an antitrust violation, assuming that the antitrust laws promote efficiency. We intend to demonstrate that Alcoa deserves its infamy.

Radiologists, communication, and Resolution 5: a medicolegal issue.

Resolution 5, adopted by the American College of Radiology, sets forth principles of direct communication that are important to every radiologist. This article reviews pertinent court decisions that affect radiologists and illustrates the importance of Resolution 5. In recent cases in state courts, liability standards have focused on four areas: negligence based on failure to personally inform clinicians of the diagnosis, ability of the jury to decide whether the radiologist's actions were appropriate, provision of information to the correct person, and necessity for expert testimony to define urgency. An important factor in liability cases appears to be the judgment of the radiologist in selection of the correct individual to receive the radiology report. The authors believe that electronic communication devices (eg, voice mail and fax machines) may potentially breach confidentiality and that such devices should therefore be used sparingly. Verbal communication by the radiologist to the referring physician, in addition to a written report, should avoid liability and improve quality of care for the patient.

Lawyers and Economic Growth-A Red Herring?: [Commentary

The legal profession has been the subject of considerable criticism, even abuse, that appears to stem from the belief that the growth in the profession is associated with four phenomena judged to be harmful for economic growth. One of these phenomena is a noticeable, though not systematically documented, shift to greater strictness in liability standards so that, for example, the defenses of assumption of risk and product misuse, available to manufacturers under some interpretations of the standard of strict liability, have been weakened.' A second is a perception, probably accurate, that the regulatory burden on the private sector has increased over the last 30 or so years. A third phenomenon, again rooted in perception but probably matched by reality, is that decisions of administrative agencies have grown more contentious. The fourth phenomenon is a growing suspicion that legal standards have become more uncertain. Charles Epp enters the debate over the impact of lawyers on economic growth by arguing against the notion that the number of lawyers and economic growth are negatively correlated.2 He implicitly accepts the maintained hypothesis of this debate, however, that it is reasonable to use the number of lawyers as a proxy variable for what ails countries and their legal systems-in particular, these four phenomena. The argument that follows suggests that the number of lawyers is a poor proxy and that its use ensures that the results of this debate are inconclusive and fragile. The essential problem is that both positive and negative characteristics of a

A Public Choice Analysis of the Evolution of Tort Law:.

. Economic analysis has generally concluded that most loss shifting under current standards of personal injury liability is allocatively non-Pareto optimal. The economic and legal arguments that support this conclusion are reviewed and an explanation is offered of why our legal system has evolved over time into an inefficient institution. It is argued that state sponsored lotteries and current personal injury liability laws have enough In common to be similarly viewed as a system of income redistribution demanded by the citizenry and supplied by the public sector.

Regulating agricultural contamination of groundwater through strict liability and negligence legislation

New state and national legislation attempts to limit the liability of agricultural chemical users by emasculating existing strict liability standards and replacing them with negligence standards. The allocation of contamination costs and precaution level between producers and victims of contamination associated with these alternative legislative standards is investigated. The analysis employed is a dynamic game theoretic framework considering moral hazard. Based on this analysis, a new institutional response is recommended to assign property rights based upon propensity and severity of injury and to require victim precaution.

Effects of internal rhetoric on management response to external issues: How corporate culture failed the asbestos industry

Corporate managements not only use rhetoric to influence persons inside and outside their organizations but also are audiences of their own rhetoric. In this way, for instance, they become convinced of what they are saying. When this happens, the culture they create shuts them off to alternative interpretations of reality. An excellent example of this phenomenon is the way asbestos industry leaders persuaded themselves that their product was vital and standards of industrial hygiene and product liability would not change. When such changes did occur the culture of the asbestos industry prevented its managements from making the necessary adaptations that would have averted ethical and financial bankruptcy.

The Advent of Clinical Standards for Professional Liability

The development of clinically based written standards to reduce the frequency and severity of medical malpractice loss appears to be gaining in popularity among provider specialty groups and professional liability underwriters. To date, such standards have addressed problems in specialties such as obstetrics and anesthesia where dollar losses associated with malpractice claims have been high. Guidelines can be developed and used by providers on a purely voluntary basis or mandated on an involuntary basis by third parties such as malpractice insurance companies or legislators. Because the advent of risk-control standards is a relatively new phenomenon, formal scientific studies on the long-term benefits of such guidelines have not yet been published. However, it appears that sharp reductions of malpractice losses in specialties such as anesthesia have coincided with the implementation of formal written standards specifically designed for liability control. This has led some liability insurance carriers to decrease premiums associated with specialists following such standards. Many providers are understandably concerned about the potential use of written standards by plaintiff attorneys in medical malpractice suits. Although it is possible that such policies and guidelines could be admitted into evidence to show that a provider breached the legal duty or standard of care owed to a patient, it is uncertain whether these risk-control standards could ultimately pass the evidentiary rules of relevancy or materiality in a given lawsuit. It is clear, however, that the consensus-based process of creating clinical standards and guidelines specifically for controlling professional liability losses is itself a powerful and emerging standard for health care risk management programs.

AIDS: legal issues in a growing epidemic : Clarke, M.E. (U.S.A.)

The article reviews selected legal issues regarding AIDS and HIV infection. Following an overview of the legislative and regulatory structure of public health laws in the United States, the article describes legal issues relating to the development of an AIDS vaccine, determination of appropriate professional liability standards in diagnosing and treating persons with AIDS or HIV infection, availability of tort law damages for persons negligently or intentionally exposed to infection, use of criminal laws against individuals who engage in conduct likely to transmit the virus, and protections against discrimination available to individuals with AIDS or HIV infection.

Anesthesia: Standards of Care and Liability

To the Editor.— In the article entitled "Standard of Care and Anesthesia Liability," Cheney et al1have clearly depicted recent medical liability problems in anesthesiology. Interest in patient safety and the prevention of mishaps in anesthesia, however, goes back nearly 150 years to the thorough investigation in England of the first recorded anesthetic death, some year and a half after the public demonstration in Boston, Mass, of general anesthesia.2Since that time, there have been many studies of anesthesia morbidity and mortality, including the important one of Beecher and Todd in 1955, which for the first time contained a denominator in the mortality rate, one anesthetic death per 1560 patients receiving anesthetics.2 During the last two decades, it was generally estimated that anesthesia mortality ran between 1 and 5 deaths per 10 000 anesthetics given.2Most recently, however, there is evidence that the current anesthetic death

Anesthesia: standards of care and liability

Anesthesia: standards of care and liability

Choosing the Standard of Care in Private Individual Defamation Cases

Some states use 'reasonably prudent person' while others use 'reasonably prudent publisher' as standard for negligence. Judicial discussion of whether expert testimony from the media is necessary to establish negligence in private figure defamation cases provides an inside look at how judges view the concept of professionalism within the parameters of these cases. One legal scholar says: Some courts have analogized the defamation action to malpractice actions and have held that expert testimony is required to prove malpractice. On the other hand, many courts have rejected this reasoning, holding that only ordinary negligence need be shown.1 In cases where the journalistic malpractice test is employed, the standard of care is set by the media industry. In cases where ordinary negligence is required, the jury is considered capable of determining what a reasonably prudent person would do under the same set of circumstances. These two different standards of care for assessing liability have created an implicit argument over whether journalists are professionals in the sense that newsgathering and dissemination require expertise, or whether journalists are nonprofessionals in the sense that how their work is done can be understood by almost anyone. This study will focus on private individual defamation cases that involve some discussion of whether the reasonably prudent publisher/editor or the reasonably prudent person should set the standard of care when negligence is at issue. After a brief discussion of negligence as a standard of fault in the post-Geriz era, the study examines judicial reasoning in adopting one standard of care rather than the other in cases reported through February 1988 and considers the implications of the reasoning.2 It is generally agreed that Gertz v. Welch3 delimited substantial media protection in defamation suits to public officials, public figures and issues of public interest. Prior to Gertz, the U.S. Supreme Court had declared that in order for a public official to recover damages for a defamatory falsehood he had to prove with clear and convincing evidence that the statement was made with actual malice.4 In Curtis Publishing Co. v. Bulls,5 statements about public figures were similarly protected and in order for a public figure who was not a public official to collect damages, a showing of highly unreasonable conduct representing an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers had to be made. A divided Supreme Court in Rosenbloom v. Metromedia6 extended the actual malice standard to matters of public or general concern regardless of the public/private status of the person involved, but the Court in Gertz repudiated Rosenbloom, deciding that the states had a legitimate interest in protecting the reputations of private individuals who must be afforded greater protection under the law because of their limited access to the media.7 We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehoodfs] injurious to a private individual. This approach provides a more equitable boundary between the competing concerns involved here. It recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation.8 Standards of Care How have the states defined the appropriate standard of liability in private individual defamation cases? At least 30 states and the District of Columbia have adopted a negligence standard.9 Judicial discussion in Gertz itself anticipated that the states would adopt some kind of negligence standard. Justice Blackmun, concurring, said, The Court now conditions a libel action by a private person upon a showing of negligence as contrasted with a showing of willful or reckless disregard. …

Shooting Yourself in the Foot with due Care: Psychotherapists and Crystallized Standards of Tort Liability

This paper discusses a conceptual tension that arises from the attempt to regulate the fiduciary therapeutic relationship through the law of negligence. This tension becomes particularly problematic when courts adopt crystallized duties as per se rules or as presumptive standards of care for psychotherapists. Under certain conditions, this tension can undermine the therapeutic process, the fiduciary nature of the therapeutic relationship, and the process by which professional organizations promulgate guidelines for their members. Thus, under certain circumstances, regulation through negligence law may frustrate both therapeutic and legal purposes. This paper suggests steps that courts and professional organizations can take to minimize the insidious effects of this tension, but it does not contend that these steps will resolve all of the difficulties associated with tort regulation of psychotherapy.

Merchant Liability:Changing the Standards

This paper examines the changing merchant liability standards for criminal attacks occurring on business premises. Customer lawsuits seeking to hold businesses responsible for the criminal attacks of others are becoming more common. Selected cases illustrate the requirements to prove business negligence, the usual theory of merchant liability. Varying, sometimes conflicting, state court decisions set each state’s merchant liability standard for third party criminal attacks. Generally, state courts are now more willing to impose liability when merchants fail to protect customers from third party attacks. Four suggestions for merchant response to the varying standards are provided.

Models of responsibility in criminal theory: Comment on Baker

Professor Brenda Baker's recent critique of the Canadian Law Reform Commission's treatment of general standards for criminal liability adds to a growing body of critical theory concerning such standards and their relation to criminal justice. From within the perspective of this same critical movement, I assess the strengths and weaknesses of Professor Baker's efforts and of similar lines of argument in the work of Professor George Fletcher. I find two significant flaws in their shared approach. The first is confusion as to the proper level for analysis of liability standards and, hence, for criticism of the "orthodox" view. This leads Professors Baker and Fletcher to concentrate on issues of culpability rather than responsibility (and to conflate these issues). The second flaw is an error in comprehension of the faults of the orthodox view and, hence, in recognition of the fundamental character of views opposed to that orthodoxy. This leads both theorists to overemphasize a suspect and unilluminating distinction between normative and descriptive approaches to liability problems. The rest of the article is devoted to an overview of my own approach to problems of liability and a general critique of the orthodox view in light of that approach. I argue that the fundamental issue is the relation of liability standards to a conception of agent responsibility. The primary fault of orthodoxy lies, then, in the cognitivist model of responsibility on which it relies. Against this, I propose use of a capacities model of responsibility as the basis for standards of liability. These two models are outlined and compared in final sections. Brenda Baker's critique of the Canadian Law Reform Commission recommendations for criminal liability is a welcome addition to a growing body of Anglo-American critical theory addressing the relation of liability standards to criminal justice. While this critical movement arguably has its roots in H. L. A. Hart's seminal analyses of criminal liability, it has enjoyed greater focus and vigor in the more recent work of theorists such as George Fletcher and Douglas Husak. Professor H. L. A. Hart, Punishment and Responsibility (New York: Oxford University Press, 1968); George Fletcher, Rethinking Criminal Law (Boston: Little Brown, 1978);' Douglas Husak, Philosophy of Criminal Law (Totowa, NJ: Rowman & Littlefield, 1987). Law and Philosophy 7 (1989) 295-320.

Computerized Engineers: Changing Standards of Professional Liability

Computer‐aided engineering systems hold great potential for reducing design mistakes, therefore reducing liability. However, the use of computers also has the potential for creating mistakes if the engineer places undue reliance upon these new tools, many of which have not had substantial experience testing. The legal responsibility of professional service providers is to act in accordance with the standard of reasonable professional practice. The use of computers may be changing the standard of what constitutes reasonable professional practice. This paper examines the professional liability risks created by, the use or failure to use computer‐aided engineering systems. Specific suggestions are made concerning procedures to minimize risk involved with use of computers.

Defining California Civil Code Section 47(3): The Resurgence of Self-Governance

In 1964, the United States Supreme Court ruled in New York Times Co. v. Sullivan that a public official cannot recover damages for libel unless he proves that the alleged libel was published with knowledge of its falsity or with reckless disregard of its truth or falsity, a standard that the Court called malice.2 In the 1971 case, Rosenbloom v. Metromedia, Inc. ,3 a plurality of the Court applied the New York Times standard of actual malice to a defamation action brought by a private individual where the allegedly defamatory story involved a matter of public interest. Only three years later, the Court overruled Rosenbloom in Gertz v. Robert Welch, Inc.4 The Court held that where the plaintiff is a private individual, the level of constitutional protection that extends to publications by the media may be less than New York Times actual malice. Gertz allowed states to establish their own standards of liability, provided that liability was not imposed without regard to fault and that punitive damages were not awarded without proof of New York Times actual malice.5

Protecting third parties: a decade after Tarasoff.

The authors discuss current public policy concerning the treatment of potentially violent psychiatric patients and outline some legal and ethical precedents of the current policy. Therapeutic interventions before and after the Tarasoff decision are compared. The authors make specific recommendations for clinicians, who they believe tend to interpret laws too restrictively. They suggest that courts need to rethink current liability standards so that legal decisions can be more clinically informed. Finally, they believe that legislative interventions which specify that warning the potential victim and notifying the police absolve psychotherapists from liability may lead to reflexive rather than reflective management of violent patients.

Products Liability Issues in School Asbestos Litigation

The hazards posed by deteriorating friable asbestos in the nation's schools are causing serious concerns for public health officials, school boards, parents and school employees. Reports by both the Environmental Protection Agency and the U.S. Attorney General's Office agree that both school children and school employees stand a substantially increased risk of contracting some form of asbestos-related disease as a result of exposure to deteriorating asbestos materials in school buildings. School systems plagued by the asbestos hazards are now filing suits against asbestos manufacturers alleging causes of action in breach of warranty, negligence and strict products liability in tort. Some plaintiffs in school asbestos litigation seek to recover the costs of EPA-mandated asbestos inspection and abatement programs which have already been completed. Still others request injunctions to compel the manufacturers themselves to conduct inspections and finance abatement. This Note examines the school asbestos situation from a legal perspective and focuses primarily on whether the schools' claims should be considered as economic losses or as property damage. It examines the impact of statutes of limitations on these cases under both contract and tort theories. The Note argues that school asbestos claims should be decided under a strict products liability standard.

Behavioral Science and the Negligent Child

Several standards of negligence liability exist for children. The most common is that a child must behave in a reasonable manner that is consistent with that of a hypothetical child of like age, intelligence, and experience. Research in causal understanding, impulsivity, rough-and-tumble play behavior, and fire setting is related to negligence and provides a basis for understanding and applying this standard.

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