Tort Law Reforms Research Articles

미국 연방 대표당사자소송과 주 대표당사자소송의 비교 연구

In this article, a class action under the federal rules of civil procedure and a class action under the state rules of civil procedure were compared. It is not virtually easy to compare all states, and I focused on the state of Missouri that adopted the federal rule on average, and the state of Mississippi that did not adopt a class action.
 Most states in the United States used the Federal Rules of Civil Procedure, with minor modifications, without major changes. In the case of Missouri, it was found that the federal rules were in fact used as they were and some of the requirements of the representative party were interpreted with some flexibility. On the other hand, Mississippi, when it enacted the state civil procedure rules in 1982, refused to accept class action system and operated its case law and statutory laws independently. As a result, many precedents regarding class action in Mississippi have been upheld : a class action without explicit statutes and provisions is impossible, a class action that existed before the 1980s in lower courts is not possible, and unlimited permissive joinder and consolidation that were substitutes for class action are rejected.
 Still, there were lessons to be learned from the case of Mississippi. First, in spite of no class action in Mississippi, most relief can be obtained through federal procedure. However, in the case of Mississippi's own human rights violations or small businesses in Mississippi, it is necessary to introduce a class action in the state.
 Second, the class action in Mississippi is very closely related to tort law reform. In particular, it is worth noting that proportional liability and limitation of liability introduced in the state of Mississippi should be considered as an alternative in order to expand the class action system in Korea. This means that it is necessary to balance what kind of discussions were made for the defense of the defendant while discussing class action and punitive damages for the relief of the plaintiff. At least in the case of companies with minor negligence, as a feasible method, it seems that the defendant should be sufficiently defended by assuming the case of faithfully fulfilling the duty of care.
 Third, the attempt to operate Rule 20(permissive joinder of parties) and Rule 42 (consolidation) of the Mississippi State Rules as a substitute of class action can be highly evaluated. This is because the attempt to quickly relieve small damages of large number of people in one procedure can be evaluated as an attempt to guarantee the citizens' right to access justice. However, this has fundamental limitations in relation to class action. In Rule 20 of the State Rule, it seems that it is difficult to define a class action only by the commonality of factual issues or legal issues, and the problem of conflict of interest is also difficult to resolve.
 In Korea, there is also a discussion on the addition of an ordinary co-litigation, but this is a problem that should be applied to an ordinary co-litigation, and it is not intended to be converted into a class action. However, although permissive joinder as the addition of an ordinary co-litigation is a legal doctrine that has been abandoned by the Mississippi state precedent, I think that the attempt to resolve collective disputes through permissive joinder is positive enough.

Instrumental Comparative Tort Law

Abstract This article examines the possible uses of comparative tort law in practice and theory. It takes the view that comparative law is always a means, never an end in itself, explains how it can be utilized by judges, legislatures, and legal scholars, and puts forward important caveats and qualifications. Part 2 demonstrates the traditional role of comparative law in interpreting and implementing shared or similar tort doctrines and in providing ideas for domestic tort law gap-filling and reform. It highlights the challenges that such utilization might present. Part 3 maintains that comparative research is the cornerstone of unification endeavors. Starting with coordinated projects, Part 3 argues that unification is in itself an instrument (making comparative law a second-order instrument) and that it cannot be pursued without taking into account some concerns about its desirability and practicability. Part 3 then discusses uncoordinated unification processes, whereby lawmakers in one jurisdiction identify a “global consensus” and decide to join it, and elaborates on the normative and positive components of these strategies. Part 4 acknowledges that comparative analysis usually uncovers trans-jurisdictional diversity and argues that such findings can underlie normative and positive theories of tort law. A comparison can offer a systematic taxonomy of possible legal solutions to a particular problem, enabling scholars to critically evaluate and compare the alternatives from their preferred theoretical perspective. Moreover, any hypothesis about the impact of cultural, economic, political, technological, and other conditions and changes on the law can be substantiated or refuted through comparative analyses that seek out legal differences (or similarities) among systems with different (or similar) underlying backgrounds. Through this analysis, the article aims to reignite and enrich the debate and inspire tort-law makers and scholars to integrate comparative research into their work.

US State Tort Liability Reform and Entrepreneurship

AbstractTort and civil liability reform has been a hotly debated issue across US states. This has spawned a large theoretical and empirical academic literature that evaluates the implications of such reform and the impact that it can have on various aspects of an economy. This study adds to that literature by considering how various tort reforms affect entrepreneurial activity across states. The study employs the Database of State Tort Law Reforms (6th Edition) and utilizes the Kauffman Index – an index of entrepreneurial startup activity – between 1996 and 2016, finding that liability reform is generally positively associated with increased entrepreneurial activity. These results are largely driven by joint and several liability, caps on noneconomic damages, limits on contingency fees, and collateral source rules though this latter result is somewhat less robust, while the effects of joint and several liability do not persist through time.

Database of State Tort Law Reforms (DSTLR 4th)

This manuscript of the DSTLR (5th) updates the DSTLR (4th) and contains the most detailed, complete and comprehensive legal dataset of the most prevalent tort reforms in the United States between 1980 and 2012. The DSTLR has been downloaded almost 2000 times and has become the standard tool in empirical research of tort reform. The dataset records state laws in all fifty states and the District of Columbia over the last several decades. For each reform we record the effective date, a short description of the reform, whether or not the jury is allowed to know about the reform, whether the reform was upheld or struck down by the states’ courts, as well as whether it was amended by the state legislator. Scholarship studying the empirical effects of tort reforms relies on various datasets, (tort reforms datasets and other legal compilations). Some of the datasets are created and published independently and some of them are created ad-hoc by the researchers. The usefulness of these datasets frequently suffers from various defects. They are often incompatible and do not accurately record judicial invalidation of laws. Additionally, they frequently lack reforms adopted before 1986, amendments adopted after 1986, court-based reforms, and effective dates of legislation. It is possible that some of the persisting variation across empirical studies about the effects of tort reforms might be due to the variations in legal datasets used by the studies. This dataset builds upon and improves existing data sources. It does so through a careful review of original legislation and case law to determine the exact text and effective dates. The fifth draft corrects errors that were found in the fourth draft, focuses only on the most prevalent reforms, and standardizes the descriptions of the reforms. A link to an Excel file which codes ten reforms found in DSTLR (5th) is provided. It is hoped that creating one “canonized” dataset will increase our understanding of tort reform’s impacts on our lives.

Tort Justice Reform

This Article calls for a comprehensive reform of public tort law with respect to law enforcement conduct. It articulates an effective and equitable remedial regime that reconciles the aspirational goals of public tort law with the practical realities of devising payment and disciplinary procedures that are responsive to tort settlements and judgments. This proposed statutory scheme seeks to deter law enforcement misconduct without disincentivizing prudent officers from performing their duties or overburdening them with extensive litigation. Rather than lamenting the dissolution of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics or the insurmountability of qualified immunity, reform advocates should acknowledge that the very distinction between constitutional and common-law torts is arbitrary for purposes of individual officer deterrence and accountability. By examining the relationship between Fourth Amendment excessive force jurisprudence and the common-law torts of assault, battery, and negligence, this Article highlights that the analytical distinction between those legal doctrines imposes an improper demarcation for civil liability. If law enforcement agencies concern themselves solely with the constitutionality of their employees’ conduct, training concentrates on the instant moment in which deadly force is used without substantial reflection on the conduct, including antecedent negligence, that led to the confrontation. At the same time, whether an officer can be held personally accountable should not be based on the intentionality of the conduct; rather, the reprehensibleness of the conduct is a more appropriate benchmark for individual liability. By acknowledging that tort law addresses various types of law enforcement activity that do not necessarily rise to the level of constitutional or criminal infractions, legislative bodies can begin conceptualizing public tort law as an important component of criminal justice reform. But to do so, we need tort justice reform.

Us State Tort Liability Reform and Entrepreneurship

Tort and civil liability reform has been a hotly debated issue across US states. This has spawned a large theoretical and empirical academic literature that evaluates the implications of such reform and the impact that it can have on various aspects of an economy. This study adds to that literature by considering how various tort reforms affect entrepreneurial activity across states. The study employs the Database of State Tort Law Reforms (6th Edition) and utilizes the Kauffman Index of Entrepreneurial Activity between 1996 and 2016, finding that liability reform is generally positively associated with increased entrepreneurial activity. These results are largely driven by reforms to joint and several liability, caps on noneconomic damages, collateral source reform, and contingency fee reform.

Civil forensic psychiatry - Part 2: specific issues.

This paper describes the main areas of civil forensic psychiatry (FP) and the skills required by psychiatric experts. Some specific areas of civil FP are discussed, including tort law reform, reliability of psychiatric evidence, contentious psychiatric disorders, and the many domains of civil FP. Civil FP is an important sub-specialty component of forensic psychiatry that requires greater emphasis in the training and continuing education of psychiatrists. A process of accrediting psychiatrists as having competency in advanced civil FP may be of value.

The Impact of State Medical Malpractice Reform on Individual-Level Health Care Expenditures.

Past studies of the impact of state-level medical malpractice reforms on health spending produced mixed findings. Particularly salient is the evidence gap concerning the effect of different types of malpractice reform. This study aims to fill the gap. It extends the literature by examining the general population, not a subgroup or a specific health condition, and controlling for individual-level sociodemographic and health status. We merged the Database of State Tort Law Reforms with the Medical Expenditure PanelSurvey between 1996 and 2012. We took a difference-in-differences approach to specify a two-part model for analyzing individual-level health spending. We applied the recycled prediction method and the bootstrapping technique to examining the difference in health spending growth between states with and without a reform. All expenditures were converted to 2010 U.S. dollars. Only two of the 10 major state-level malpractice reforms had significant impacts on the growth of individual-level health expenditures. The average annual expenditures in states with caps on attorney contingency fees increased less than that in states without the reform (p<.05). Compared with states with traditional contributory negligence rule, the average annual expenditures increased more in both states with a pure comparative fault reform (p<.05) and states with a comparative fault reform that barred recovery if the plaintiff's fault was equal to or greater than the defendant's (p<.05). A few state-level malpractice reforms had significantly affected the growth of individual-level health spending, and the direction and magnitude of the effects differed by type of reform.

Погляди на концепції реформування адміністративно-деліктного законодавства України

У статті розглядаються основні віхи нормативно-правового регулювання реалізації реформи законодавства про адміністративні правопорушення. Відзначається, що вказаному питанню приділена незначна увага, оскільки висвітлення напрямків реформування адміністративно-деліктного законодавства у рамках здійснення адміністративної реформи майже не здійснюється. Розглядаються доктринальні погляди на кодифікацію адміністративно-деліктних норм, зокрема шляхом створення ряду відокремлених кодифікованих актів та розпорошення норм в основних галузевих кодексах.

The effects of malpractice non-economic damage caps on the supply of physician labor: Heterogeneity by physician age and risk

We explore the impact of malpractice caps on non-economic damages that were enacted between 2003 and 2006 on the supply of physician labor, separately for high-malpractice risk and low-malpractice risk physician specialty types, and separately by young and old physicians. We use physician data from the Area Resource File for 2000–2011 and malpractice policy data from the Database of State Tort Law Reforms. We study the impact of these caps using a reverse natural experiment, comparing physician supply in nine states enacting new caps to physician supply in ten states that had malpractice caps in place throughout the full time period. We use an event study to evaluate changes in physician labor compared to the prior year. We find evidence that non-economic damage caps increased the supply of high-risk physicians <35years of age by 0.93 physicians per 100,000 people in the year after the caps were enacted. Non-economic damage caps were cumulatively associated with an increase of 2.1 high-risk physicians <35years of age per 100,000 people. Stronger non-economic damage caps generally had a larger impact on physical supply.

債権法改正が不法行為法の検討に託した課題

債権法改正が不法行為法の検討に託した課題

Tort reform and caesarean deliveries

This study examines the effects of state-level, tort law reforms on the rate of caesarean deliveries in the United States. The central thesis focuses on the rate of caesarean deliveries as an indicator of defensive medicine and the role, if any, of legal reform. Specifically, if physicians reduce their level of defensive medicine in the wake of liability reforms, this will show up as a reduction in the share of births in which a caesarean section was used. I discover after analysing panel data reflecting the rate of caesarean deliveries by states and for the years 1987, 1990 and 1993 that differences in rate of caesarean deliveries are partially the result of state-level liability reforms. The results provide further evidence of the existence of defensive medicine and of the impact of the legal environment on physician's choice of medical procedures.

From PI to IP: Yet Another Unexpected Effect of Tort Reform

Is there a connection between state-law tort reform and the explosive growth of U.S. intellectual property (IP) litigation? The literature has established that the number of tort claims in states with tort reform has gone down. How do personal injury (PI) plaintiff lawyers deal with the decrease in the demand for their services? Could a significant number of them end up shifting their practice toward IP law? Although David Schwartz’s interviews with contingent-fee litigators have led him to suggest that “[m]ost lawyers whose practice consists of substantially all patent contingent litigation are primarily and historically patent litigators,” David L. Schwartz, The Rise of Contingent Fee Representation in Patent Litigation, ALA. L. REV. (forthcoming), available at http://ssrn.com/abstract=1990651, there is pre-existing anecdotal evidence that some proportion of PI lawyers have switched substantially to IP. Using data gathered from various sources, including Lex Machina and the Database of State Tort Law Reforms, we find more systematic evidence of a related proposition — namely, that state tort reform significantly and substantially increases copyright and patent filings in U.S. district courts in the states where tort reform has occurred. In contrast, the evidence does not indicate a similarly significant effect on trademark and trade-secret filings. One potential explanation for the apparently different results for copyright and patent as opposed to trade secret and trademark is that, to the extent tort reform has produced an increase in trademark or trade-secret filings, that increase has been concentrated in state courts, rather than federal district courts that have exclusive jurisdiction over patent and copyright cases. Alternatively, it could be that PI attorneys moving into other areas of practice are more likely to gravitate toward patent litigation and copyright litigation, rather than trademark litigation or trade-secret litigation, perhaps because patent litigation and copyright litigation offer more opportunities for lucrative suits brought by non-incumbent industry players (e.g., independent inventors or startup firms) who might be most likely to seek the services of former PI attorneys. Finally, it should be noted that the apparent differential growth of patent and copyright litigation in states that have undergone tort reform might not be explained substantially by a lawyer-based shift from PI to IP at all. Instead, the primary mechanism for such differential growth could be court-based: for example, a post-reform decrease in docket congestion could make a state’s U.S. district courts significantly more attractive for IP filings, either directly by making litigation in those courts speedier or indirectly by freeing time for the courts to adopt rules for IP litigation that parties find attractive. This paper discusses such potential explanations and considers their plausibility in light of the paper’s new empirical evidence as well as other available data.

Does Tort Law Reform Help or Hurt Consumers?*

Legal limits on insurance damage claims have been introduced in Australia, the United States and other jurisdictions. In this article, I construct a simple competitive model to analyse the effect of tort law reforms on consumers. The model shows that reforms to limit non‐economic losses make consumers unambiguously worse off ex ante. Although insurance premiums fall and these reductions are passed on to consumers in full, this gain is more than offset by the increased risk that consumers are forced to bear. In contrast, reforms for income‐related (i.e. economic) losses lead to ambiguous outcomes. The potential benefits from limits to economic loss arise due to the inability of insurers to price discriminate on the basis of income or expected loss. Because of this, there is an implicit cross subsidy from low‐ to high‐income consumers that is embedded in the insurance premium and relevant product price. Tort law reforms partially unwind this cross subsidy. The results presented in this article show that tort law reforms may achieve their stated goal, such as lowering monetary prices, but can still make consumers worse off by introducing an uninsurable risk. There is also an important difference between reforms that limit claims for economic and non‐economic losses. Insurance for economic loss will generally include an implicit cross subsidy and, as a consequence, reforms can alter the ex ante utility for different groups of consumers in different ways.

Does Tort Law Reform Help or Hurt Consumers?

Legal limits on insurance damage claims have been introduced in Australia, the United States and other jurisdictions. In this article, I construct a simple competitive model to analyse the effect of tort law reforms on consumers. The model shows that reforms to limit non-economic losses make consumers unambiguously worse off ex ante. Although insurance premiums fall and these reductions are passed on to consumers in full, this gain is more than offset by the increased risk that consumers are forced to bear. In contrast, reforms for income-related (i.e. economic) losses lead to ambiguous outcomes. The potential benefits from limits to economic loss arise due to the inability of insurers to price discriminate on the basis of income or expected loss. Because of this, there is an implicit cross subsidy from low- to high-income consumers that is embedded in the insurance premium and relevant product price. Tort law reforms partially unwind this cross subsidy. The results presented in this article show that tort law reforms may achieve their stated goal, such as lowering monetary prices, but can still make consumers worse off by introducing an uninsurable risk. There is also an important difference between reforms that limit claims for economic and non-economic losses. Insurance for economic loss will generally include an implicit cross subsidy and, as a consequence, reforms can alter the ex ante utility for different groups of consumers in different ways.

ML01 SURVIVING THE GLOBAL FINANCIAL CRISIS: THE OUTLOOK IS DISTURBING FOR MEDICAL INDEMNITY

The world is faced with a recession. We can see three disturbing trends: (1) Insurers expect an increase in the number and size of claims, particularly in insurance, such as MI. (2) Investment returns will be lower as a result of lower interest rates and weaker equity markets. (3) All companies face reduced access to funding, as lenders become more reluctant to lend money.To survive these forces, insurers need to be well capitalised and to have effective risk and governance practices in place. No insurers will be immune to the adverse trends listed above. There are some specific issues facing MI insurers: (1) There is emerging evidence that the tort law reforms in MI are being watered down in interpretation, which would cause medical indemnity claims to increase rather than decrease in the future. (2) MI claims are long‐tail in nature, so it is critical that the insurer is strong enough that it will still be around when the claims need to be settled. (3) Because MI claims can be very large, it is important that the MI insurer holds adequate reinsurance, which is the principal way that insurers spread the risk that they take on.By their very nature, insurers are risk takers. However, risk must be properly managed. A good risk management approach forms a useful checklist for anyone seeking review of their insurer: (1) Active and effective underwriting ensures that an appropriate premium is charged for the risk being underwritten. (2) Use of pre‐eminent reinsurers ensures that policyholders can be confident that their claims can be paid.A low‐risk, absolute‐return investment strategy, with minimal exposure to equities, avoids adding risks. 3A strong track record and a listing on the ASX make it easier to raise further capital if so required.

Tort Reform, Defensive Medicine, and the Diffusion of Diagnostic Technologies

This study examines the effects of state-level, tort law reforms on the diffusion of medical technology in the United States. The central thesis focuses on the diffusion of medical technology as an indicator of defensive medicine. Specifically, if physicians reduce their level of defensive medicine in the wake of liability reforms, this will show up as a reduction in the demand for and, more importantly, in the quantity supplied of medical technology. I discover after analyzing panel-data reflecting the availability of hospital-based diagnostic technologies by states and for the years 1987, 1990, and 1993 that differences in the availability of the technology are partially the result of state-level liability reforms. Moreover, there are significant differences in the impact of reforms on established (diffused) technologies and newer (diffusing) technologies. The results provide further evidence of the existence of defensive medicine and of the impact of the legal environment on the diffusion of medical technology.

Taking Disagreement Seriously: Courts, Legislatures and the Reform of Tort Law

This article explores the relevance of disagreement about values and about the functions and effects of law to debates concerning the appropriate relationship between courts and legislatures, common law and statute. Recent developments in tort law provide a context for the discussion. The argument is that in general, political processes of law-making should be preferred judicial processes. Parliaments, motivated by political considerations and sometimes responding to the echo chamber inhabited by journalists and public moralists, may impose exclusions, abolish common law rules, adopt caps on recovery and otherwise act in a decisive and semi-arbitrary way. Judges, on the other hand, have the responsibility of expressing, refining and applying the common law in new circumstances in ways that are logically reasoned and shown to be a consistent development of past decisional law... judges have no authority to adopt arbitrary departures from basic doctrine (Kirby J in Cattanach v Melchior [2003] HCA 38 at [137]).

The Australian Picture

Australia faces a climate of change with accident compensation following recent high profile personal injury cases, the collapse of two major health insurers, and the release of the Ipp Committee Report. This paper follows Australia's response to these developments, focusing on New South Wales' initial reform of tort law, and suggests that the current and proposed changes may cause more harm to an already fragile system.

A Century of Change in Personal Injury Law

The 20th century witnessed enormous change in American personal injury law. Over the past 100 years, torts has emerged out of a largely ineffective backwater of the law. Today, tort doctrine has coalesced around a robust law of negligence, anchored not only in contemporary concerns about fairness, but also in considerations of loss spreading and safety promotion. Over the course of the 20th century, cultural change, change in the legal and other professions, changes in civil procedure and evidence law, the development of liability insurance, and more have made it both much easier and far more natural for accident victims to sue in tort. Work, home, and leisure activities have also altered dramatically between 1900 and 2000, thereby sharply changing the nature of the accidents that Americans now suffer, as compared with the past. During this same era, some important categories of injuries were fully or partly removed from personal injury law, and tort failed to take hold in certain other areas which instead have come to be handled by other parts of our legal system. The 20th century has also seen the development of both broad public and private insurance schemes (social security and group health insurance) and modern regulatory agencies (like the FDA) that have also altered the role of personal injury law. The upshot is that the size and nature of the personal injury law system in the year 2000 differs enormously both from the system in place in the year 1900 and from what it might have been in the year 2000. Vital areas of tort law's realm today, like auto, medical malpractice and product liability cases, are essentially 20th century developments; yet important 20th century concerns about discrimination and the environment are little impacted by tort law. Nevertheless, many of the shortcomings of personal injury law in 1900 that led to worker's compensation as a replacement for tort in the case of occupational injuries still plague tort law's operation in 2000. However, the dramatic rise in the availability and amount of damages plaintiffs can obtain for pain and suffering, as well as the dramatic rise in the political and economic power of plaintiffs' lawyers, make future reform of tort law quite uncertain. As a result, tort law in the 21st century may be as exciting a field in which to teach, write and practice as it has been for much of the 20th.