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Abstract

This is my third paper on the Restatement (Third) of Torts. In my first paper, The Theory of Tort Doctrine and the Restatement (Third) of Torts, I offered a positive economic theory of the tort doctrine that had been presented in the Restatement (Third) of Torts: General Principles, and also an optimistic vision of how positive theoretical analysis could be integrated with the Restatement project. In my second paper, The Economics of the Restatement and of the Common Law, I set out the utilitarian-economic theory of how the common law litigation process could generate optimal (efficient, wealth-maximizing) rules and compared that process to the process by which the Restatement identifies and articulates rules. In this paper, I am looking back and assessing the connection between positive tort theory and the Restatement. My general argument is that positive tort theory has been successful in explaining the grounds for the common law of torts, and at the same time it remains an underutilized and underexploited resource for the Restatement project.

It seems that large language models (LLMs) are all the rage right now, from Bing’s announcement that it plans to integrate the ChatGPT technology into its search engine to Google’s announcement of its own LLM called “Bard” to Meta’s recent introduction of its Large Language Model Meta AI, or “LLaMA.” Each of these LLMs use artificial intelligence (AI) to create text-based answers to questions.

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Importance  Many physicians believe that most medical malpractice claims are random events. This study assessed the association of prior paid claims (including a single prior claim) with future paid claims; whether public disclosure of prior paid claims affects future paid claims; and whether the association of prior and future paid claims decayed over time.

Objective  To examine the association of 1 or more prior paid medical malpractice claims with future paid claims.

Design, Setting, and Participants  This study assessed the association between prior paid claims (including a single prior claim) with future claims; whether public disclosure of prior claims affects future paid claims; and whether the association of prior and future paid claims decayed over time. This retrospective case-control study included all 881,876 licensed physicians in the US. All data analysis took place between July, 2018 and January, 2023.

Exposure  Paid medical malpractice claims.

Main Outcome and Measures  Association between a prior paid medical malpractice claim and likelihood of a paid claim in a future period, compared with simulated results expected if paid claims are random events. Using the same outcomes, we also assessed whether public disclosure of paid claims affects future paid claim rates.

Results  This study included all 881,876 physicians licensed to practice in the US at the time of the study. Overall, 3.3% of the 841,?961 physicians with 0 paid claims in the prior period had 1 or more claims in the future period vs 12.4% of the 34?,512 physicians with 1 paid claim in the prior period; 22.4% of the 4,189 physicians with 2 paid claims in the prior period; and 37% of the 1,214 physicians with 3 paid claims in the prior period. The association between prior claims and future claims was similar for high-medical-malpractice-risk and lower-risk specialties; 1 prior-period claim was associated with a 3.1 times higher likelihood of a future-period claim for high-risk specialties (95% CI, 2.8-3.4) vs a 4.2 times higher likelihood for lower-risk specialties (95% CI, 3.8-4.6). The predictive power of a prior paid claim for future claims declined gradually as the time since the prior claim increased, for prior or future periods up to 10 years. Public disclosure did not affect the association between prior and future paid claims.

Conclusions and Relevance  In this study of paid medical malpractice claims for all US physicians, a single prior paid claim was associated with substantial, long-lived higher future claim risk, independent of whether a physician was practicing in a high- or low-risk specialty, or whether a state publicly disclosed paid claims. Timely, noncoercive intervention, including education, has the potential to reduce future claims.

Remember the hysteria when Japanese investors bought Rockefeller Center and threatened the American car industry with obliteration? Recent commentary served as the latest example in a long line of xenophobic scare tactics by claiming that “foreign adversaries” are funding “frivolous litigation” to “weaken critical industries” or to obtain trade secrets or intellectual property.

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ICLE Editor-in-Chief R.J. Lehmann joined On Point, a daily discussion program produced by WBUR radio in Boston, for a discussion of  the nation’s first gun-insurance mandate, which took effect this year in San Jose, California. Gun owners in the city are required to have liability insurance or they could be fined a minimum of $250. But can insurance actually help curb gun violence?

“Insurance in and of itself is never going to cover the kinds of violent events that people imagine it would because insurance can’t cover things that you do on purpose,” R.J. Lehmann says.

Guests

• Mayor Sam Liccardo, former mayor of San Jose, California. He championed the city’s first in the nation ordinance requiring gun owners to have gun liability insurance. The insurance mandate took effect Jan. 1st. (@sliccardo)
• Jennifer Mascia, senior news writer and a founding staffer at The Trace, which is a newsroom dedicated to covering gun violence. Read their article: Will Requiring Gun Owners to Buy Insurance Improve Firearm Safety? (@JenniferMascia)
• R.J. Lehmann, editor-in-chief and senior fellow of the International Center for Law and Economics. Read their article: Nation’s First Gun-Insurance Mandates Take Effect. Will They Hold up in Court? (@raylehmann)

Audio of the full episode is embedded below.

As the calendar flips to 2023, among the scores of new laws taking effect are a pair of legislative mandates that would, for the first time anywhere in the country, require firearms owners to obtain and maintain liability insurance. What remains to be seen, however, is whether either measure will survive Second Amendment challenges, particularly given the standard handed by the U.S. Supreme Court in its June 2022 New York State Rifle & Pistol Association Inc. v. Bruen decision.

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Abstract

If a company misbehaves, lawsuits are one way of providing a remedy and encouraging that company and others to behave in the future. If the misbehavior is securities fraud, there are two potential plaintiffs—traders allegedly injured by the fraud may bring a private suit, and the government (through the SEC or DOJ) may sue to enforce the public interest in truthful disclosures of corporate information. If the misbehavior is violations of corporate governance rules, however, only private suits are available. Despite the parallel rationales for marrying private and public attorneys general, the toolkit for protecting the public interest in corporate governance is not as well stocked. This essay imagines what a government cause of action might look like for alleged corporate governance wrongdoing. Many of the pathologies of current corporate governance litigation may be ameliorated by a state-based, public cause of action for breaches of fiduciary duty. Although not without downsides, putting Delaware’s Corporate Governance Police on the beat may improve the governance of American companies, while reducing the amount of vexatious litigation.

High-profile cases like those of Michael Brown in Ferguson, Missouri, and Breonna Taylor in Louisville, Kentucky, have garnered attention from the media and the academy alike about decisions by grand juries not to charge police officers with homicide.

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Lynn Stout, writing in the Harvard Business Review’s blog, claims that hedge funds are uniquely “criminogenic” environments.  (Not surprisingly, Frank Pasquale seems reflexively to approve)…

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