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Liability Rules (liability + rule)

Distribution by Scientific Domains

Law and Criminology	50%

Selected Abstracts

Accident Law: Efficiency May Require an Inefficient Standard

GERMAN ECONOMIC REVIEW, Issue 1 2002
Laszlo Goerke
In a world with risk-neutral agents in which accidents occur with a positive probability, liability rules will only induce efficient behaviour if these rules impose the full (marginal) costs of an action on the parties. However, institutional restrictions or bilateral activity choices can prevent the full internalization of costs. A mechanism is proposed which guarantees an efficient outcome: monetary fines which are not related to the occurrence of an accident. Such a mechanism requires individuals to violate the standard of care in order to trigger the fine payments. Hence, efficiency requires an excessive standard. [source]

Impact of cost containment measures on medical liability

JOURNAL OF EVALUATION IN CLINICAL PRACTICE, Issue 6 2006
S. Callens PhD
Abstract Rationale, Owing to the growing health care expenditure and the need to improve efficiency, public authorities have since the 1980s changed their policy with respect to health care. Financial pressures encouraged them to investigate methods to control health care costs. One recent method is the enactment of cost containment measures based on clinical practice guidelines (CPGs) that provide financial or administrative sanctions. Aims and objectives, This article describes the legal value of CPGs, the evolution towards cost containment measures based on CPGs, and finally the legal value of these new cost containment measures. It questions whether these measures may have an impact on the medical liability rules and it wants to open the debate on the legal value of these measures based vis-à-vis the professional autonomy of the physician and patients' rights on quality care. Methods, The research for this article is based on a comparative analysis of the legal literature and jurisprudence of a number of legal systems. Results and Conclusions, The article concludes that, as a result of the rising costs, it becomes increasingly difficult for a physician to balance his duty to take care on the one hand and his duty to control costs on the other. Maintaining a high standard of care towards patients becomes difficult. Consequently, one wonders whether the law should then allow the standard of care to be adjusted according to the available means. Until now, courts in a fault based system have not been willing to accept such an adjustment of the standard of care, but it might well be possible that this attitude will change in case of no-fault compensation systems. [source]

Monetary remedies in public law , misdiagnosis and misprescription

LEGAL STUDIES, Issue 1 2006
Roderick Bagshaw
This paper argues that the Law Commission's discussion paper Monetary Remedies in Public Law was vitiated by three flaws prevalent in the critical literature that it surveyed. The first, and most significant, flaw is a tendency to proceed by dislocating legal rules from their context then comparing them as abstract verbal formulae. This is made apparent through a comparison between unreasonableness in the tort of negligence and Wednesbury unreasonableness. The second flaw is the presentation of evaluative conclusions without a sufficient defence of the criteria used to reach them. The third flaw is the adoption of an unhelpfully static perspective as to the purpose of public-law liability rules, which neglects the positive role that they play in structuring good public decision making. The paper concludes by providing a sketch for the design of a research project which transcends these flaws. [source]

A Canadian Copyright Narrative

THE JOURNAL OF WORLD INTELLECTUAL PROPERTY, Issue 5-6 2008
Daniel J. Gervais
Copyright policy, like other major areas of public policy, requires a solid anchoring in fundamental principles. The perceived need to anchor copyright debates in a solid policy context and, hence, to develop a coherent (and hopefully convincing) narrative has been the subject of excellent contemporary research. We are indebted to a number of scholars for their work in this area. The attempt to find normative applications from a historically derived model for copyright is not either. However, the research thus far tends to provide a blurred picture, by espousing justiflcatory theories based on one or many of the following: commercial and personal Interests of authors, understood as property and/or liability rules; commercial interests of publishers and other "rights holders"; and/or the social costs of overprotection and the related economic-driven search for an optimal point of protection. This article looks at pieces in the Canadian narrative puzzle and tries to present a faithful picture of its current stage of evolution. To do so, however, a detour via England is required, because that is whence the soil from Which the Canadian narrative comes. This historical detour will be the focus of Part 1. Part III will suggest a path for the next stages of the Canadian narrative that is both consistent with international norms and hopefully useful in moving the debate forward. The part ends with a brief look at the impact that the linkage with trade rules may have on copyright. [source]