Civil Justice System Research Articles

Damage capitation in the modern liability climate: a primer for neurosurgeons and systematic review of the literature

OBJECTIVE Neurosurgery, and particularly spine surgery, is among the most highly litigated medical specialties in the US, rendering the current malpractice climate of primary importance to spine surgeons nationwide. One of the primary methods of tort reform in the civil justice system is malpractice damage capitation (or "caps"); however, its efficacy is widely debated. The purpose of this article is to serve as a review for the practicing neurosurgeon, with particular emphasis on short- and long-term effects of damage caps and on the current debate regarding their utility, based on a systematic review of the literature. METHODS The Meta-Analysis of Observational Studies in Epidemiology (MOOSE) guidelines for systematic review of observational studies were used in the design of the study. Multiple medical and legal online databases (MEDLINE, Scopus, EMBASE, and JSTOR) were queried using the key words "malpractice" and "damage capitation" for articles from 2000 to 2014. A total of 96 abstracts were screened for inclusion and exclusion criteria. Of these, 22 articles were reviewed in full and another 15 were excluded for study design or poor quality of data. Five more studies were added after cross-checking the bibliographies of the included articles. The resulting 12 articles were evaluated; relevant data were extracted using a standardized metric. RESULTS Five studies were found showing varying effects of capitation on physician availability, with only 1 of these specifically showing increased availability of neurosurgery and elective spine coverage in states with capitation. Four studies demonstrated that capitation overall succeeds in decreasing jury awards and frequency of claims filed. Last, 3 studies were found showing an overall decrease in malpractice premiums for states that passed damage capitation. CONCLUSIONS There is evidence in the literature showing that total and noneconomic damage capitation has the potential to improve the practice environment for neurosurgeons nationwide. Additionally, there are other factors that affect malpractice premium rates, such as the investment markets, which are not affected by these laws. All of these are important for spine surgeons to consider and be aware of in advocating for appropriate reform measures in their states.

Compensation at the Crossroads: Autonomous Vehicles and Alternative Victim Compensation Schemes

Fully autonomous vehicles will become available to consumers within the next five to seven years. Experts predict that these vehicles will be drastically safer than their human-driven counterparts and will save thousands of lives each year in the United States alone. However, crashes will still occur, and when they do, they will raise unique and troubling issues about liability and fault that both negligence and products liability jurisprudence are not yet well-suited to handle. Whether the civil justice system can adjudicate autonomous vehicle crash cases fairly and efficiently, in turn, impacts (a) whether manufacturers can afford to produce these vehicles or whether the cost and magnitude of litigation surrounding them will destroy their market, (b) whether consumers will adopt this new technology, and (c) the rate at which they will be willing and able to do so. These issues, in turn, have an impact on how many lives can be saved on U.S. roads each year. It is thus imperative to design a method of compensating victims, protecting manufacturers, and giving courts time and space to develop jurisprudence applicable to this technology if we wish to reap the profound benefits that fully autonomous vehicles stand to offer. While filing a lawsuit in the civil justice system will always be an option for victims of autonomous vehicle crashes, a specially designed, no-fault victim compensation fund offers a sensible way to address the issues identified above and to resolve these cases in a faster and less costly manner. While the use of victim compensation funds is a fairly recent phenomenon in the United States, these funds have been used with great success in a variety of situations and could be used successfully here. In the model proposed in this paper, an autonomous vehicle crash victim compensation fund would be administered by the National Highway Traffic Safety Administration (NHTSA) and financed by a tax levied on the sale of all fully autonomous vehicles. Victims who wish to seek compensation from the fund would be able to do so via a simple claim form and an agreement to waive their right to sue. Manufacturers, in turn, would be required to participate in a data-sharing and design improvement program as a condition of receiving protection from the fund. This program would both assist NHTSA in gathering the information it needs to regulate autonomous vehicles and reduce the likelihood that a victim compensation fund would reduce manufacturer incentives to improve the safety of their vehicles. Participation by both victims and manufacturers would be voluntary, but the benefits of entering the fund would likely induce high levels of participation from both.

Should Alternative Dispute Resolution Mechanisms Be Mandatory? Rethinking Access to Court and Civil Adjudication in an Age of Austerity

In England, the civil justice system is undergoing a fundamental transformation: due to austerity policies, dispute resolution is being increasingly privatised and civil trials are “vanishing”. How can the role and functions of judicial adjudication be protected in this scenario? This brief article aims at addressing this issue. I will first proceed by identifying the purposes of the public adjudication. Then, after having considered what I call the ‘public’ element in private dispute resolution, I will advance and justify a proposal for a renewed role for courts. By considering recent developments in the English case law, I will (quite provocatively) argue that ADR should be mandatory and should be the normal modality to solve private disputes, while judges should decide cases only under certain circumstances. Overall, in this article I aim to offer some talking points for further discussion on the impact of ADR in England and to stimulate afresh theoretical debate over the rarely evaluated implications of the privatisation of civil justice.

Litigation and Arbitration in Greenland and Dispute Resolution Under the Greenlandic Standard Licences

Enterprises doing business in Greenland will become subject to Danish and Greenlandic jurisdiction. Therefore, it becomes pertinent for them to have some knowledge about the civil justice system in Greenland and the possibilities to escape this jurisdiction, either by selecting a different forum (choice of court agreement) or by submitting the dispute to arbitration. For enterprises obtaining licences from the Greenlandic Government, this can raise certain constitutional issues. This chapter provides an overview of the civil justice system in Greenland and its regulation of arbitration, which is not based on the UNCITRAL model law, and analyses to what extent private enterprises and the Greenlandic Government can escape Danish–Greenlandic jurisdiction by agreement, opting for either a court in another jurisdiction (choice of court agreement) or arbitration. Against this background, the legal effects of the dispute resolution clauses in the Greenlandic standard licences, which are based on a bifurcated jurisdiction between the Danish–Greenlandic courts and arbitration, are analysed.

Civil mediation in imperial, republican and modern-day China

This article explores the position of mediation as a means of civil disputes resolution in China’s legal history. While civil adjudication existed in imperial China, the legal tradition of wu song (‘[a society] free from litigation’) played a fundamental role in shaping China’s imperial civil justice system. Under the Confucian ideology, disputes of a civil nature should be settled through conciliatory means so that the amicable relations of the disputants could be maintained. The culture of face-saving and the maintenance of cordial relations remains a distinctive characteristic of the modern Chinese society. This legal historical background provided the ideological foundation for civil procedural systems during the Republican era (1911-1949) and the early days of the People’s Republic (since 1949). The current debate on the contemporary mediation system is placed into the appropriate context when one understands that civil process in China today still operates under the shadow of cultural norms of the traditional Chinese legal order.

An Investigation into the Nature and Role of Non-Settled ADR

For decades, the orthodox understanding of a successful ADR has been based on the idea that ADR is ‘successful’ when the process produces an immediate settlement and, as a result, the parties and the court are able to realise ADR’s economic and practical benefits. Conversely, an ADR process that does not produce a settlement on the day (or shortly thereafter) is traditionally perceived as having ‘failed’. This paper challenges the orthodox understanding by arguing that it is far too narrow and misleading. It is narrow and misleading because it focuses only on the ‘visible’ or ‘immediate’ economic and practical advantages that are to be gained if the ADR process results in a settlement between parties. Consequently, the orthodox understanding fails to appreciate the ‘hidden’ economic and procedural benefits that may flow from the parties having constructively engaged with the settlement process. Drawing on doctrinal and empirical research, this paper calls for a rejection of the orthodox understanding of what is meant by a successful ADR in favour of a wider and more pragmatic approach. It will argue for the need for this re-orientation of our understanding to enable those who engage with the civil justice system (the parties, their lawyers and the judiciary) to perceive engagement with an ADR process as a success both when it produces a settlement and when it does not but has the potential to provide the parties and the court with potential future benefits. It will assist the parties to focus on the most significant issues which will in turn, help the parties to better understand the dispute and may lead to a future settlement. Further, these narrowed, focused issues can also be taken from the ADR process to the case management process and thus help promote more efficient case management. It will also be argued that this re-orientated understanding will also help to promote a more integrated approach to Lord Justice Briggs’ nuanced approach to dispute resolution, which calls for courts to take a more active role in the encouragement, facilitation and management of dispute resolution in the widest sense, including ADR as part of that process, rather than merely focusing on case preparation for trial.

The Drawbacks of Judicial Pluralism in the Administration of Justice

Legal pluralism in Malaysia has been traditionally a colonial legacy. Legal pluralism not only posits the existence of multiple legal spheres in the same social field but develops certain suppositions concerning the relationships and interaction between them. One area in which there is apparently interesting interaction is in the administration of justice. Whilst legal pluralism may be celebrated because it moves away from the pre-occupation with legal centralism, society cannot afford to have a justice system that is in disarray. This is indeed the case in Malaysia where a common law tradition and civil justice system seem to be at odds with the strong element of religion in the constitution. For more than 50 years, the Malaysian legal system has had to grapple with the ongoing and seemingly endless conflict of judicial authority between the civil and Syariah courts. Syariah courts in Malaysia are exclusively empowered to hear and dispose of cases among Muslims on subject matters enumerated in the first item of List II of the Ninth Schedule of the Federal Constitution.

Narrative-Erasing Procedure

In recent years, we have seen the concerning rise of what is best described as “narrative-erasing procedure” in civil pretrial litigation. The Supreme Court has imposed the heightened “plausibility” pleading standard. The Rules Advisory Committee has altered the discovery rules to further emphasize “proportionality” in discovery requests. And settlement pressures at every stage of pretrial litigation are high. These trends have been the subject of robust academic debate. But missing from this debate is any consideration of the values that narrative supports in civil litigation. Stories are what the law produces, and stories are what grow the law. The democratic functioning of the litigation system relies on the generation, development, and contest of narratives. Because narrative is a vital part of litigation, narrative-erasing procedural developments threaten harmful ossification of the law. Narrative-erasing procedure also has a harsh impact on individuals who are already marginalized in society. Without narrative, the law cannot address longstanding problems and accommodate citizens in changing times. The article offers a comprehensive account of the way that narrative functions in pretrial litigation—an area that has been understudied to date. The article also advances solutions for the problems caused by narrative-erasing procedure, including policy recommendations and tools for introducing narrative by other means, drawing on Marshall Ganz’s work on “public narrative” in the social movements literature. Without greater attention to the phenomenon of narrative-erasing procedure, we risk sacrificing a core feature of the civil justice system: the contest of narratives that produces fair outcomes.

Law, Institutions and Economic Development: Examining the Development of the Home Mortgage Market in India - Can Two Wrongs Make a Right?

There is a vast literature examining the interactions between law, institutions and economic development, but it only occasionally examines how actual markets in emerging economies have developed and transitioned to relying on legal institutions. This paper addresses that question by examining the puzzling growth of the formal home mortgage market in India from the mid 1990s onwards. Enforcing a mortgage and foreclosing on property in the Indian courts were, until very recently, lengthy affairs with a typical case taking between 15 to 20 years to resolve. These delays, along with other factors, made writing mortgages unattractive for banks and led to a trivial home mortgage market until the mid 1990s. However, from about 1994 to 2003, and before any mortgage law related changes took effect, the home mortgage market in India grew quite impressively. This paper examines what led to this growth and finds that, amongst other things, banks in India relied on “dysfunctions” in the criminal justice system to help overcome dysfunctions in the civil justice system for enforcing mortgages. Quite simply two “wrongs” might make a “right”. In particular, in house departments at banks relied on a provision that criminalized “bounced” checks along with the predictability and regularity of extortion by the police to enhance their ability to obtain payments for mortgages and other kinds of debts (e.g., car loans, student loans). Although this aided the growth of the home mortgage market, it also resulted in substantial negative collateral effects by enhancing corruption and worsening adjudicative delays in India. Indeed, the “bounced” check strategy came to represent one of the largest areas of litigation in India. However, once the mortgage market started growing the banks pushed for law changes around 2003 that facilitated the continued expansion of the market, but reduced the need to rely on the “bounced” check strategy, which was becoming costly for banks. This account of the development of the home mortgage market in India not only tracks the incentives faced by the players and highlights the improvisational aspects of this market’s growth, but also has implications for a number of areas of research. This includes insights on the interactions between law, institutions and economic development, the role of private ordering, and key players like in-house lawyers, in market development, and how sustained change and legal reform might be effectuated in some contexts. These insights in turn facilitate the emergence of a richer and more textured approach for exploring the interactions between law, institutions and economic development.

The Illusion of Innovation at Canadian Law Firms

The legal profession in Canada is undergoing a paradigmatic shift in the way it relates to the civil justice system, clients and itself. Significant changes in technology, client sophistication and...

Victimhood and Agency: How Taking Charge Takes its Toll

This project addresses an unexplored tension in the civil justice system with regard to victims. The civil justice process generally depends on victims taking action – but “active” victims may face unanticipated consequences. I find that victims who play an active role in the justice process are blamed more, and recover less in damages. These findings are mediated by perceptions of victim agency.

The Duty of Mutual Trust in EU Law and the Duty to Secure Human Rights: Can the EU's Accession to the ECHR Ease the Tension?

ABSTRACTThe principle of mutual trust has been a central pillar of the European integration project, first as a tool for market integration, and as the European Economic Community became the European Union, as a mechanism for a more wide ranging integration of the legal orders of the member states. The EU now has legislation in place which imposes obligations on member states to trust each other's civil and criminal justice systems, immigration and asylum law, and family law. But these obligations of trust imposed by EU law may conflict with obligations that member states have to secure the rights under the ECHR. Accession by the EU to the ECHR was supposed to resolve this conflict, but in its Opinion 2/13, the Court of Justice appeared to have dealt a fatal blow to this solution. This article explains the tension between the EU principle of mutual trust and the duty to secure ECHR rights. The article examines the most recent case law of the CJEU and the ECtHR in order to assess whether a resolution of this tension has been found, and whether the EU's accession to the ECHR will be possible.

Setting the parameters of ‘digital (criminal) justice’ in Scotland

The term ‘digital justice’ has been used by the Scottish Government to delineate the potential of information and communication technology (ICT) in its civil, administrative and criminal justice systems. This paper concentrates on the latter area, outlining the content of the original 2014 digital justice strategy document and the subsequent Holyrood conferences used to promote it (Scottish Government, 2014). It notes gaps in the strategy, not least a failure to specify what human beings could and should be doing in digitized justice systems, and ambiguity about the endpoint of ‘full digitization’, which could be very threatening to existing forms of professional practice. It sets the policy debate in the broader context of increasing automation and the more critical literature on digitization, concluding with recommendations for a revised policy document, ideas which may be of interest outside Scotland.

Improving Access to Justice Through Compulsory Student Work at University Law Clinics

In this paper an analysis is offered of compulsory so-called "live client" clinical legal education as part of the LLB as a means of improving access to justice for the indigent. This study first explores the factors which motivate which the establishment of a year’s compulsory community service during the LLB studies, and making clinical legal education compulsory. The motivation includes inducing law students and graduates to aid in the achievement of access to justice. The research then focuses on what the value of community service is in higher education generally.
 
 In the South African civil justice system many ordinary people cannot afford to use the courts because of the expense involved, or because they are ignorant of their rights. This is particularly the case in civil as opposed to criminal matters, as legal aid is more frequently focused on criminal than on civil matters in this country. This paper will consider the role which senior law students may play in rendering pro bono work as part of clinical legal education in their LLB studies. In this regard particular focus will be made on the University of KwaZulu-Natal (UKZN), the only university offering law studies in greater Durban.
 
 As for pro bono work by students during their LLB, consideration could be given to making clinical legal education a compulsory part of such students' curricula. Possible compulsory community service for law graduates (ie post-LLB) as envisaged in the proposed Legal Practice Bill falls beyond the ambit of this paper.

CONCEPT OF CHECK AND BALANCE IN INDIAN CONSTITUTION MISUSE OF PIL

Public Interest Litigation is the highly effective weapon in the armory of law for reaching social justice to the common man. It plays a vital role in the civil justice system in that it could achieve those objectives which could hardly be achieved through conventional private litigation. It was designed to serve the purpose of protecting rights of the public at large through vigilant action by public spirited persons and swift justice. PIL could also contribute to good governance by keeping the government accountable. But the profound need of this tool has been plagued with misuses by persons who have been filing PILs just for the publicity and those with vested political interests. It is an undemocratic, unrealistic and dangerous tendency which is to be impeded by our judicial attitude. Steps and reasonable care should be taken to make sure that PIL essentially remains public interest litigation and should not be empowered to get corrupted into becoming a political interest litigation or publicity interest litigation. The misuse of PIL will stop when the courts are vigilant and the challenge is for the state to prolong a balance in allowing legitimate PIL cases and discouraging waggish ones.

« PLACER LE CITOYEN AU CŒUR DU SYSTÈME » : ORIGINE ET FONDEMENTS D’UNE IDÉE POPULAIRE

This article looks into an idea which, today, seems to be on everyone’s lips. An idea put forward by observers of the legal world (academics, journalists) as well as by actors and decision makers taking part in it, and that is, thus, echoed not only in civil society, but also within the legal community’s inner circle. This idea is the following: to put the citizen at the very heart of the civil justice system.
 To assist in understanding this idea, which she calls “recentring”, the author provides the context in which it emerged. She does so in a two-step process: she first examines the background against which this recentring was first proposed; she then identifies its underlying justification, or the philosophy on which it is based.

Therapeutic Jurisprudence – Continuous Quality Management and Positivity in the Civil Justice System in Sweden and UK

Therapeutic Jurisprudence – Continuous Quality Management and Positivity in the Civil Justice System in Sweden and UK

Options of litigation funding in serving the interests of society: a critical evaluation from the viewpoint of access to justice

Litigation funding, over the years, has run reverse from champerty and maintenance and been established as an integral part of mainstream civil justice system with a view to facilitating access to justice. Admittedly, its present standard in the United Kingdom has been impacting considerably on the objective of ensuring access to justice. But how far are the funding options serving the interests of the society is still a matter of debate. In this study, some hypotheses have been drawn to assess how far the options of litigation funding are facilitating the litigants’ satisfaction as to access to justice.

De-Ciphering Self-Help

The dominant view of self-help is that it is a remedy exercised by individuals as an alternative to seeking state-sanctioned aid. In other words, self-help consists in ‘legally permissible conduct that individuals undertake absent the compulsion of law and without the assistance of a government official in efforts to prevent or remedy a legal wrong.’ Indeed, self-help is often vaunted as an efficient, or at least potentially efficient, alternative to the slower, costlier, and more cumbersome civil justice system. In our world of increasingly exorbitant legal costs, in which few have meaningful access to the civil justice system, remedies that can be initiated and executed without prohibitive expense merit scholarly attention. Notwithstanding this potential promise, the legal scholarship on self-help is meagre, and, moreover, just what behaviour counts as self-help is left unclear. Self-help, as it is currently understood, risks becoming a meaningless term, a cipher through which almost any behaviour initiated by an individual in furtherance of her legal rights can count as self-help. This article defends a narrower conception of self-help than that recommended by the dominant view. In so doing, it clarifies some of our misgivings about, and checks some of our hopes for, self-help. Self-help, properly understood, is not an alternative to the civil justice system. It is a privilege to act vis-à-vis another in a certain way when certain circumstances exist, and its exercise is always defeasible to a final determination by a court. Self-help, in other words, is not equivalent to taking the law into one’s own hands, as some have implied. This conclusion should comfort those who might worry about the extra-legal nature of self-help and who ask with some trepidation how the unilateral action of one individual can determine the scope and existence of the rights of another. Based on this article’s understanding of self-help, it simply cannot. This conclusion, however, might disappoint those who hope that self-help can be a part of the solution to our current access-to-justice crisis. If it is not a true alternative to the civil justice system, then the specter of costly, inefficient litigation and adjudication remains.

Internal and international commercial arbitration as a private form of law enforcement

УДК 347.918 The subject. The issues of the arbitration’s place in the civil justice system as well as its place in a whole system of social governance in the scope of Russian arbitration reform. The purpose of the article is to provide a comprehensive analysis of internal and international commercial arbitration as a peculiar form of private law enforcement, as well as to present a doctrinal description of the arbitration’s role in law enforcement system and its managerial impact mechanism. Methodology. Research of general functions of law enforcement in social governance. Essential features of arbitration and basic foundations of civil litigation also have been compared. The results and the scope of its application. The results are both doctrinal and practical. Domestic and international commercial arbitration can be considered as a peculiar form of managerial impact, as a subsystem of civil justice subordinated to general patterns of the social governance. Arbitration is a special, private on its origin, form of managerial impact, whereas arbitration tribunal is an independent nongovernmental element of the social governance system. Despite the fact of its private origin arbitration is in full measure a law enforcement activity. Theoretical comparison of arbitration’s substance with civil litigation became a convincing proof of the existence of public elements in a private segment of civil justice system. Conclusions. Application of law by arbitration tribunals, both domestic and international, has the imperious character. Arbitration is a legal activity, private on its origin and to a great extent public by its essence. It embraces the expansion of general legal directions on individual social relationships by means of making arbitral awards which are law enforcement acts of individual character.