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Objective: Otolaryngologists are at a significantly greater risk of being sued than most other physicians. To date, there is a lack of studies characterizing trends in otolaryngology malpractice claims. To assess these trends and risk variables, this study examined malpractice claims against otolaryngologists. Study Design: Retrospective database review. Setting: LexisNexis Jury Verdicts and Settlements. Methods: The LexisNexis legal database was used to locate jury verdicts and settlements related to medical malpractice in otolaryngology, from 2018 to 2024. The study did not include any claims covered by the Social Security Disability Insurance, Workers' Compensation, Healthcare Law, or Criminal Law and Procedure categories. Temporal trends were evaluated, and logistic regression was used to identify independent risk factors. Results: Out of 903 items, 79 reported malpractice cases were included (mean age 44.5; 60.3% female). The most sued subspecialty was head and neck oncology (32.5%). Negligence (93.7%) was the primary cause of action. Of cases sent to the jury, 87.7% of them resulted in a verdict in favor of the defendant. The mean plaintiff verdict payout was $7,432,508.06 and the mean identified settlement amount was $1,562,500.00. Physical injury (62.0%) was the highest type of harm. Regional analysis indicated a higher percentage of cases from New York favored the defendant (21.1% vs 13.6%; P =.034). Conclusion: This study highlights key trends in otolaryngology malpractice claims, emphasizing the prevalence in cases of head and neck surgery, primarily attributed to negligence. By identifying trends and risk factors, otolaryngologists can get a better understanding of the dynamics surrounding malpractice. [ABSTRACT FROM AUTHOR]

Objective Study Setting and Design Data Sources and Analytic Sample Principal Findings Conclusions To evaluate the impact of tort reform laws passed in 2011 capping noneconomic damages in North Carolina and Tennessee on rates and adjusted per user costs of tests, imaging, and procedures in the Medicare fee‐for‐service population.State‐level synthetic difference‐in‐differences, adjusting for the percent of FFS Medicare beneficiaries in the state who were female, had ever been on Medicare Advantage, were eligible for Medicaid for at least 1 month of the year, and total state risk‐adjusted, standardized per‐capita costs. Analyses of North Carolina and Tennessee were performed separately. We measured the average treatment effect on the treated.Centers for Medicare and Medicaid Services Geographic Variation Public Use File, 2007–2019.Our analysis showed no economically significant impact of these laws in either state, though we found a small but statistically significant increase (average treatment effect on the treated: $46, 95% confidence interval: $6–$87) in adjusted per user cost of procedures in Tennessee.Our findings suggest that caps on noneconomic damages alone may be insufficient to modify physician practice habits and impact utilization. Future work should attempt to better understand the economic and noneconomic incentives that shape physician ordering decisions. [ABSTRACT FROM AUTHOR]

The article cites reasons for the failure of tort reform in Florida. It discusses the proposed goals of the tort reform system and the legislature's methods to accomplish those goals. Tort reform methods for limiting medical malpractice insurance premium lawsuits include statutory presuit process, the Florida Birth-Related Neurological Injury Compensation Plan, limitation of recovery against state-run hospitals, limitation of how much an injured party may recover and cap on noneconomic damages.

This Article provides empirical support for the heavily debated role of foreseeability in tort law. In Palsgraf v. Long Island Railroad Co., then-Chief Judge Benjamin Cardozo argued that foreseeability is a necessary requirement to establish duty, while Judge William S. Andrews dissented on the grounds that duty describes the general relationship that exists in society and that foreseeability should be a consideration for proximate cause. Most consider this debate meaningful as dictating that when foreseeability is considered--in duty versus in proximate cause--will determine who considers it--judge versus jury. While conventional thinking suggests that a Cardozo view of duty implies that judges will be the arbiter of foreseeability, many states have departed from this thinking and assigned juries as the arbiter of foreseeability independent of the duty versus proximate cause debate. This Article tests the effect of foreseeability consideration by using legal precedent variation in foreseeability by state. Borrowing from the tort reform literature, it considers three potential outcomes that have been shown to matter to changes in tort law: accidental deaths, infant mortality rates, and torts case starts. To properly identify the effect of changes to foreseeability consideration on these outcomes, I employ the common empirical strategies of two-way fixed effects regressions and Mundlak regressions, which represent a new advancement in the empirical literature. I find little evidence that when foreseeability is considered--in duty versus in proximate cause--matters, but who considers it does. States in which judges are the arbiter of foreseeability experience an increase in accidental deaths and an increase in the infant mortality rate. [ABSTRACT FROM AUTHOR]

This Essay delves into an apparent paradox that surfaced during a symposium entitled “Section 1983 and Police Use of Force.” Two themes were prevalent: one advocating for reforms to legitimize America’s criminal legal system and another warning against legitimizing a broken system through such reforms. This duality underscored a “legitimacy paradox”: attempts to validate the criminal legal system may inadvertently deepen its illegitimacy. Reforms can entrench mass incarceration, disempower those most affected by injustices, and mask the system’s inherent flaws, collectively perpetuating inequality, injustice, and illegitimacy. While these themes are common in academic discussions on policing and prisons, they are less prevalent in federal jurisdiction and constitutional torts, where Section 1983 debates typically occur. Recent events, however, have bridged the gap between civil justice in federal courts and criminal legal reform. Section 1983 has emerged as a key tool for addressing illegal police violence and systemic constitutional issues within the criminal apparatus, making concepts like “qualified immunity” central to police reform discourse in the United States. Drawing inspiration from Professor Henry Hart’s work The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, the Essay presents a fictional conversation between two federal courts professors. This dialogue explores the implications of abolitionism and “non-reformist reform” in a legal doctrinal context. The aim is not to provide definitive answers but to stimulate consideration of various perspectives. This approach underscores the complexity and interconnectedness of legal reforms, policing, and the pursuit of justice. [ABSTRACT FROM AUTHOR]

This document explores the issue of tort liability for physical harm to police officers arising from protests. It acknowledges the importance of protest in a democratic society but raises concerns about the suppression of protest through criminal law and civil liability. The document discusses examples of tort liability being used to suppress protest, both in the United States and abroad, and emphasizes the need for courts to balance the rights of protesters with the safety and well-being of police officers and bystanders. It also discusses the evolution of tort liability for firefighters and police officers, highlighting three key factors that have contributed to the broadening of liability. The document further explores the concept of risk creation by protesters and the potential risks and liabilities associated with protests. It discusses the intersection of tort law and constitutional law, emphasizing the need for precision in regulating protester liability while respecting First Amendment rights. The document also discusses the relationship between free speech and negligence liability in cases involving physical harm, highlighting the factors that courts should consider in determining liability. It concludes by emphasizing the need for a consistent framework for analysis to promote transparency and ensure justice for injured parties while respecting constitutional rights. [Extracted from the article]

This article explores the concept of including semen in products liability law. The author argues that both semen and products liability are often overlooked and not openly discussed. The author provides evidence from case law and secondary sources to support their arguments. They discuss the underrepresentation of semen in medical texts and online platforms, as well as the under-mentioning of products liability despite its importance. The author defends the inclusion of semen as a product in products liability law and highlights the potential benefits of stricter liability. Overall, the article aims to promote a better understanding of the legal implications and potential liability associated with semen. [Extracted from the article]

It is widely claimed that the level of transnational litigation in U.S. courts is high and increasing, primarily due to forum shopping by foreign plaintiffs. This “transnational forum shopping claim” reflects the conventional wisdom among transnational litigation scholars. Lawyers use the claim in briefs; judges use it in court opinions; and interest groups use it to promote law reform. This article reassesses the transnational forum shopping claim theoretically and empirically. It argues that despite globalization, there are reasons to doubt the claim. Changes in procedural and substantive law have made the U.S. legal system less attractive to plaintiffs than it supposedly once was. Meanwhile, other legal systems have been adopting features similar to those that are said to have made the United States a “magnet forum” for foreign plaintiffs, and arbitration is growing as an alternative to transnational litigation. Empirically, using data on approximately 8 million civil actions filed in the U.S. district courts since 1988, the article shows that transnational diversity cases represent only a small portion of overall litigation, their level has decreased overall, and U.S., not foreign, plaintiffs file most of them. The data also reveal that federal question filings by foreign resident plaintiffs are not extensive or increasing either. These findings challenge the transnational forum shopping claim and law reforms based on it, and suggest that it should no longer be used by lawyers, judges, and scholars—at least not without supporting data. The article’s analysis also suggests new directions for transnational litigation as a field of scholarship that would move it beyond its current focus on U.S. courts toward a focus on understanding the dynamics of transnational litigation in global context.

The article titled "INFORMED CONSENT IN THE NEAV RESTATEMENT ON MEDICAL MALPRACTICE: A FRIENDLY CRITIQUE" by Nina A. Kohn discusses the Restatement of Torts (Third): Medical Malpractice and its contribution to assembling and explaining U.S. medical malpractice law. The article focuses on the Restatement's approach to defining the duty to provide informed consent and highlights concerns with its treatment of the patient-centered and provider-centered approaches. It also raises the issue of the legal consequences of providers' failure to comply with patients' known choices. The author suggests that the Restatement could benefit from a more nuanced definition of the provider-centered approach and provide greater guidance on liability in cases where patient wishes are disrespected. [Extracted from the article]

The article explores the proposed modernization of the medical malpractice standard of care, which is currently based on customary practices of physicians. It argues that many states have already shifted towards a standard that considers conduct regarded as competent by medical peers. The article also discusses the challenges of proving customary practices and the potential bias towards physicians in jury trials. It suggests that doctors may have systemic advantages in these cases and emphasizes the need for a more modern and flexible approach to medical malpractice law. Additionally, the article highlights the skepticism that juries often have towards patients who sue their doctors and concludes that juries are likely to give physicians the benefit of the doubt unless there is compelling evidence of negligence. [Extracted from the article]

This article discusses the American Law Institute's work on the Restatement (Third) of Torts, highlighting the importance of restating various aspects of tort law. The author also explores the connection between positive tort theory and the Restatement, arguing for its incorporation into the project. The text acknowledges the influence of various scholars on the development of tort theory and emphasizes the importance of theoretical explanation and justification in tort law. It discusses the application of positive tort theory in understanding existing tort doctrines and regulating different categories of activities. The author suggests that integrating positive tort theory into the Restatement process would enhance its social value and provide a better understanding of common law rules. [Extracted from the article]

The author examines ways for apology laws, a form of tort reform, to be effective in the medical care sector. Topics discussed include physicians' avoidance of malpractice claims, the hesitation of physicians to apologize to patients, the involvement of an admission of error or regret in apology, and the trend of apology laws across the U.S. in early 200s.

This article discusses the urgent need for comprehensive data, tort reforms, and cultural transformation to address medical negligence in India and revitalize the healthcare system. It highlights the lack of comprehensive data on medical negligence cases, making it difficult to assess the magnitude of the problem and develop strategies to minimize errors. The article also mentions the rise in medical negligence litigations and the challenges faced by healthcare professionals. It emphasizes the importance of implementing tort reforms and shifting from a punitive to a constructive mindset to foster safe reporting and accountability. The text provides recommendations for addressing the issue, including establishing a national database of lawsuits, studying thematic categorization of claims, implementing a standard procedure for determining compensation, and examining decisions that are overturned to identify shortcomings. Overall, the article emphasizes the need for comprehensive data, tort reforms, and cultural transformation to revitalize the healthcare system in India. [Extracted from the article]

Recent studies argue that different types of patients are affected differently by changes in malpractice pressure. We argue that defensive medicine causes these differential effects. Our theoretical model predicts that reduced malpractice pressure decreases health care spending among patients with good access to care, but increases spending among those with poor access. We test this theory by estimating the effects of tort reforms on birth by cesarean section. Reduced malpractice pressure through collateral source rule reform decreases C-section rates by 4.75% for mothers with timely initiation of prenatal care. On the other hand, reduced pressure through noneconomic damages caps increase C-section rates by 7.59% for mothers without timely initiation. These findings are consistent with defensive medicine. Further investigation suggests that reduced pressure improves access to care for vulnerable populations and reduces utilization among well-served consumers. These findings explain the literature's conflicting assessments of defensive medicine, despite its practice being widespread. [ABSTRACT FROM AUTHOR]

Millions of Americans face civil justice problems each year, and most of these problems never make it to court, let alone to a legal expert. Although research has established that race and class are associated with a person's chance of experiencing a civil justice problem, detailed intersectional examinations of everyday people's justice experiences are largely absent. A more in-depth empirical understanding of the access to justice crisis can equip lawyers, policymakers, and other designers of justice interventions to create higher-impact, more efficient, and bettertargeted programs to meet the justice needs of everyday people. This Article fills a critical gap in the access to justice research. Using data from a representative sample of over 3,600 Americans, we conduct a granular analysis of the factors associated with the most common civil justice problems in the United States. We illuminate the scope of inequities in everyday legal experiences, point to key paths of legal and policy intervention, and show the importance of intersectional factors in understanding diverse needs for access to justice solutions. In addition to investigating how gender, race, age, and class shape people's chances of facing a civil justice problem, we investigate several less-examined characteristics: queerness, disability, rurality, parental status, and experiences of trauma. These identities turn out to be significantly correlated with civil justice needs as well-independent from, and in addition to, race, class, and gender. We show that the kinds of civil justice problems vulnerable populations face are not always intuitive and often transcend people's status as members of a particular population. We also use predicted probabilities to reveal enormous disparities in civil justice problems within groups that extant research has generally treated as monolithic-for example, showing that accounting for other identities and experiences can predict whether a low-income Black American has a 6% chance or a 45% chance of facing a family structure problem in the past year. To shrink the U.S. civil justice gap, we need a more detailed picture of the landscape of civil justice problems experienced by everyday Americans. This Article provides that picture and is intended to serve as a springboard for access to justice policy reform. [ABSTRACT FROM AUTHOR]

The civil-recourse-consideration, so it seems, is I constitutive i of (perhaps American) tort law, and it is the one that applies as a matter of necessity because of I the very nature i of tort law.[13] This is the consideration that tort law is I about. i [14] And this is why this kind of consideration gets priority here. No privileged normative considerations, or: there's nothing tort law is about The main normative insight underlying civil recourse theory is that "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). (I suspect they won't be happy to say, for instance, that civil recourse theory is simply false when applied to Israeli tort law, or perhaps to the tort law of some system that is less closely related to the common law.). [Extracted from the article]

The United States tort reform movement has capped noneconomic damage awards in many jurisdictions, thereby preventing the most injured plaintiffs from being fully compensated for their suffering. While litigants have asserted numerous state constitutional challenges to these tort recovery limits, with varying degrees of success, aggrieved plaintiffs have underutilized the Fifth Amendment's Takings Clause. This Article advocates that judicial reduction of a jury's noneconomic damage calculation after the court has informed the successful plaintiff of the full verdict is a regulatory taking in violation of the federal Takings Clause, as incorporated against the states through the Fourteenth Amendment. A Takings Clause violation requires a government taking of private property for public use without just compensation. A noneconomic damage award of which an injured plaintiff has been informed is a vested property interest; a trial judge reduces that award based on a statute; this is a regulatory, rather than a physical, taking under the Penn Central ad-hoc, three-factor standard; the taking is uncompensated because the plaintiff does not receive an equivalent of the full noneconomic damage verdict; and the taking is for public use because it is intended to reduce liability insurance premiums for the general public and encourage business investment. Finding enforcement of noneconomic damage caps to be an impermissible regulatory taking is supported by the Fifth Amendment's historical roots and the Supreme Court's Takings cases since the Founding. Moreover, ensuring that the most injured members of society, who are damaged because of a tortfeasor's actions, are adequately compensated and are not required by states to carry the burden of lower insurance costs and business investment for a whole jurisdiction is sound public policy. [ABSTRACT FROM AUTHOR]

This article from Economic Policy provides a summary of five papers that contribute to our understanding of economic and policy issues. The first paper examines the impacts of historical conflicts on the current conflict in Ukraine, emphasizing the importance of demining, preserving social cohesion, and addressing gender imbalances and conflict-related sexual violence. The second paper evaluates the effectiveness of legislation aimed at restricting the mobility of unemployed individuals within specific areas of a city, finding that these laws are ineffective and have unintended negative consequences. The third paper analyzes the macroeconomic impact of structural reforms in Italy, showing that these reforms can lead to increased productivity and GDP growth. The fourth paper presents a comprehensive analysis of China's foreign lending practices, highlighting unconventional confidentiality clauses and collateral arrangements used by Chinese lenders. The final paper explores the question of higher education subsidies, finding that increased subsidies can have positive fiscal and welfare impacts in many countries. These papers offer evidence-based recommendations and policy lessons for policymakers in various contexts. [Extracted from the article]

This paper quantifies the macroeconomic effects of three major structural reforms (i.e. service sector liberalizations, incentives to innovation and civil justice reforms) undertaken in Italy in the last decade. We employ a novel approach that estimates the impact of each reform on total factor productivity (TFP) and markups in an empirical micro setting and uses these estimates in a dynamic general equilibrium model to simulate the macroeconomic effects of the reforms. Microeconometric estimates indicate that the reforms imply a sizeable increase in TFP and a reduction in service markup. Structural model–based analysis shows that, accounting for estimation uncertainty, the increase in the level of GDP at the end of the current decade would be between 3.5% and 8%, with non-negligible effects on the labour market. [ABSTRACT FROM AUTHOR]

Florida HB 837 is a tort reform bill that aims to stabilize the insurance market and overhaul the civil justice system. The bill includes provisions that codify tort principles, change liability apportionment, limit bad faith claims against insurers, modify premises liability rules, and restrict attorney's fee awards. Supporters argue that it will reduce frivolous lawsuits, while critics claim it weakens accountability for insurance companies. The article examines the changes made by HB 837, predicts their impacts, and evaluates the likelihood of successful constitutional challenges. It also discusses the use of mass culture by the tort reform movement and highlights the Liebeck Hot Coffee case as an example. The article concludes by discussing key provisions of HB 837 and their potential effects. [Extracted from the article]

Textbook tort law establishes that waivers of liability--especially those involving physical harm--are often unenforceable. This Essay demonstrates through an extensive survey of the case law that despite being unenforceable, such waivers remain in widespread use. Indeed, defendants frequently use waivers even when a court has previously declared their specific waivers to be void. So why do such waivers persist? Often the simple answer is to hoodwink would-be plaintiffs. Waivers serve as costless deterrents to tort claims: Either they dupe naïve victims into believing that their claims are barred, or if not, the defendant is no worse off than before. Such flouting of unenforceability doctrine undermines the goals of the tort system--denying compensation to victims and eroding the care incentives of prospective injurers. In this Essay, we focus some long-overdue attention on the problem of unenforceable waivers and explore some solutions. [ABSTRACT FROM AUTHOR]

Since the 1980s, mediation transformed from an idealistic means of resolving conflict to an institutionalized means of resolving disputes at various stages, from diffuse aggrievements to active litigation claims, including cases on appeal. Chapter 9, "Lawyer Representation in Mediation" by Jacqueline Nolan-Haley, considers what to do when lawyers lack interest in or knowledge of mediation values. No look at mediation is complete without consideration of mediation agreements and post-mediation issues, which is exactly what Part IV, "Conclusion of the Mediation and Its Aftermath" does. Specifically, Chapter 1: "What Mediators Need to Know to Mediate Ethically" by Shapira lays out the general values encapsulated under the "mediation ethics" heading, the existing mediation ethics codes, and his take on approaching ethical issues that are not specifically addressed in the codes themselves. [Extracted from the article]

An interview with Haley Reeves Barbour, the 63rd governor of Mississippi, is presented. Topics discussed include his background as chair of the Republican National Committee, strategic perspective to battle tort reform, emphasizing medical, in order to take care of both medicine and business and medical malpractice in the state.

An interview with Ronnie Musgrove, 62nd governor of Mississippi, is presented. Topics discussed include political chatter on the issues of the civil justice system and malpractice insurance, the special legislative session of 2002 related to tort reform and the Mississippi Medical Malpractice Availability Plan law established in 2002.

The article discusses about legal aspects of tort, a civil wrong, other than by contract, by which a party is injured or damaged in some way. It informs that the tort a lawsuit based on a tort in Mississippi could not be described accurately as a hotbed of tort litigation. It also pays attention to social and legal environment that grew out of the tort litigation.

Despite more than half a century of reform efforts, access to civil justice is still understood to be in a state of crisis. Part of the reason for this is because there is no consensus among the legal community on the meaning of justice in this context. This paper seeks to provide a much-needed theoretical underpinning to the access-to-civil-justice movement. It advances 'justice as fairness,' as articulated by the American philosopher John Rawls, in conjunction with Lesley Jacobs' model of equal opportunities, as a suitable theory in which to frame the access-to-civil-justice movement. I explain why this framework is appropriate for pluralistic democracies like Canada and how it can be used to define measures of justice. This exercise is thus not simply a theoretical discussion, but rather is intended to be used as a practical framework to assess current and proposed policy initiatives. [ABSTRACT FROM AUTHOR]

Sports-related spinal injuries can be catastrophic in nature. Athletes competing in collision sports (eg, football) may be particularly prone to injury given the high-impact nature of these activities. Due to the oftentimes profound impact of sports-related spinal injuries on health and quality-of-life, they are also associated with a substantial risk of litigation. However, no study to date has assessed litigation risks associated with sports-related spinal injuries. A better understanding of the risk factors surrounding these legal claims may provide insights into injury prevention and other strategies to minimize litigation risks. In addition, it may allow the spine surgeon to better recognize the health, socioeconomic, and legal challenges faced by this patient population. To provide a comprehensive assessment of reported legal claims involving sports-related spinal injuries, including a comparative analysis of legal outcomes between collision and non-collision sports. To discuss strategies to prevent sports-related spinal injuries and minimize litigation risks. Retrospective review. Athletes experiencing spinal injuries during sports. Outcomes included verdict outcome (defendant vs. plaintiff), legal claims, injuries sustained, clinical symptoms, and award payouts. The legal research database Westlaw Edge (Thomson Reuters) was queried for legal claims brought in the United States from 1950 to 2021 involving sports-related spinal injuries. Verdict or settlement outcomes were collected as well as award payouts, time to case closure, case year, and case location. Demographic data, including type of sport (ie collision vs. non-collision sport) and level of play were obtained. Legal claims, spinal injuries sustained, and clinical symptoms were also extracted. Furthermore, the nature of injury, injured spinal region, and treatment pursued were collected. Descriptive statistics were reported for all cases and independent-samples t -tests and chi-square tests were used to compare differences between collision and non-collision sports. Of the 840 cases identified on initial search, 78 met our criteria for in-depth analysis. This yielded 62% (n=48) defendant verdicts, 32% (n=25) plaintiff verdicts, and 6% (n=5) settlements, with a median inflation-adjusted award of $780,000 (range: $5,480–$21,585,000) for all cases. The most common legal claim was negligent supervision (n=38, 46%), followed by premises liability (n=23, 28%), and workers' compensation/no fault litigation (n=10, 12%). The most common injuries sustained were vertebral fractures (n=34, 44%) followed by disc herniation (n=14, 18%). Most cases resulted in catastrophic neurological injury (n=37, 49%), either paraplegia (n=6, 8%) or quadriplegia (n=31, 41%), followed by chronic/refractory pain (n=32, 43%). Non-collision sport cases had a higher percentage of premises liability claims (41% vs. 11%, p=.006) and alleged chronic/refractory pain (53% vs. 28%, p=.04). Conversely, collision sport cases had a higher proportion of workers' compensation/no fault litigation (23% vs. 4%, p=.03) and cases involving disc herniation (29% vs. 9%, respectively; p=.04). Sports-related spinal injuries are associated with multiple and complex health, socioeconomic, and legal consequences, with median inflation-adjusted award payouts nearing $800,000 per case. In our cohort, the most commonly cited legal claims were negligent supervision and premises liability, emphasizing the need for prevention guidelines for safe sports practice, especially in non-professional settings. Cases involving athletes participating in non-collision sports were significantly associated with claims citing chronic/refractory pain, highlighting the importance of long-term care in severely injured athletes. [ABSTRACT FROM AUTHOR]

In this article, I offer a framing of the debates around mandatory mediation that rest on the premise that a legitimate civil justice process depends on unhindered access to an adjudicative system, which must be recognized as a procedural right. This is a keystone of the rule of law, and a valid legal system that deserves the authority that it asserts is contingent on this. My central thesis is that requiring mediation (which is independent of the rule of law) before allowing full access to adjudication compromises the procedural rights of legal subjects, and the rule of law principle. Such a mandate is, therefore, an improper exercise of legal authority. This does not, however, mean that mediation cannot have significant value in enhancing the civil justice commitment to human dignity. The benefits that abound in mediation should be widely accessible, especially because mediation can (when it functions well) offer autonomous, empowered decision-making. The analyses that I offer here pave the road for determining, pragmatically, how mediation should be incorporated into civil justice systems, such that individuals can have legal claims adjudicated in a system that centralizes the rule of law and may also choose an equitable and well-structured mediation system that is responsive to concerns raised by critical race and feminist scholars about informal dispute resolution. [ABSTRACT FROM AUTHOR]

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The Australian class action procedure has generated much controversy about how best to ensure that its costs do not outweigh its benefits. The increasing prevalence of litigation funding has further complicated the cost-benefit analysis. This article develops an economic framework for understanding the principal sources of costs in Australian class actions. In particular, information asymmetry among the key players in a class action generates agency costs, and the self-interested behaviours of these players may give rise to negative externalities on non-parties and the civil justice system. Yet measures to reduce agency costs and negative externalities may themselves give rise to costs, which we call preventive costs. These costs form part of our analysis. Our framework explains the core characteristics of Australian class action law and practice, and offers suggestions for ensuring that the costs of the class action procedure are fair and reasonable. [ABSTRACT FROM AUTHOR]

The article reflects on concerns regarding foundations of tort law which is burdened by a schism between economic theorists and individuals defending corrective justice; and discusses implications of the principle of generic consistency for tort law's doctrinal dimensions.

Judges take part in a variety of non-adjudicative tasks that shape the structure of litigation. In addition to their managerial functions, judges sit as administrative heads of court. They participate in civil justice reform projects and develop procedures for criminal and civil trials. What norms and principles ought to guide judges in this other work? In their casework we expect judges to be neutral and fair, setting aside politics and rationally following the law. Indeed, this article will demonstrate that there is good reason to insist on these qualities in both judges' case-related and broader court-related reform activities. To test this proposition, this article examines the work of judges who sat on the Advisory Committee for Civil Rules, the committee that evaluates and makes recommendations for rule amendments to the Federal Rules of Civil Procedure. In particular, this Article reviews the committee's nearly thirty-year effort to make rules for approving settlements in mass tort class actions. The review reveals politics and competition not only between judges and Congress for the authority to design rules of procedure, but also points to a lesser explored phenomenon, of competition between judges of the different levels of court. [ABSTRACT FROM AUTHOR]

Civil courts are uniquely important to children as democratic citizens. Because children are restricted from many core forms of democratic participation, courts provide a rare forum for children to voice their perspectives and concerns, seek redress for harms, and vindicate their legal rights. Yet, courts also are uniquely inaccessible to many child litigants. Several age-based procedural barriers restrict children's access to the courts. Because these barriers impose substantial financial costs, they can operate as an absolute bar to claims by low and moderate-income children. Federal courts bear a special obligation to protect child litigants within civil litigation. Yet, rather than help children surmount procedural barriers, courts frequently dismiss children's claims altogether, communicating implicitly, and sometimes explicitly, that children are better served by not pursuing justice. This Article explores the special importance of court access for children themselves and for the democratic system. It examines the doctrinal and philosophical foundations of the procedural barriers that exclude children's claims. And it proposes specific reforms to eliminate these barriers and facilitate access to civil justice for all children. [ABSTRACT FROM AUTHOR]

It is commonly perceived that the main difference between adversarial and non-adversarial systems of civil procedure is the party charged with the duty to gather facts and evidence. Generally speaking, in adversarial systems, it is the lawyers who gather facts and collect evidence while in non-adversarial systems, like continental Europe, it is the judges who bear that responsibility. Although this dichotomy exists, it is fundamentally flawed to conclude that the non-adversarial systems, such as the Continental ones, differ from the American system because of the inquisitorial method both in fact-gathering and evidence-gathering. The real differences, as we will demonstrate, are mainly the parties' roles in the preliminary phase of the lawsuit, the methods of discovery, the judge's involvement in the case, and the techniques for examining non-documentary evidence. Both systems present advantages and drawbacks regarding efficiency (cost-saving) and efficacy (truth-finding) iii the administration of justice. Suppose the procedural divergence is not entirely irreconcilable. Can they complement each other? In this respect, we specifically ask if an adversary system can help the most troubling aspects of non-adversary practices. If so, is it possible to reconcile the non-adversarial model with a preliminary phase typical in adjudication in the adversarial system? The recent Italian reform on civil procedure allows us to shed light on these questions. This more adversarial proceeding emerging from new Continental trends might seem particularly exciting for two reasons. Firstly, it introduces a stimulating new framework to reshape the debates about civil justice reform in an adversary system. Secondly, it suggests a new way of thinking about traditional domestic and country-specific rules and outlines a unified model of a semi-adversarial system. [ABSTRACT FROM AUTHOR]