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Mark A Geistfeld - One of the best experts on this subject based on the ideXlab platform.
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Tort law and civil recourse
Michigan Law Review, 2021Co-Authors: Mark A GeistfeldAbstract:In Recognizing Wrongs (Harvard U. Press 2020), Professors John Goldberg and Benjamin Zipursky defend their long-standing thesis that the primary purpose of Tort law is to implement the principle of civil recourse, which “can be summarized as follows: A person who is the victim of a legal wrong is entitled to an avenue of civil recourse against one who wrongs her” (p. 3). To provide an adequate account of Tort law, the principle of civil recourse cannot simply describe the formal structure of Tort Liability; it must also explain the substantive nature of wrongdoing. Most of the book strives to provide such an account, successfully tying the principle of civil recourse to a particular conception of Tort law wholly defined by conduct-based duties of noninjury, the breach of which necessarily involves prohibited behavior that mistreated the plaintiff. Goldberg and Zipursky accordingly conclude that “the point of Tort law is to define and prohibit certain forms of mistreatment, and to provide victims of such mistreatment with the ability to use civil litigation to obtain redress from those who have mistreated them” (p. 266). The argument turns on mistreatment and the associated prohibition of injury-causing behavior, each of which is defined in problematic terms. Many Tort rules function as forms of no-fault or strict Liability, even when not expressly denominated as such. According to Goldberg and Zipursky, these rules are defined by an “unforgiving” behavioral standard not to cause injury that can be violated by even “conscientious and diligent actions” (p. 193). In addition to begging the question of why this behavior meaningfully mistreats the plaintiff, Goldberg and Zipursky do not address the implications of such a rule. On their account, the violation of any Tort duty is prohibited. Insofar as one ought to avoid acting in a legally prohibited manner, dutyholders who cannot comply with an “unforgiving” behavioral obligation should avoid engaging in the risky activity altogether—an extreme obligation that would prevent most of us from driving automobiles. Something about this argument has gone awry. As this Review shows, civil recourse readily accommodates an alternative interpretation of Tort law that substantially limits the relevance of mistreatment, which in turn limits the importance of civil recourse to the remedial aspects of modern Tort law. Although undoubtedly important, the redressive structure of Tort Liability does not supply the “point of Tort law.” Goldberg and Zipursky depict Tort law in a manner that is faithful to its historical origins but is now anachronistic. The role of mistreatment within the early common law stemmed from the customary norms that governed behavior in the state of nature. Lacking protection of a centralized government, individuals needed to defend their honor in order to ward off future attacks. Even in cases of accidental harm, suffering injury at the hands of another necessarily involved a form of mistreatment—a loss of honor—that entitled the victim to obtain compensation from the injurer, a form of interpersonal redress for mistreatment that functioned as a rule of strict Liability. By enforcing these norms, the early common law was fully animated by the principle of civil recourse. Over time, social conditions have changed. Physical security no longer depends on one’s honor. To protect individuals from physical harm, modern Tort law focuses on the prevention and compensation of injury. Mistreatment matters only insofar as it involves highly culpable wrongdoing—a distinctive threat to physical security redressed by punitive damages. Outside of this extraordinary remedy, mistreatment does not substantively shape the Tort rules governing accidental physical harms. Tort Liability still satisfies the principle of civil recourse—plaintiffs receive redress from defendants who have violated their Tort rights and thereby wronged them—but the primary purpose of modern Tort law is defined by its substantive rights and correlative obligations, not by the remedial structure of civil recourse.
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a roadmap for autonomous vehicles state Tort Liability automobile insurance and federal safety regulation
2017Co-Authors: Mark A GeistfeldAbstract:Driver error currently causes the vast majority of motor vehicle crashes. By eliminating the human driver, autonomous vehicles will prevent thousands of fatalities and serious bodily injuries, which make a compelling safety case for policies that foster the rapid development of this technology. Major technological advances have occurred over the past decade, but there is widespread concern that the rate of development is hampered by uncertainty about manufacturer liabilities for a crash. Apparent variations in the requirements of state Tort law across the country make it difficult for manufacturers to assess their Liability exposure in the national market. The patchwork of state laws and resultant uncertainty have prompted calls for the federal safety regulation of autonomous vehicles. The uncertainty seems to be the inevitable result of trying to predict how Tort rules governing old technologies will apply to the new technology of automated driving. As I will attempt to demonstrate, however, well-established Tort doctrines widely adopted by most states, if supplemented by two new federal safety regulations, would provide a comprehensive regulatory approach that would largely dissipate the costly legal uncertainty now looming over this emerging technology. The technology itself largely solves the most vexing Tort problems for reasons that prior analyses have missed. Autonomous vehicles will transform the individualized behavior of human drivers into a collective, systemized form of driving. In effect, a single driver — the operating system — will guide an entire fleet of these vehicles, determining how each vehicle executes the dynamic driving task. When the fully functioning operating system causes a crash, the vehicle was engaged in systemized driving that should be evaluated through performance data for the fleet, regardless of the particular circumstances of the crash. Aggregate driving data can resolve otherwise difficult Tort questions. Most importantly, the manufacturer would necessarily satisfy its Tort obligation regarding the reasonably safe programming or design of the operating system if the aggregate, premarket testing data sufficiently show that the fleet of fully functioning autonomous vehicles performs at least twice as safely as conventional vehicles. To avoid Liability for the crash of such a vehicle, the manufacturer must also adequately warn consumers about this inherent risk. Once again, the risk involves systemized driving performance, and so aggregate driving data provide the appropriate measure. Based on these data, auto insurers can establish the risk-adjusted annual premium for insuring the vehicle. By disclosing such a premium to consumers, the manufacturer would satisfy its obligation to warn about the inherent risk of crash, eliminating this final source of manufacturer Liability for crashes caused by a fully functioning autonomous vehicle. The collective learning of state Tort law can then inform federal regulations governing the reasonable safety of automated driving technologies. The foregoing analysis is based on Tort rules that have been widely adopted across the country. States that do not follow the majority approach might reach different conclusions. To ensure that manufacturers face uniform obligations within the national market, the National Highway Transit Safety Administration could adopt two federal regulations that clearly fit within its proposed regulatory approach. Each derives from the associated Tort obligations concerning adequate premarket testing and disclosure of the inherent risk of crash, respectively. These regulations would largely retain the role of Tort law, because regulatory compliance would also satisfy the associated Tort obligations in most states, while impliedly preempting these claims in the remaining states. The regulations would promote the federal interest in uniformity in a manner that minimizes the displacement of state Tort law, thereby optimally solving the federalism problem. State Tort law can then supplement the federal regulations in important instances, yielding a comprehensive regulatory approach. Within this legal framework, a regulatory-compliant autonomous vehicle would subject the manufacturer to Tort Liability only for crashes caused by malfunctioning physical hardware (strict products Liability); malfunctions of the operating system due to either programming error (same) or third-party hacking (strict Liability again, with an important caveat); the manufacturer’s failure to adequately warn about safe deployment of the vehicle (an ordinary products Liability claim); or the manufacturer’s failure to treat consumers and bystanders equally when designing the vehicle and its operating system (an ordinary negligence claim). A manufacturer would also be subject to Tort Liability for not complying with the federal regulations (negligence per se). The potential liabilities would not be overly uncertain. Autonomous vehicles can be regulated in a manner that ensures reasonable safety without impeding the development of this life-saving technology.
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fault lines in the positive economic analysis of Tort law
Chapters, 2013Co-Authors: Mark A GeistfeldAbstract:Economists routinely engage in positive analysis to identify the efficiency properties of a practice without expressly taking any position on the normative question of whether the practice should be conducted in an efficient manner. Unlike positive economic analysis, the positive economic analysis of Tort law is tied to a particular form of normative judgment. Because there is no consensus about the normative purpose of Tort law, one must engage in an interpretive exercise in order to figure out the substantive rationale for Tort Liability. There is widespread agreement that any viable legal interpretation must first offer a minimally plausible description of the important doctrines and practices comprising the body of law in question. This question of “fit” is addressed by the positive economic analysis of Tort law, making it necessarily relevant to legal interpretation. A number of critics have questioned the descriptive power of efficiency analysis, arguing that positive economic analysis cannot persuasively explain the bilateral structure of Tort Liability, the substantive content of important Liability rules, and the form of judicial reasoning in Tort cases. In this book chapter I show that the structure of Tort Liability does not pose a challenge to the efficiency interpretation; that challenge instead resides in the substantive content of the negligence rule and the form of judicial reasoning in negligence cases. Economic analysts have been studying a version of the negligence rule that fundamentally differs from the rule actually applied by courts. A positive analysis of the correct rule strengthens the efficiency properties of negligence Liability vis-a-vis strict Liability, thereby tightening the fit between allocative efficiency and the practice of Tort law, but a more complete analysis of the negligence rule substantially undermines the positive claim that Tort law can be plausibly interpreted as furthering a norm of allocative efficiency.
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efficiency fairness and the economic analysis of Tort law
Social Science Research Network, 2009Co-Authors: Mark A GeistfeldAbstract:Throughout its history, the economic analysis of Tort law has been largely limited to one question: How should Tort rules be formulated so as to minimize the social cost of accidents? Throughout its history, the economic analysis of Tort law has also been controversial. The two phenomena are related. It is highly controversial whether Tort law should minimize accident costs to the exclusion of fairness concerns, which in turn has fostered the belief that the economic analysis of Tort law is controversial.The most forceful critique has come from those who maintain that Tort Liability is best justified by the principle of corrective justice. This principle is based on an individual right that imposes an obligation or duty on another individual. A duty-holder who violates the correlative right has committed a wrong, creating a duty to repair or correct any wrongful losses suffered by the right-holder. This rights-based principle of justice purportedly rules out the economic analysis of Tort law. Such sweeping claims about the irrelevancy of economic analysis must be understood in context. If the appropriate rationale for Tort Liability is a rights-based principle such as corrective justice, then the justification for a Liability rule does not depend on whether it is allocatively efficient. Economic analysis is “ruled out” for being irrelevant to the rights-based justification for Tort Liability. Allocative efficiency does not need to be the norm of Tort Liability in order to make economic analysis relevant. Economic analysis is not limited to issues of allocative efficiency and cost minimization. It is an open question whether a rights-based Tort system would employ economic analysis, and if so, how.To address this question, I specify the substantive content of an autonomy-based, individual right that is both allocatively inefficient and fully compatible with the relevant requirements of welfare economics. As I have argued at length elsewhere, such a right also provides a good description of Tort law. Thus, the idea that economic analysis is incompatible with or irrelevant to a rights-based principle of justice is mistaken. I conclude by arguing that economic analysis is integral to any plausible rights-based Tort system.
Timothy P Glynn - One of the best experts on this subject based on the ideXlab platform.
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beyond unlimiting shareholder Liability vicarious Tort Liability for corporate officers
2004Co-Authors: Timothy P GlynnAbstract:Although limited Liability is the primary benefit of the corporate form, it continues to generate controversy. In this Article, Professor Glynn argues that extending vicarious Tort Liability to corporate officers is the best way to retain the benefits of limited shareholder Liability while reducing its social costs. Some commentators defend limited shareholder Liability; others contend it inflicts excessive costs, including encouraging unduly risky corporate activities. These costs are most pronounced in the Tort context because Tort victims rarely are able to protect themselves through monitoring corporate activities or bargaining with corporate actors. Proposed reforms almost always focus on extending Liability for corporate activities to some or all shareholders. To date, however, the discussion has largely overlooked a more promising solution: holding top corporate officers responsible for the Torts of their enterprises. Professor Glynn argues that extending vicarious Liability to high-ranking corporate officers, rather than to shareholders, is the most efficient and realistic way to ensure that firms internalize Tort risks. Given their unique role, these officers are the firm's most efficient risk bearers: they are best situated to monitor and avoid risks, and to implement efficient levels of risk spreading among customers, shareholders, and insurers. And officer Liability, unlike shareholder Liability, cannot be evaded through judgment proofing techniques. Ultimately, Professor Glynn's proposal synthesizes modern Tort theory and corporate law theory, and offers a viable resolution to the lingering tension between limited Liability and the aims of our Tort regime.
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beyond unlimiting shareholder Liability vicarious Tort Liability for corporate officers
Vanderbilt Law Review, 2004Co-Authors: Timothy P GlynnAbstract:Although limited Liability is the primary benefit of the corporate form, it continues to generate controversy. In this Article, Professor Glynn argues that extending vicarious Tort Liability to corporate officers is the best way to retain the benefits of limited shareholder Liability while reducing its social costs. Some commentators defend limited shareholder Liability; others contend it inflicts excessive costs, including encouraging unduly risky corporate activities. These costs are most pronounced in the Tort context because Tort victims rarely are able to protect themselves through monitoring corporate activities or bargaining with corporate actors. Proposed reforms almost always focus on extending Liability for corporate activities to some or all shareholders. To date, however, the discussion has largely overlooked a more promising solution: holding top corporate officers responsible for the Torts of their enterprises. Professor Glynn argues that extending vicarious Liability to high-ranking corporate officers, rather than to shareholders, is the most efficient and realistic way to ensure that firms internalize Tort risks. Given their unique role, these officers are the firm's most efficient risk bearers: they are best situated to monitor and avoid risks, and to implement efficient levels of risk spreading among customers, shareholders, and insurers. And officer Liability, unlike shareholder Liability, cannot be evaded through judgment proofing techniques. Ultimately, Professor Glynn's proposal synthesizes modern Tort theory and corporate law theory, and offers a viable resolution to the lingering tension between limited Liability and the aims of our Tort regime. I. INTRODUCTION Debate continues to rage over limited shareholder Liability and the social costs it imposes.1 While proposals flourish for imposing Liability on shareholders to reduce these costs, little attention has been devoted to a more promising solution: vicarious Tort Liability for high-ranking corporate officers. Limited shareholder Liability produces benefits, but it also inflicts costs, including encouraging excessively risky corporate activity. These costs are most pronounced in the Tort context because potential Tort victims rarely can protect themselves by monitoring corporate activities or bargaining with corporate actors. Commentators disagree on limited shareholder Liability's net impact on social utility and what, if anything, should be done to change limited Liability. Some defend the current regime as efficient or at least preferable to alternatives, even in the Tort context.2 Others propose curtailing limited Liability, arguing that vicarious Liability for corporate Torts ought to extend to some or all shareholders in closely held corporations,3 or that courts ought to "pierce the corporate veil" more often.4 Still others have gone much further, arguing that Liability for corporate Torts should extend to all shareholders.5 Few, however, have seriously considered extending vicarious Liability to the firm's other primary stakeholders, corporate management.6 Most who have addressed the idea have dismissed it with little analysis.7 In this post-Enron environment of concerns over corporate accountability and participant behavior, it is time to take seriously the option of holding top corporate officers responsible for the Torts of their enterprises. In a recent Columbia Law Review article, Professor Nina Mendelson offers the most thorough analysis to date of limited shareholder Liability's moral hazard, i.e., its encouragement of excessively risky activities.8 Building on existing scholarship, she contends that the efficiency-based arguments in favor of limited shareholder Liability fail to take into account qualitative differences among shareholders, that these arguments at most support limited Liability only for small or passive investors, and that the limited Liability of controlling shareholders for corporate Torts harms social utility. …
Alexander Tabarrok - One of the best experts on this subject based on the ideXlab platform.
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product Liability and moral hazard evidence from general aviation
The Journal of Law and Economics, 2012Co-Authors: Eric Helland, Alexander TabarrokAbstract:AbstractProduct Liability law reduces the costs of accidents to consumers, thus reducing their incentives to invest in safety. We estimate the impact of Tort Liability on a subset of consumers who have significant control over the probability of an accident: the consumers of general aviation aircraft. The General Aviation Revitalization Act of 1994 exempted manufacturers of small aircraft from product Liability claims when their aircraft reached 18 years of age. We use the exemption at age 18 to estimate the impact of Tort Liability on accidents as well as on a wide variety of behaviors and safety investments by pilots and owners. The results are consistent with moral hazard. When an aircraft is exempted from Tort Liability, the probability that the aircraft will be involved in an accident declines. Direct evidence of pilots’ and owners’ behavior is also consistent with moral hazard.
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product Liability and moral hazard evidence from general aviation
2008Co-Authors: Eric Helland, Alexander TabarrokAbstract:Product Liability law reduces the costs of accidents to consumers thus reducing their incentive to invest in safety. We estimate the impact of Tort Liability on a subset of consumers who have significant control over the probability of an accident, the consumers of general aviation aircraft. The General Aviation Revitalization Act of 1994 exempted small aircraft manufacturers from product-Liability claims when they reached 18 years of age. We use the exemption at age 18 to estimate the impact of Tort Liability on accidents as well as on a wide variety of behaviors and safety investments by pilots and owners. The results are consistent with moral hazard. As an aircraft is exempted from Tort Liability, the robability that the aircraft is involved in an accident declines. Direct evidence on pilot and owner behavior is also consistent with moral hazard. Aircraft exempted from Tort Liability are flown less often and flown less often at night than similar aircraft that are covered. Pilots and owners of exempted aircraft also increase their personal investments in safety, including wearing seat belts and filing flight plans, relative to pilots and owners whose aircraft are still covered by Liability.
Hatsuru Morita - One of the best experts on this subject based on the ideXlab platform.
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criminal prosecution and physician supply
International Review of Law and Economics, 2018Co-Authors: Hatsuru MoritaAbstract:Abstract While there are many evidences of the effect of medical malpractice Tort, research on the effect of medical malpractice criminal sanctions are scarce. This paper tries to identify the causal effect of criminal prosecution utilizing exogenous variations over the likelihood of criminal prosecution. In 2004, a medical accident occurred in Fukushima prefecture, Japan and an obstetrician was prosecuted one year after. This prosecution exogenously changed the likelihood of criminal prosecution in Fukushima prefecture. Using difference-in-differences and synthetic control approach, we estimate the causal effect of criminal prosecution. The prosecution decreased the number of obstetricians by 13% and some of them changed their business to gynecology, which involves lower risk. However, the effect is concentrated on obstetricians, not all physicians. While the relatively weak estimates of Tort Liability in the literature might suggest strengthening the present sanctions, we need to be cautious about such policy. In addition, the paper shows that the sentence of acquittal did not resolve the effect caused by the initial prosecution. This illuminates the importance of criminal prosecution itself and its social sanctions, not subsequent criminal sanctions. It also highlights the importance of risk perception of physicians.
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criminal prosecution and physician supply
Social Science Research Network, 2017Co-Authors: Hatsuru MoritaAbstract:While there are many evidences of the effect of medical malpractice Tort, research on the effect of medical malpractice criminal sanctions are rare. This paper tries to identify the causal effect of criminal prosecution utilizing exogenous variations over the likelihood of criminal prosecution. In 2004, a medical accident occurred in Fukushima prefecture, Japan and an obstetrician was prosecuted one year after. This prosecution exogenously changed the likelihood of criminal prosecution in Fukushima prefecture. Using synthetic control approach, we estimate the causal effect of criminal prosecution. The prosecution decreased the number of obstetricians by 13% and some of them changed their business to gynecology, which involves lower risk. However, the effect is concentrated on obstetricians, not all physicians. While the relatively weak estimates of Tort Liability in the literature might suggest strengthening the present sanctions, we need to be cautious about such policy. In addition, the paper shows that the sentence of acquittal did not resolve the effect caused by the initial prosecution. This illuminates the importance of criminal prosecution itself and its social sanctions, not subsequent criminal sanctions. It also highlights the importance of risk perception of physicians.
Eric Helland - One of the best experts on this subject based on the ideXlab platform.
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unintended consequences of products Liability evidence from the pharmaceutical market
Research Papers in Economics, 2014Co-Authors: Eric Helland, Darius N Lakdawalla, Anup Malani, Seth A SeaburyAbstract:In a complex economy, production is vertical and crosses jurisdictional lines. Goods are often produced by an upstream national or global firm and improved or distributed by local firms downstream. In this context, heightened products Liability may have unintended consequences on product sales and consumer safety. Conventional wisdom holds that an increase in Tort Liability on the upstream firm will cause that firm to (weakly) increase investment in safety or disclosure. However, this may fail in the real-world, where upstream firms operate in many jurisdictions, so that the actions of a single jurisdiction may not be significant enough to influence upstream firm behavior. Even worse, if Liability is shared between upstream and downstream firms, higher upstream Liability may mechanically decrease Liability of the downstream distributor and encourage more reckless behavior by the downstream firm. In this manner, higher upstream Liability may perversely increase the sales of a risky good. We demonstrate this phenomenon in the context of the pharmaceutical market. We show that higher products Liability on upstream pharmaceutical manufacturers reduces the Liability faced by downstream doctors, who respond by prescribing more drugs than before.
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product Liability and moral hazard evidence from general aviation
The Journal of Law and Economics, 2012Co-Authors: Eric Helland, Alexander TabarrokAbstract:AbstractProduct Liability law reduces the costs of accidents to consumers, thus reducing their incentives to invest in safety. We estimate the impact of Tort Liability on a subset of consumers who have significant control over the probability of an accident: the consumers of general aviation aircraft. The General Aviation Revitalization Act of 1994 exempted manufacturers of small aircraft from product Liability claims when their aircraft reached 18 years of age. We use the exemption at age 18 to estimate the impact of Tort Liability on accidents as well as on a wide variety of behaviors and safety investments by pilots and owners. The results are consistent with moral hazard. When an aircraft is exempted from Tort Liability, the probability that the aircraft will be involved in an accident declines. Direct evidence of pilots’ and owners’ behavior is also consistent with moral hazard.
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product Liability and moral hazard evidence from general aviation
2008Co-Authors: Eric Helland, Alexander TabarrokAbstract:Product Liability law reduces the costs of accidents to consumers thus reducing their incentive to invest in safety. We estimate the impact of Tort Liability on a subset of consumers who have significant control over the probability of an accident, the consumers of general aviation aircraft. The General Aviation Revitalization Act of 1994 exempted small aircraft manufacturers from product-Liability claims when they reached 18 years of age. We use the exemption at age 18 to estimate the impact of Tort Liability on accidents as well as on a wide variety of behaviors and safety investments by pilots and owners. The results are consistent with moral hazard. As an aircraft is exempted from Tort Liability, the robability that the aircraft is involved in an accident declines. Direct evidence on pilot and owner behavior is also consistent with moral hazard. Aircraft exempted from Tort Liability are flown less often and flown less often at night than similar aircraft that are covered. Pilots and owners of exempted aircraft also increase their personal investments in safety, including wearing seat belts and filing flight plans, relative to pilots and owners whose aircraft are still covered by Liability.
