In recent years, a number of prominent scholars have touted the use of litigation as an effective tool for making public health policy. For example, Stephen Teret and Michael Jacobs have asserted that product liability claims against car makers have played a significant role in reducing automobile-related injuries, Peter Jacobson and Kenneth Warner have argued that litigation against cigarette manufacturers has advanced the cause of tobacco control, and Phil Cook and Jens Ludwig have suggested that lawsuits against the (...) firearms industry can reduce gun violence. Critics have attacked this use of litigation as doing more harm than good to public health and as a misuse of the courts. This debate involves two distinct controversies: one over whether the public health benefits of litigation outweigh its costs and the other over the proper role of courts within our system of government. (shrink)

Recent debates about redress mechanisms for medical accident victims have been sidetracked by fears of an American-style medical malpractice crisis. What is required is a framework within which the debate can resume. This paper proposes such a framework by focusing on the compensation and deterrence objectives and placing them in the wider context of the social costs of providing medical services. The framework is then used to assess and compare the effectiveness of differing approaches. In particular, the American and (...) British experiences of litigation, including the concept of 'defensive medicine', are evaluated. Also discussed briefly are alternatives to court-based complaints procedures including 'no-fault' schemes, professional ethics and internal complaints mechanisms. (shrink)

In an ongoing class action suit against large tobacco companies, including Philip Morris, Inc., and R.J. Reynolds Tobacco Co., Judge Jack B. Weinstein of the U.S. District Court for the Eastern District of New York issued an opinion on October 15, 2002 making statistical proof available to address plaintiffs’ common questions and prove required elements of consumer fraud.The dilemmas inherent in tobacco litigation as a mass tort action include overcoming the collective action problem, mobilizing appropriate and persuasive legal theories (...) for recovery, and meeting the standards of proof, all in a timely and cost-effective manner. While some tobacco cases have proceeded on products liability theories of defective or negligent design, many recent cases are grounded in consumer fraud laws. (shrink)

This article deals with issues of litigation based on claims of personal injuries. It briefly describes the way that economists have tended to think about the “litigation process.” It discusses a number of areas of empirical work. It begins with case outcomes and looks at the ways in which the legal system itself can influence matter through the encouragement of information transfer and the rules used for allocating legal costs. It considers the role of lawyers by looking (...) at the effects of different legal fee arrangements on case outcomes. Furthermore, it discusses the liability-based legal system that produces the deterrence benefits often claimed for in conceptual work. The deterrent potentials of liability-based litigations are subject to objective and subjective contexts of the injurer. Finally, the article concludes that alternative means such as the “no fault” scheme that allots compensation irrespective of personal fault of the accused, require greater analysis. (shrink)

This article deals with issues of litigation based on claims of personal injuries. It briefly describes the way that economists have tended to think about the “litigation process.” It discusses a number of areas of empirical work. It begins with case outcomes and looks at the ways in which the legal system itself can influence matter through the encouragement of information transfer and the rules used for allocating legal costs. It considers the role of lawyers by looking (...) at the effects of different legal fee arrangements on case outcomes. Furthermore, it discusses the liability-based legal system that produces the deterrence benefits often claimed for in conceptual work. The deterrent potentials of liability-based litigations are subject to objective and subjective contexts of the injurer. Finally, the article concludes that alternative means such as the “no fault” scheme that allots compensation irrespective of personal fault of the accused, require greater analysis. (shrink)

Recent major amendments of the Code of Civil Procedure of the Republic of Lithuania have added new and improved older procedural instruments that may be used for reimbursement of losses inflicted by the abuse of process. The law now clearly states that the court may take into account improper conduct of the participants when deciding on distribution of litigation costs. A fine in favour of the party aggrieved by the abuse may also be imposed. Therefore, in this article (...) the authors analyse litigation costs and private fine as measures to reimburse losses caused by the abuse of civil procedure. The authors argue that litigation costs can be a fairly effective and relatively easy-to-use procedural instrument, which might not only prevent procedural abuses, but also compensate losses inflicted by it that falls within the category of litigation costs. Therefore, changes to the statutory legislation, expressly empowering a court to deviate from general rules of distributing and awarding litigation costs, by taking into account the propriety of the party’s actions in a procedure and causes that have given rise to those litigation costs, are welcomed. (shrink)

In the United States, there has been tremendous growth in a form of third-party litigation financing where investors buy pieces of lawsuits from plaintiffs. Many scholars believe that this new financing helps to balance the risk tolerance of plaintiffs and defendants and thereby facilitates the resolution of litigation in a way that more closely tracks the goals of the substantive law. In this Article, I ask whether these risk-balancing virtues of claim investing carry over into class action cases. (...) This is a question that has not yet been addressed by scholars because many think it is not possible for financiers to buy pieces of class action lawsuits in the United States. But I show that such investments are neither impractical nor unethical; indeed, it appears that they are already here. It is therefore worth considering whether the investments confer the same social benefits they do in other cases. I argue that although class members do not need a risk transfer device in class action cases because they are almost always risk-neutral in light of their small losses, their lawyers do need such a device. Although this does not necessarily mean that claim investing is socially desirable overall in class actions, the social costs that have thus far been identified with claim investing seem modest compared to the benefits. (shrink)

In recent years, a number of prominent scholars have touted the use of litigation as an effective tool for making public health policy. For example, Stephen Teret and Michael Jacobs have asserted that product liability claims against car makers have played a significant role in reducing automobile-related injuries, Peter Jacobson and Kenneth Warner have argued that litigation against cigarette manufacturers has advanced the cause of tobacco control, and Phil Cook and Jens Ludwig have suggested that lawsuits against the (...) firearms industry can reduce gun violence. Critics have attacked this use of litigation as doing more harm than good to public health and as a misuse of the courts. This debate involves two distinct controversies: one over whether the public health benefits of litigation outweigh its costs and the other over the proper role of courts within our system of government. (shrink)

This Article discusses the impact of the international financial crisis on Brazilian capital markets. While the banking industry was not severely affected, leading nonfinancial corporations experienced severe financial turmoil. Two Brazilian corporations cross-listed in the United States - Sadia S.A. and Aracruz Celulose S.A. - suffered billion-dollar losses when the Brazilian real unexpectedly plummeted in relation to the dollar. Despite earlier disclosure that these companies had engaged only in pure hedging activity, these great losses were found to be the result (...) of their highly speculative trading in currencyderivatives. Consequently, several private lawsuits were filed both in the United States and in Brazil. This Article takes a novel approach to the transnational securities litigation debate by examining the particular consequences of private litigation in a developed and in an emerging country. It compares the types of lawsuits filed and their final outcomes. Despite substantially similar alleged wrongdoing, the outcomes for securities holders in each jurisdiction contrast strikingly. Only U.S. investors of both companies were able to obtain substantial financial recoveries; Brazilian investors obtained none. This Article examines the reasons behind these discrepant results and the consequent economic distributional effects on global securities markets after the U.S. Supreme Court decision in Morrison. The Article argues that Morrison aggravates such shareholder cross-border non pro rata compensation and transfers of company value from foreign to U.S. investors. It identifies a set of costs borne by foreign investors, and so far neglected by scholars, as a consequence of the current status of U.S. and international securities law regimes. These costs are the result not only of the typical “circularity problem” in securities litigation, but also of a “double circularity problem” as they fall on foreign shareholders who also suffered equivalent damages to those experienced by the U.S. class being compensated. The Article then discusses potential policy reforms for fixing transnational securities litigation. (shrink)

There is an alarming trend in the field of medicine, whose portents are ominous but do not seem to shake the complacency and merry making doing the rounds. The wants of the medical man have multiplied beyond imagination. The cost of organizing conferences is no longer possible on delegate fees. The bottom-line is: Crores for a Conference, Millions for a Mid-Term. However, the problem is that sponsors keep a discreet but careful tab on docs. All in all, costs of (...) medicines escalate, and quality medical care becomes a luxury. The whole brunt of this movement is borne by the patient. Companies like GlaxoSmithKline, Bayer, Pfizer, Bristol-Myers Squibb, AstraZeneca, Schering-Plough, Abbott Labs, TAP Pharmaceuticals, Wyeth and Merck have paid millions of dollars each as compensation in the last few years. The financial condition of many pharmaceutical majors is not buoyant either. Price deflation, increased Rand D spending, and litigation costs are the main reasons. In the future, the messy lawsuits situation would no longer be restricted to industry. It would involve academia and practising doctors as well. Indian pharma industry captains, who were busy raking in the profits at present, would also come under the scanner. If nothing else, it means industry and docs will have to sit down and do some soul searching. Both short and long-term measures will have to be put into place. Short-term measures involve reduction in i) pharma spending over junkets and trinkets; ii) hype over 'me too' drugs; iii) manipulation of drug trials; iv) getting pliant researchers into drug trials; iv) manipulation of Journal Editors to publish positive findings about their drug trials and launches; v) and for Indian Pharma, to conduct their own unbiased clinical trial of the latest drug projected as a blockbuster in the West, before pumping in their millions. The long-term measures are related to the way biomedical advance is to be charted. We have to decide whether medicine is to become a corporate enterprise or remain a patient welfare centered profession. A third approach involves an eclectic resolution of the two. Such amount of patient welfare as also ensures profit, and such amount of profit as also ensures patient welfare is to be forwarded. For, profit, without patient welfare, is blind. And patient welfare, without profit, is lame. According to this approach, medicine becomes a patient welfare centered professional enterprise. The various ramifications of each of these approaches are discussed in this monograph. (shrink)

In 2007, there were 182,479 injury-related deaths in the United States — including homicides, suicides, and unintentional injuries – making injuries the leading cause of death for persons under age 45. Also in 2007, nearly 30 million Americans suffered a non-fatal injury serious enough to warrant hospital treatment. The lifetime cost of fatal and non-fatal injuries occurring in 2000 is estimated to exceed $400 billion.Efforts to prevent injuries have often focused on changes to the built environment or potentially dangerous products (...) to reduce risks. Building safety into a product or environment — especially in ways that require little or no user action to confer protection — is often more effective than trying to change consumer behavior. For example, improving the crashworthiness of cars through design changes such as air bags, fire-resistant fuel systems, or electronic stability programs, is more effective than simply trying to teach operators to become safer drivers. (shrink)

The experience of Costa Rica highlights the potential for conflicts between the right to health and fair priority setting. For example, one study found that most favorable rulings by the Costa Rican constitutional court concerning claims for medications under the right to health were either for experimental treatments or for medicines that should have low priority based on health gain per unit of expenditure and severity of disease. In order to better align rulings with priority setting criteria, in 2014, the (...) court initiated a reform in its assessment of claims for medicine. This paper assesses this reform’s impact on the fairness of resource allocation. It finds three effects. First, a reduction in successful claims for experimental medication, which is beneficial. Second, an increase in the success rate of medication lawsuits, which is detrimental because most claims are for extremely cost-ineffective medications. Third, a decline in the number of claims for medicine, which is beneficial because it forestalls such low-priority spending. This paper estimates that, taking all three effects into account, the reform has had a modest net positive impact on overall resource allocation. However, it also argues that there is a need for further reforms to lower the number of claims to low-priority medicines that are granted. (shrink)

The United States is in its fifth year of what is now widely referred to as “the new medical malpractice crisis.” Although some professional liability insurers have begun to report improvements in their overall financial margins, there are few signs that the trend toward higher costs is reversing itself - particularly for doctors and hospitals. In 2003-2004, the presidential election and tort reform proposals in Congress brought heightened public attention to the need for some type of policy intervention to (...) ease the effects of the crisis.The darling of tort reformers at both the federal and state levels has been legislation to limit, or “cap,” damages awarded to plaintiffs in malpractice cases. Health care provider groups, liability insurers, and the Bush Administration have all seized on the example of California's MICRA law, which since 1975 has capped noneconomic damages in malpractice cases at a flat $250,000, as the path to financial recovery. (shrink)

This book shows the surprising dynamism of the field of civil procedure through its examination of a cross section of recent developments within civil procedure from around the world. It explores the field through specific approaches to its study, within specific legal systems, and within discrete sub-fields of civil procedure. The book reflects the latest research and conveys the dynamism and innovations of modern civil procedure - by field, method and system. The book's introductory chapters lay the groundwork for researchers (...) to appreciate the flux and change within the field. The concluding chapters bring the many different identified innovations and developments together to show the field's ability to adapt to modern circumstances, while retaining its coherence even across different legal systems, traditions, fields and analytic approaches. Specifically, in this book the presence of dynamism is explored in the legal systems of the EU, France, the US, Brazil, Australia, the UK and China. So too that dynamism is explored in the contributions' analyses and discussions of the changes or need for change of specific aspects of civil procedure including litigation costs, class actions, derivative actions, pleadings, and res judicata. Furthermore, most of the individual contributions may be considered to be comparative analyses of their respective subjects and, when considered as a whole, the book presents the dynamism of civil procedure in comparative perspective. Those discrete and aggregated comparative analyses permit us to better understand the dynamism in civil procedure - for change in the abstract can be less visible and its significance and impact less evident. While similar conclusions may have been drawn through examinations in isolation, employing comparative analytic methods provided a richer analysis and any identified need for change is correspondingly advanced through comparative analysis. Furthermore, if that analysis leads to a conclusion that change is necessary then comparative law may provide pertinent examples for such change - as well as methodologies for successfully transplanting any such changes. In other words, as this book so well reflects, comparative law may itself usefully contribute to dynamism in civil procedure. This has long been a raison d'être of comparative law and, as clear from this book's contributions, in this particular time and field of study we find that it is very likely to achieve its lofty promise. (shrink)

The relationship between science, law and justice has become a pressing issue with US Supreme Court decisions beginning with Daubert v. Merrell-Dow Pharmaceutical. How courts review scientific testimony and its foundation before trial can substantially affect the possibility of justice for persons wrongfully injured by exposure to toxic substances. If courts do not review scientific testimony, they will deny one of the parties the possibility of justice. Even if courts review evidence well, the fact and perception of greater judicial scrutiny (...) increases litigation costs and attorney screening of clients. Mistaken review of scientific evidence can decrease citizen access to the law, increase unfortunate incentives for firms not to test their products, lower deterrence for wrongful conduct and harmful products, and decrease the possibility of justice for citizens injured by toxic substances. This book introduces these issues, reveals the relationships that pose problems, and shows how justice can be denied. (shrink)

Many major medical institutions have now embraced the idea that it is best to be honest with patients and families when an error causes harm that could have been avoided. This kind of disclosure improves patient safety and quality of care; enhances satisfaction for patients, families, and providers; and reduces malpractice litigation costs. The University of Michigan has perhaps the best‐known program. Since 2001, that institution has seen more than a 55 percent drop in the number of new (...) malpractice claims filed, a comparable reduction in lawsuits, and a dramatic drop in both defense costs and malpractice payouts—money then redirected toward quality improvement. A few states have also embraced this approach, sometimes known as “Candor” (for “communication and optimal resolution”). Yet all of these efforts face a major challenge. Although many physicians would like very much to achieve insight, reconciliation, and quality improvement in just this way, many fear that money paid to resolve an incident in which they were involved can result in a lifelong black mark in the National Practitioner Data Bank. (shrink)

The cost of health care, its growing share of the gross domestic product, and dire predictions about the future are a major political and economic issue in the U.S. The American legal system is commonly viewed as a significant part of the problem, particularly by those who believe that medical providers engage in defensive medicine in an effort to avoid malpractice litigation. Yet scholars and commentators in the U.S. have shown relatively little interest in how other nations manage legal (...) conflict over health care and whether they might learn something from abroad about the relationship between malpractice litigation and the health care system more generally.To that end, this article analyzes the Japanese health care experience, specifically the management of what are variously called adverse outcomes, medical accidents, and medical malpractice. How frequently do Japanese patients sue their doctors? Are medical malpractice litigation rates in Japan rising? If so, what is being done to control the increase and its impact on medical care? How well is Japan doing when it comes to balancing the needs of patients who believe they are victims of medical negligence with those of providers who think they are being unfairly accused? These are the questions, about Japan, that need to be asked by those interested in the nexus of law and health care in the U.S. (shrink)

Given the costs of litigation high-profile court cases about withdrawing life-sustaining medical treatment for seriously ill children in England & Wales tend to be followed by discussion about how to avoid similar cases in future. Whilst two proposals, mediation and replacing the best interests standard with a harm threshold, have received broad attention, a proposal to replace the court by a specialist review committee has not been further investigated. This article analyses the effects of a putative replacement of (...) the courts by a specialist review committee using the process enacted by the futility clauses in the Texas Advance Directives Act (TADA) as a model. Under TADA life-sustaining treatment may legally be withdrawn when a review committee deems it futile and no alternative healthcare provider can be identified. The investigation finds that installing a national review committee with the power to decide whether life-sustaining treatment is futile would have reduced the number of court cases about withdrawal thereof in England & Wales to a handful over the last 3 decades. In addition to shorter procedures and costs savings, a national review committee modelled after TADA would have advantages for both clinicians and parents. Advantages for clinicians are more limited exposure to delivery of clinical care that may cause moral distress and less exposure to adverse press and social media content. Advantages for parents are that the process would establish them as ethical decision makers and offer the possibility of a transfer of the care of the child provided an alternative healthcare provider can be found. As such decisions taken by a specialist review committee may be more acceptable for parents than those of the courts. (shrink)

This Note offers a normative critique of cost-benefit analysis, one informed by deontological moral theory, in the context of the debate over whether tort litigation or a non-tort approach is the appropriate response to mass harm. The first Part argues that the difference between lay and expert intuitions about risk and harm often reflects a difference in normative judgments about the existing facts, rather than a difference in belief about what facts exist, which makes the lay intuitions more defensible. (...) The second Part considers how tort has dealt with this divergence between lay and expert perspectives. It also evaluates how tort's approach has differed from that of public law approaches to accident law, such as legislative compensation and risk regulation by administrative agencies. Ultimately, tort's ability to recognize the value of lay intuitions supports retaining the tort perspective as part of our societal arsenal of responses to risk and harm. This ability can also support a pro-tort perspective in two practical debates in the arena of tort law: that over preemption of tort law by administrative agency judgments, and that over access to tort recovery as part of a no-fault system. (shrink)

Out-of-court proceedings or alternative dispute resolution (ADR) is a peaceful, voluntary alternative method for settling disputes without litigation in the court. ADR institutions usually use a third party to help the consumer and the trader to reach a solution. The main purpose of this article is to share the main insights and experience about the out-of-court proceedings in various countries and European Union Member States, to discuss the most important problems concerning ADR and propose possible solutions of these problems. (...) First of all, in this article, ADR is presented and its main advantages are outlined. For example, ADR institutions are indeed a low-cost and quick alternative for consumers for settling disputes with businesses. ADR mechanisms are highly diverse. There are public and private institutions as well as institutions established on the basis of cooperation between the public sector and the industry or consumer organizations and the industry. Although there is a high correlation between the nature of the institution and the funding, i.e. private institutions are usually financed by the industry and public institutions by public funds, ADR bodies established by public law can also be financed by the industry (especially in highly regulated markets). In the majority of the institutions, the participation of the industry in the ADR procedure is voluntary. (shrink)

Out-of-court proceedings or alternative dispute resolution (ADR) is a peaceful, voluntary alternative method for settling disputes without litigation in the court. ADR institutions usually use a third party to help the consumer and the trader reach a solution. The main purpose of this article is to share the main insights and experience about the out-of-court proceedings in various countries and present main trends of ADR development. First of all, in this article, ADR is presented and its main advantages or (...) disadvantages, main reasons of its origin are outlined. For example, ADR institutions are indeed a low-cost and quick alternative for consumers to settle disputes with businesses. These are the main reasons why ADR originated and developed so fast in the United States of America. Secondly, it is important to analyse various definitions used to describe ADR and its characteristics, because it is a very complicated and complex phenomenon. ADR and the principle of legal accessibility are also very closely related issues which are deeply analysed in this article. (shrink)

The second edition of this volume is a comprehensive, practical and up-to-date analysis of the principles and rules of construction and post-probate issues, including how the courts interpret wills once they become the subject of litigation. This comprehensive work takes account of all recent case law-as well as new legislation such as the Land and Conveyancing Law Reform Act 2009-pertaining to trustees, trusts, trusts of land, and the amendments of the Rules of the Superior Courts by SI No 254 (...) of 2016 relating to the conduct of trials, and SI No 255 of 2016 which deals with pre-trial procedures. Part 1 provides the principles and rules of construction, and the rules of intrinsic and extrinsic evidence, which are applied by the courts when attempting to ascertain and give effect to a testator's intention from vague or uncertain language used by him or her in creating gifts. Part 2 deals with issues that may arise in construction suits concerning, not only uncertain language used in the creation of gifts, but also the actual legal validity of such gifts. Part 3 supplies a useful constructive and interpretative methodology that may be applied for construing and interpreting relevant statutory provisions. Part 4 deals with the forms and procedures required for instituting construction suits, and with issues involving the award of costs. This book is written primarily with legal practitioners in mind and will be of practical use in construction and probate litigation matters. It will also be a useful resource for academic lawyers, students engaged in professional courses, and those undertaking law degrees. [Subject: Wills & Trusts, Irish Law]. (shrink)

Financial misconduct has come into the spotlight in recent years, causing market regulators to increase the reach and severity of interventions. We show that at times the economic benefits of illicit financial activity outweigh the costs of litigation. We illustrate our argument with data from the US Securities and Exchanges Commission and a case of investment misconduct. From the neoclassical economic paradigm, which follows utilitarian thinking, it is rational to engage in misconduct. Still, the majority of professionals refrain (...) from misconduct, foregoing economic rewards. We suggest financial activity could be reimagined taking into account intrinsic and prosocial motivations. A virtue ethics framework could also be applied, linking financial behavior to the quest for moral excellence and shared flourishing. By going beyond utilitarian thinking and considering alternative models, we offer a fuller account of financial behavior and a better perspective from which to design deterrence methods. (shrink)

Much of the commentary in the wake of the Charlie Gard litigation was aimed at apparent shortcomings of the law. These include concerns about the perceived inability of the law to consider resourcing issues, the vagueness of the best interests test and the delays and costs of having disputes about potentially life-sustaining medical treatment resolved by the courts. These concerns are perennial ones that arise in response to difficult cases. Despite their persistence, we argue that many of these (...) criticisms are unfounded. The first part of this paper sets out the basic legal framework that operates when parents seek potentially life-sustaining treatment that doctors believe is against a child’s best interests, and describes the criticisms of that framework. The second part of the paper suggests an alternative approach that would give decision-making power to parents, and remove doctors’ ability to unilaterally withhold or withdraw life-sustaining treatment that they regard is futile. This proposal is grounded in several values that we argue should guide these regulatory choices. We also contend that the best interests test is justifiable and since the courts show no sign of departing from it, the focus should be on how to better elucidate the underlying values driving decisions. We discuss the advantages of our proposed approach and how it would address some of the criticisms aimed at the law. Finally, we defend the current role that the judiciary plays, as an independent state-sanctioned process with a precedent-setting function. (shrink)

Competitor intelligence, information that helps managers understand their competitors, is highly valued in today's marketplace. Firms, large and small, are taking a more systematic approach to competitor intelligence collection. At the same time, information crimes and litigation over information disputes appear to be on the rise, and survey data show widespread approval of unethical and questionable intelligence-gathering methods. Despite these developments, few corporations address the ethics of intelligence gathering in their corporate codes of conduct. Neither managers nor management educators (...) have paid sufficient attention to this topic. From a review of questionable intelligence-gathering practices reported in various literatures, the author identifies some important ethical principles to help managers draw the line between legitimate and illegitimate methods of information acquisition. The paper also discusses the costs of failure to heed these principles and suggests steps managers can take to provide ethical leadership in this area. (shrink)

The current rise in malpractice litigation has led to concern in the research community as to the prospect of litigation against researchers. Clearly as the responsibility for the day-to-day conduct of the research falls upon the researchers they will be potentially liable should there be negligence in the conduct of the research project itself. But to what extent can the research ethics committee and its members be held liable should harm result to the research subject? How far does (...) the prospect of the threat of litigation equate with the reality of the prospect of liability? Although the NHS research governance framework suggests that primary responsibility for the conduct of the trial is with the researcher this does not mean that REC members will be immune from actions in tort where research subjects suffer harm in the conduct of a research project approved by their NHS REC. This paper focuses upon the prospect for liability in the law of tort of NHS RECs and their members. While in practice the vast majority of such claims are unlikely to be successful members of RECs may incur resultant legal costs as a consequence of involvement in proposed litigation. It is submitted that the scope of indemnity provision provided to RECs and their members should be precisely determined, otherwise there is a real prospect that the risk of malpractice litigation may deter individuals from serving on such committees. (shrink)

"Procedural Justice" offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural legitimacy thesis: participation rights are essential for the legitimacy of adjudicatory procedures. The theory yields two principles of procedural justice: the accuracy principle and the participation principle. The two principles require a system of procedure to aim at accuracy and to afford reasonable rights of participation qualified by a practicability constraint. The Article begins in Part I, Introduction, with two (...) observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question - what is procedure? - is the most difficult and requires an extensive answer: Part II, Substance and Procedure, defines the subject of the inquiry by offering a new theory of the distinction between substance and procedure that acknowledges the entanglement of the action-guiding roles of substantive and procedural rules while preserving the distinction between two ideal types of rules. The key to the development of this account of the nature of procedure is a thought experiment, in which we imagine a world with the maximum possible acoustic separation between substance and procedure. Part III, The Foundations of Procedural Justice, lays out the premises of general jurisprudence that ground the theory and answers a series of objections to the notion that the search for a theory of procedural justice is a worthwhile enterprise. Sections II and III set the stage for the more difficult work of constructing a theory of procedural legitimacy. Part IV, Views of Procedural Justice, investigates the theories of procedural fairness found explicitly or implicitly in case law and commentary. After a preliminary inquiry that distinguishes procedural justice from other forms of justice, Part IV focuses on three models or theories. The first, the accuracy model, assumes that the aim of civil dispute resolution is correct application of the law to the facts. The second, the balancing model, assumes that the aim of civil procedure is to strike a fair balance between the costs and benefits of adjudication. The third, the participation model, assumes that the very idea of a correct outcome must be understood as a function of process that guarantees fair and equal participation. Part IV demonstrates that none of these models provides the basis for a fully adequate theory of procedural justice. In Part V, The Value of Participation, the lessons learned from analysis and critique of the three models are then applied to the question whether a right of participation can be justified for reasons that are not reducible to either its effect on the accuracy or its effect on the cost of adjudication. The most important result of Part V is the Participatory Legitimacy Thesis: it is (usually) a condition for the fairness of a procedure that those who are to be finally bound shall have a reasonable opportunity to participate in the proceedings. The central normative thrust of Procedural Justice is developed in Part VI, Principles of Procedural Justice. The first principle, the Participation Principle, stipulates a minimum (and minimal) right of participation, in the form of notice and an opportunity to be heard, that must be satisfied (if feasible) in order for a procedure to be considered fair. The second principle, the Accuracy Principle, specifies the achievement of legally correct outcomes as the criterion for measuring procedural fairness, subject to four provisos, each of which sets out circumstances under which a departure from the goal of accuracy is justified by procedural fairness itself. In Part VII, The Problem of Aggregation, the Participation Principle and the Accuracy Principle are applied to the central problem of contemporary civil procedure - the aggregation of claims in mass litigation. Part VIII offers some concluding observations about the point and significance of Procedural Justice. (shrink)

Background: Informed consent in the modern era is a common and important topic both for the well-informed patient and to prevent unnecessary litigation. However, the effectiveness of informed consent in trauma patients is an under-researched area. This paper aims to assess the differences in patient recall of the consent process and desire for information by performing a comparative analysis between orthopaedic trauma and elective patients. Methods: Information from 41 consecutive elective operations and 40 consecutive trauma operations was collected on (...) the first post-operative day. Results: 100% of elective patients and 90% of trauma patients knew what operation they had received (p = 0.06). Overall recall of complications was poor, but was significantly lower in trauma patients compared with elective patients (62% vs 22%, p<0.001). 30% of trauma patients desired more information about their operation compared to 12% of elective patients (p = 0.049), although only 35% of trauma patients wanted written as well as verbal explanations, compared to 85% of elective patients p<0.001). Overall 100% of elective and 90% of trauma patients were happy with the consent process (p = 0.06). Subset analysis of neck of femur compared to other trauma patients showed that the above factors were not significantly different between the two groups. Conclusions: Recall of complications in the trauma patients is significantly lower than in elective patients, although both groups scored poorly overall. Repeated verbal explanations should be reinforced with the option of additional information leaflets for trauma operations. Further research into the usefulness of DVDs for commonly performed operations is warranted, although official internet resources may be more cost-effective. (shrink)

It could be argued that tort law is failing, and arguably an example of this failure is the recent public liability and insurance (‘PL&I’) crisis. A number of solutions have been proposed, but ultimately the chosen solution should address whatever we take to be the cause of this failure. On one account, the PL&I crisis is a result of an unwarranted expansion of the scope of tort law. Proponents of this position sometimes argue that the duty of care owed by (...) defendants to plaintiffs has expanded beyond reasonable levels, such that parties who were not really responsible for another’s misfortune are successfully sued, while those who really were to blame get away without taking any responsibility. However people should take responsibility for their actions, and the only likely consequence of allowing them to shirk it is that they and others will be less likely to exercise due care in the future, since the deterrents of liability and of no compensation for accidentally self-imposed losses will not be there. Others also argue that this expansion is not warranted because it is inappropriately fueled by ‘deep pocket’ considerations rather than by considerations of fault. They argue that the presence of liability insurance sways the judiciary to award damages against defendants since they know that insurers, and not the defendant personally, will pay for it in the end anyway. But although it may seem that no real person has to bear these burdens when they are imposed onto insurers, in reality all of society bears them collectively when insurers are forced to hike their premiums to cover these increasing damages payments. In any case, it seems unfair to force insurers to cover these costs simply because they can afford to do so. If such an expansion is indeed the cause of the PL&I crisis, then a contraction of the scope of tort liability, and a pious return to the fault principle, might remedy the situation. However it could also be argued that inadequate deterrence is the cause of this crisis. On this account the problem would lie not with the tort system’s continued unwarranted expansion, but in the fact that defendants really have been too careless. If prospective injurers were appropriately deterred from engaging in unnecessarily risky activities, then fewer accidents would ever occur in the first place, and this would reduce the need for litigation at its very source. If we take this to be the cause of tort law’s failure then our solution should aim to improve deterrence. Glen Robinson has argued that improved deterrence could be achieved if plaintiffs were allowed to sue defendants for wrongful exposure to ongoing risks of future harm, even in the absence of currently materialized losses. He argues that at least in toxic injury type cases the tortious creation of risk [should be seen as] an appropriate basis of liability, with damages being assessed according to the value of the risk, as an alternative to forcing risk victims to abide the outcome of the event and seek damages only if and when harm materializes. In a sense, Robinson wishes to treat newly-acquired wrongful risks as de-facto wrongful losses, and these are what would be compensated in liability for risk creation (‘LFRC’) cases. Robinson argues that if the extent of damages were fixed to the extent of risk exposure, all detected unreasonable risk creators would be forced to bear the costs of their activities, rather than only those who could be found responsible for another’s injuries ‘on the balance of probabilities’. The incidence of accidents should decrease as a result of improved deterrence, reduce the ‘suing fest’, and so resolve the PL&I crisis. So whilst the first solution involves contracting the scope of tort liability, Robinson’s solution involves an expansion of its scope. However Robinson acknowledges that LFRC seems prima facie incompatible with current tort principles which in the least require the presence of plaintiff losses, defendant fault, and causation to be established before making defendants liable for plaintiffs’ compensation. Since losses would be absent in LFRC cases by definition, the first evidentiary requirement would always be frustrated, and in its absence proof of defendant fault and causation would also seem scant. If such an expansion of tort liability were not supported by current tort principles then it would be no better than proposals to switch accident law across to no-fault, since both solutions would require comprehensive legal reform. However Robinson argues that the above three evidentiary requirements could be met in LFRC cases to the same extent that they are met in other currently accepted cases, and hence that his solution would therefore be preferable to no-fault solutions as it would only require incremental but not comprehensive legal reform. Although I believe that actual losses should be present before allowing plaintiffs to seek compensation, I will not present a positive argument for this conclusion. My aim in this paper is not to debate the relative merits of Robinson’s solution as compared to no-fault solutions, nor to determine which account of the cause of the PL&I crisis is closer to the truth, but rather to find out whether Robinson’s solution would indeed require less radical legal reform than, for example, proposed no-fault solutions. I will argue that Robinson fails to show that current tort principles would support his proposed solution, and hence that his solution is at best on an even footing with no-fault solutions since both would require comprehensive legal reform. (shrink)

In an effort to ensure access to justice, Australian courts have fashioned a unique hybrid opt in-opt out process known as “closed classes.” The rationale that underlies closed classes is to prevent free-riding that may undercut the position of funders and class action law firms reliant upon entering into agreements with a critical mass of class members. However, multiple closed classes also pose problems for respondents seeking the comfort of finality. To secure settlement and thus ultimately benefit participating class members, (...) Australian courts have formulated a procedure whereby the closed class is opened and nonparticipating class members are invited to either register their claims or opt out so that thereafter those who do not register and those who opt out are effectively precluded by res judicata from making further related claims. We argue that Australian courts’ support of closed classes, while driven by pragmatism, has produced unintended consequences. Many relate to the ethical dilemmas faced by class action law firms and litigation funders seeking to advance the interests of participating class members over and above those of nonparticipating class members. The Full Federal Court has recently approved an alternative common fund approach. However, questions remain as to whether Australian courts are appropriately equipped to measure and compare the alternative transaction costs associated with the current and proposed approach, and whether they are appropriately equipped to determine the commercial rectitude and fairness of litigation funding agreements. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Women and Health Research:A Report from the Institute of MedicineAnna C. Mastroianni (bio), Ruth Faden (bio), and Daniel Federman (bio)In recent years, claims have been made by segments of the research community and by women's health advocacy groups that clinical research practices and policies have not benefitted women's health to the same extent as men's health. Central to these claims has been an assertion that women have been inadequately (...) represented as subjects of clinical studies and that as a result neither health conditions unique to women—e.g., menopause—nor women's manifestations of health problems affecting both sexes—e.g., heart disease—have been investigated sufficiently.The scientific community, including federal agencies that sponsor and regulate clinical studies, is increasingly responsive to these claims and is taking steps to raise the level of women's participation in clinical studies. Controversy and concern have surrounded these actions, however. Two of the claims that have been made are: (1) that women are more difficult to study than men because of their cyclical hormonal changes; and (2) that conducting gender-specific subgroup analyses would increase the size of study populations, raise the cost of studies, and thereby reduce the number of studies that could be performed with the limited resources available. In addition, controversy over the inclusion of women of childbearing potential and pregnant women has been particularly salient. Concerns have been expressed about avoiding potential harm to existing or potential fetuses and about the possible legal and financial ramifications of such harm. A further concern involves the perceived difficulties in enrolling women in studies and retaining them for the duration of the studies.Against this backdrop, the Office of Research on Women's Health at the National Institutes of Health (NIH) asked the Institute of Medicine (IOM) in October 1992 to establish the Committee on the Ethical and Legal Issues Relating to the Inclusion of Women in Clinical Studies. The Committee's charge was to: (1) consider the ethical and legal implications of including women, particularly pregnant women and women of childbearing potential, in clinical studies; (2) examine known instances of litigation regarding injuries to research subjects [End Page 55] and describe existing legal liabilities and protections; and (3) provide practical advice on these issues for consideration by NIH, institutional review boards (IRBs), and clinical investigators.The 16 Committee members came from diverse backgrounds: bioethics, law, epidemiology and biostatistics, public health policy, obstetrics and gynecology, clinical research, pharmaceutical development, social and behavioral sciences, and clinical evaluative sciences.1 Chaired by two of the authors of this article, Ruth Faden and Daniel Federman, and coordinated by the third, IOM Study Director Anna Mastroianni, the Committee met five times over a fourteen-month period, convened a one-and-one-half day invitational workshop, and commissioned several background papers. The Committee's deliberations were complicated by the announcement of new federal policies late in its term. Specifically, the Food and Drug Administration (FDA) issued guidelines (FDA 1993) to replace its 1977 guidelines, which prohibited the inclusion of women of childbearing potential in early phases of most clinical drug trials. In addition, Congress passed the NIH Revitalization Act of 1993 (P.L. 103-43), which contains provisions mandating the inclusion of women and racial and ethnic minorities in NIH-sponsored clinical research. In February 1994, the IOM Committee publicly issued its final report and recommendations, Women and Health Research: Ethical and Legal Issues of Including Women in Clinical Studies, publishing the workshop presentations and commissioned papers in a separate volume.Deliberations of the CommitteeA number of issues arose at the outset as the Committee considered its charge. A few members initially believed that verification of the underrepresentation of women relative to men in clinical studies as a whole was a prerequisite to providing policy recommendations. Others believed that such an examination would be an important contribution to the knowledge base, but that it was not necessary for addressing the Committee's charge. As summarized in the Committee's report, the Committee's research indicated that firm conclusions about the relative underrepresentation of women could not be drawn from the available data because of the lack of systematic information... (shrink)

Decision‐aiding software is probably the most important technological innovation from the perspective of lawyer decision‐making, as contrasted to efficient office management. That kind of technological breakthrough can be helpful to lawyers in negotiating settlements favorable to their clients without expensive litigation. The technology makes use of benefit‐cost analysis, multi‐criteria decision analysis, spreadsheet software, and especially super‐optimizing analysis whereby plaintiffs, defendants, and other parties can all come out ahead of their best initial expectations simultaneously. Decision‐aiding software can also be helpful (...) to lawyers in evaluating alternative precedents, statutes, regulations, and other legal policies to arrive at versions favorable to their clients without an expensive adoption campaign. (shrink)

This Article proposes a thought-experiment with regard to the administration of class actions. It is almost axiomatic that class actions are determined through a single “certification.” However, class actions can be certified through a tiered certification, e.g., a preliminary certification on a more lenient standard, followed by a full certification. Flattening the certification process allows a richer set of solutions to familiar dilemmas. Currently, a noncertified class does not bar subsequent certification attempts. Focusing on this problem, this Article demonstrates that (...) tiered certification is a superior solution — members of a class that passed the first certification but not the second receive at least minimal procedural protection and thus could be precluded from serial certification attempts. More generally, tiered certification can better handle several species of collective litigation, which can be referred to as semi-class actions. Collective proceedings, whose certification costs are greater than their social benefit, do not justify a comprehensive class treatment. But to the extent that these cases entail some modest social value, they deserve to pass a less onerous, preliminary certification. The Article discusses cases that fit this pattern, for instance prospective, class-wide relief for technical regulatory violations. (shrink)

The mismatch between the demand for, and supply of, health products has led to the increasing involvement of courts worldwide in health promotion and marketing. This study critically examines the implementation of one country’s Milk Code within the framework of the International Code of Marketing of Breast-Milk Substitutes, and the efficacy of the judicial process in balancing corporate marketing and state regulatory objectives. Drawing upon the Philippine experience with its own Milk Code, it evaluates the capacities of courts to determine (...) policy costs and risks against the benefits of delineating and containing corporate marketing strategies for milk substitutes and supplements. The study finds that the methodological and information-based challenges faced by courts in resolving multi-dimensional health issues may not be overcome without serious questions concerning the legitimacy of the judicial process itself. Despite the deficiencies of litigation and adjudication, the study notes the catalytic potential of a judicial decision in opening up vital policy space for future renegotiations among rival parties and interests. Third-party intervention is explored relative to this catalytic function. (shrink)

This paper describes a tool for assisting lawyers and paralegal teams during document review in eDiscovery. The tool combines a machine learning technology (CategoriX) and advanced multi-touch interface capable of not only addressing the usual cost, time and accuracy issues in document review, but also of facilitating the work of the review teams by capitalizing on the intelligence of the reviewers and enabling collaborative work.

This article examines the question of whether private obstetric care in South Africa can be saved in view of the escalation in medical and legal costs brought about by a dramatic increase in medical negligence litigation. This question is assessed with reference to applicable medical and legal approaches. The crux of the matter is essentially a question of affordability. From a medical perspective, it seems that the English system as well as American perspectives may be well suited to (...) the SA situation. Legal approaches are assessed in the context of the applicable medicolegal framework in SA, the present nature of damages and compensation with reference to obstetric negligence liability, as well as alternative options to the present system based on fault. It is argued, depending on constitutional considerations, that a system of damages caps for noneconomic damages seems to be the most appropriate and legally less invasive system in conjunction with the establishment of a state excess insurance fund. (shrink)

The perspective of online dispute resolution is to develop an online electronic system aimed at solving out-of-court disputes. Among ODR schemes, eMediation is becoming an important tool for encouraging the positive settlement of an agreement among litigants. The main motivation underlying the adoption of eMediation is the time/cost reduction for the resolution of disputes compared to the ordinary justice system. In the context of eMediation, a fundamental requirement that an ODR system should meet relates to both litigants and mediators, i.e. (...) to enable an informed negotiation by informing the parties about the rights and duties related to the case. In order to match this requirement, we propose an information retrieval system able to retrieve relevant court decisions with respect to the disputant case description. The proposed system combines machine learning and natural language processing techniques to better match disputant case descriptions with court decisions. Experimental results confirm the ability of the proposed solution to empower court decision retrieval, enabling therefore a well-informed eMediation process. (shrink)

A 78-year-old Chinese woman joined a clinical trial sponsored by a Pharmaceutical companies. Unfortunately a serious Serious Adverse Event occurred. The sponsor paid for the cost of the medical care arising from the SAE, but refused the family’s request for compensation. The family then sued the company and the hospital in Beijing. Although the SAE was related to a complication of lower extremity angiography and not the drug itself, it was a direct consequence of participating in the trial. According Good (...) Clinical Practice, a set of regulations promulgated under Chinese law, “the sponsor should provide Insurance to those human subjects who participate in clinical trials, cover the cost of Treatment and the corresponding economic compensation for the occurrence of the harm or death associated with the trial”. The court ordered the trial sponsor to provide a translation of the company’s insurance policy, so that the court could understand the amount of compensation available to the Patient under the policy, but the sponsor never surrendered either the documentation or a translation. Consensus was never reached about the amount of compensation due to the patient through negotiation with the hospital, the company and the family. The Litigation ended after nine hearings and five long years. This chapter provides an ethical analysis of the case relative to at least three areas of Risks of Exploitation when a major, international Pharmaceutical companies sponsors clinical research in a country with an immature legal system and where Research participants have limited resources. (shrink)

The transformation of health-care delivery from fee-for-service medicine to managed care represents a fundamental philosophical shift away from the prevailing medical ethos that the needs of the individual patient take precedence over competing social values, such as reducing health-care costs. In managed care, financial incentives to reduce health-care utilization may result in denying an individual’s claim for medical services.Litigation challenging managed care’s resource allocation decisions often presents the need to resolve conflicting social policy goals, such as the tension (...) between an individual patient’s access to health care and a managed care organization’s need to restrain costs. Conflicts may arise when a patient’s desire for unconstrained health care clashes with a provider’s and an insurer’s cost containment strategies. In turn, cost containment strategies may raise questions about restrictions on physician autonomy and conflicts among stakeholders for control over resource allocation decisions. (shrink)

This study attempts an exposition of different perceptions of obligation to medical treatment that have emerged from the Islamic theological understanding and how they contribute to diversity of options and flexibility in clinical practice. Particularly, an attempt is made to formulate an Islamic perspective on ordinary and extraordinary means of medical treatment. This distinction is of practical significance in clinical practice, and its right understanding is also important to public funded healthcare authorities, guardians of the patients, health and life insurance (...) institutions, and employers who provide health care coverage to their employees. Not only these parties, but also lawyers and justice administration functionaries such as public prosecutors and judges are in need of understanding this distinction to deal with relevant litigations. The distinction could be made regarding terminally ill patients and non-terminally ill patients separately. The essential factors that matter in making the distinction between ordinary and extraordinary means of treatment are: (1) patient capacity (2) expert advice, and (3) nature of medication. Regarding terminally ill patients, medical treatment can become extraordinary because of (1) patient capacity and (2) nature of medication. In both these case the deciding condition applies: the expert advice taken from a group of physicians. In regards to non- terminally ill patients, extraordinary medical treatment includes three cases: (1) treatment that is known to be useless and futile, (2) treatment that endangers the life or cause more harm than what it removes, and (3) useful treatment, but the patient is unable to bear the cost. (shrink)

In Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298, the New South Wales Court of Appeal held that exemplary (or punitive) damages are not available for breach of fiduciary duty or other equitable obligation. The decision runs counter to authorities in Canada, New Zealand and some U.S. states. Punitive (exemplary) damages is a hotly debated topic in the United States and it has attracted considerable interest among law and economics scholars, particularly in the tort litigation context. This (...) article analyzes the Digital Pulse case from a law and economics perspective. Polinsky and Shavell (among others) argue that the function of punitive damages is to achieve optimal deterrence in cases where the probability that the plaintiff will discover and successfully litigate the defendant’s wrongdoing is less than 1. Given the high costs of monitoring fiduciary behaviour, it might be tempting to conclude that exemplary damages should be routinely awarded for breach of fiduciary obligation. The article explains why this view is wrong. On the other hand, given the availability of gains-based remedies (the account of profits and the like) for breach of fiduciary obligation, it might be tempting to conclude that exemplary damages are never justified in fiduciary cases. The article explains why this view is wrong too. The main conclusions are that: (1) exemplary damages should be available for breach of fiduciary duty and the like, but not as a matter of course; and (2) exemplary damages were probably not warranted in Digital Pulse itself. (shrink)

When the clinician and patient are unable to reconcile differences over treatment, does this mean the latter lacks capacity to decide in such matters? Wellesleyet alanalyse the legal judgements in the case of Ms Sudiksha Thirumalesh where, on the particulars, the Court of Protection answered yes, only for the Court of Appeal to disagree. The authors highlight concerns about using isolated false belief as an indicator of incapacity and advise that such matters may be better resolved by greater discussion of (...) the benefits and burdens of treatment, alongside consideration of their costs. Here, I suggest that a disability perspective is also helpful to such cases, recognising that this was a disagreement from which the patient couldn't walk away. Disability means that particular care is required when considering the burdens and benefits of treatment as these may vary widely in the eye of the beholder. Second, the costs of litigation are particularly high when a disabled person, with life-limiting illness, is left feeling they are using precious time and energy arguing for their existence. Third, any such legal judgments ought to make clear what reasonable adjustments have been offered to include the disabled person in proceedings. Fourth, and relatedly, such disputes should be attentive to the significant risk of epistemic injustice, where disabled patients find themselves less believed, in part because the ‘able-bodied’ have not shared their experiences. Together, these considerations (i) add to the call made by Wellesleyet alfor better discussions and (ii) suggest that early involvement of Rehabilitation Medicine, with expertise in disability and related ethics, could offer an important means to reduce the need for such litigation in the future. (shrink)

Conflict is an important consideration in the intensive care unit. In this setting, conflict most commonly occurs over the ‘best interests’ of the incapacitated adult patient; for instance, when families seek aggressive life-sustaining treatments, which are thought by the medical team to be potentially inappropriate. Indeed, indecision on futility of treatment and the initiation of end-of-life discussions are recognised to be among the greatest challenges of working in the ICU, leading to emotional and psychological ‘burnout’in ICU teams. When these disagreements (...) occur, they may be within the clinical team or among those close to the patient, or between the clinical team and those close to the patient. It is, therefore, crucial to have a theoretical understanding of decision-making itself, as unpicking misalignments in the family’s and clinical team’s decision-making processes may offer strategies to resolve conflict. Here, we relate Kahneman and Tversky’s work on cognitive biases and behavioural economics to the ICU environment, arguing that these biases could partly explain disparities in the decision-making processes for the two conflicting parties. We suggest that through the establishment of common ground, challenging of cognitive biases and formulation of mutually agreeable solutions, mediation may offer a pragmatic and cost-effective solution to conflict resolution. The litigation process is intrinsically adversarial and strains the doctor–patient–relative relationship. Thus an alternative external party should be considered, however mediation is not frequently used and more research is needed into its effectiveness in resolving conflicts in the ICU. (shrink)

Background: Priority setting is necessary in current healthcare services. Discussion of fair process has highlighted the value of developing reasons for allocation decisions on the basis of experience gained from real cases.Aim: To identify the reasons that those with experience of real decision-making concerning resource allocation think relevant in deciding on the priority of a new but expensive drug treatment.Methods: Semistructured interviews with members of committees with responsibility for making resource allocation decisions at a local level in the British National (...) Health Service, analysed using modified grounded theory.Results: 22 interviews were carried out. 14 reasons were identified. Four reasons were almost universally considered most important: cost effectiveness; clinical effectiveness; equality and gross cost. No one reason was considered dominant. Some considerations, such as political directives and fear of litigation, were thought by many participants to distort decision-making. There was a substantial lack of agreement over the relevance of some reasons, such as the absence of alternative treatment for the condition.Conclusions: There is a clear consensus on the importance and role of a limited number of reasons in allocation decisions among participants. A focus on the process of decision-making, however, does not obviate the need for those involved in the process to engage with problematical ethical issues, nor for the importance of further ethical analysis. (shrink)

BackgroundDefensive medicine (DM) practice refers to the ordering or prescription of unnecessary treatments or tests while avoiding risky procedures for critically ill patients with the aim to alleviate the physician’s legal responsibility and preserve reputation. Although DM practice is recognized, its dimensions are still uncertain. The subject has been highly investigated in developed countries, but unfortunately, many developing countries are unable to investigate it properly. DM has many serious ramifications, exemplified by the increase in treatment costs for patients and (...) health systems, patients’ exposure to risks, and negative effects on the psychological health of both health providers and recipients. Ultimately, the most serious consequence is the ethical consequences.MethodsThis work is based on a review of the literature related to DM worldwide and a comparison with the available knowledge found in Jordan. It is qualitative with a descriptive nature, aiming to diagnose the current DM practice in Jordan.ResultsThis is the first published article that discusses DM in Jordan by diagnosing its ethical and economic consequences for the health system as well as for patients. Despite the knowledge of the reasons that support its practice, little is being done to solve this issue. The absence of agreeable medical malpractice law, the dearth of unified medical protocols, the overwhelming pressure imposed by patients on medical staff, and the deteriorating patient-physician relationship are some of the causes of DM practice. Surely, the solution to these issues is to focus on fortifying the ethical and humanitarian aspects on the side of both the physician and the patient to ensure positive collaboration. The ethical aim of the physician to treat the patient faithfully and do what is possible to help combined with the appreciation of the physician’s efforts and the choice to not take advantage of the physician through litigation could be the most reasonable solution in the near future.ConclusionJordan is suffering from DM due to the limited financial expenditure on the health sector and the impracticality of medical malpractice law. The authors highlight that the cardinal step in solving this dilemma is restoring the ethical dimension of the patient-physician relationship. (shrink)

Since the start of the new millennium, many contemporary jurisdictions have been revisiting the fundamental principles of their civil procedures. Even the core areas of the civil process are not left untouched, including the way in which evidence is introduced, collected and presented in court. One generator of the reforms in the field of evidence-taking in recent decades has been slow and inefficient litigation. Both in Europe and globally, reaching a balance between the demands of factual accuracy and the (...) need to adjudicate disputes in a swift, cost-effective and efficient way is still one of the key challenges. The second reason that many countries are reforming their law of evidence is related to cultural and technological changes in modern societies. As the balance between, on the one side, traditional human rights such as the right to privacy and due process is shifting towards, on the other side, the modern need for security, efficiency and quick access to justice, the perception of what is admissible or not in the context of evidence-taking is changing as well."--Back cover. (shrink)

This nation’s obesity epidemic is hardly a laughing matter. Approximately 300,000 Americans die from obesity-related causes each year, and without corrective measures, obesity may soon be responsible for as many deaths as cigarette smoking. Sixty-one percent of adults are overweight or obese, and the cost of obesity for the year 2000 was estimated to be 117 billion dollars.In Pelman v. McDmalds, a case decided in September 2003, a federal judge dismissed an amended complaint that attempted to hold McDonalds liable for (...) its customers’ obesity-related illnesses. While many argue that such litigation is frivolous and that the plaintiffs did not deserve direct compensation for their injuries, the debate has largely overlooked the important question raised by these cases - who should pay for the enormous financial strain that obesity places on America’s health care system? Although the courtroom may not be the appropriate forum to deal with this issue, the litigation has undoubtedly brought a great deal of much-needed attention to a vexatious social problem. (shrink)

This article examines the process for the eviction of tenants, which offers landlords a swift path for obtaining an eviction order against their tenants, as a case study exposing the politics of procedure. It shows that the PET is but one stage in a longstanding battle waged between two interest groups—landlords and tenants—involving both substantive law and procedural law. But while the story of their conflict over substantive law, fought in the parliament through the regular legislative process, is well-known, the (...) story of the procedural amendments, despite their immense impact, remains shrouded in mystery and is told here for the first time. The reason for that, we argue, is that despite the vast impact of procedure on substantive right, many in the Israeli legal system mistakenly view civil procedure rules as highly technical and neutral directives for the day-to-day operation of the litigation process. The conclusion from such a view is that rulemaking should be left to expert legal technicians and court administrators and that transparency mechanisms or public participation are to be avoided as unnecessary due to the costs and burdens they impose on the rulemaking process. The article concludes with a call for overhauling the rulemaking process in Israel. We argue that the secretive and opaque process is anathema to democracy. Bearing in mind that procedural rules are inevitably imbued with substantive values and have an enormous effect on the substantive rights of the citizenry, the rulemaking process should be radically altered to enable all interested parties to take part in the process, making it far more transparent and subject to public scrutiny in all its stages. (shrink)

With the great increase in litigation, insurance costs, and consumer prices, both managers and businesses should take a proactive position in avoiding liability. Legal liability may attach when a duty has been breached; many actions falling into this category are also considered unethical. Since much of business liability is caused by a breach of a duty by a business to either an individual, another business, or to society, this article asserts that the practice of liability prevention is a (...) practical business application of ethics. In today's highly litigious environment, it is appropriate for the concept of general liability prevention to be included in corporate codes of ethics. (shrink)