Band 15, Heft 2 - New Approaches for a Safer and Healthier Society

When harm is caused by multiple injurers, damages are allocated among the responsible injurers in proportion to their relative responsibility for harm. This Article shows that a proportional allocation of liability between strictly-liable injurers distorts incentives to take precautions. The effects of this distortion depend on the nature of the injurers’ precautions. If precautions are complements, injurers compete for lower liability shares, which results in excessive care-taking. If precautions are substitutes, injurers are afflicted by moral hazard, which gives rise to insufficient care-taking. By illuminating injurers’ strategic incentives, this Article highlights a tension between equity and efficiency under a proportional allocation of liability

Assumption of risk - the notion that one cannot complain about a harmful state to which one has willingly exposed oneself - figures prominently in our extra-legal lived experience. In spite of its deep roots in our common-sense morality, the tort doctrine of assumption of risk has long been discredited by many leading tort scholars, restatement reporters, courts, and legislatures. In recent years, however, growing concerns about junk food consumption, and about obesity more generally, have given rise to considerations that are traditionally associated with the principles underlying the doctrine of assumption of risk. Against this backdrop, I shall advance two claims: one negative and the other affirmative. The negative claim is that the major objections to the doctrine of assumption of risk are either misplaced or overblown. And affirmatively, I argue that this doctrine (properly reconstructed to reflect liberal-egalitarian intuitions) can provide an illuminating framework with which to address pressing social concerns such as the one associated with junk food’s harmful side-effects

A doctor who lapses and injures her patient, and a driver who lapses and causes an accident, are liable under negligence law for the harm done. But lapse is not necessarily negligence, since reasonable people lapse from time to time. We show that tort liability for “reasonable” lapses distorts doctors’, drivers’, and manufacturers’ incentives to take care. Furthermore, such liability provides potential injurers with incentives to substitute activities which are less prone to lapses with activities which are more prone to lapses, even if such substitution is inefficient. We propose several solutions to the inefficiencies that result from liability for lapses, and argue that under certain circumstances injurers should be entitled to invoke a “lapse defense.”

At the core of the tort preemption cases before the U.S. Supreme Court is the extent to which state law can impose more stringent liability standards than federal law. The express preemption cases focus on whether the state law requirements are “different from, or in addition to” the federally imposed requirements. And the implied conflict preemption cases examine whether the state law standards are incompatible (impossibility preemption) or at least at odds (obstacle preemption) with the federal regulatory scheme. But the preemption cases in the appellate pipeline - what I shall term the “second wave” of preemption cases - address a separate analytic question. Their focus is less on the substantive aspects of regulatory standards, and more on their enforcement. When can state tort law impose substantive duties or obligations that are “parallel” to federal requirements without thereby encroaching upon a federal agency’s discretionary enforcement prerogative? This is the new frontier in products liability preemption. My proposed model suggests that courts facing these new issues should solicit input from federal agencies before resolving them. The model thereby offers a hybrid private-public model for the regulation of health and safety. It advocates an extension of my “agency reference model” to the “enforcement preemption” context: courts should place more emphasis on FDA input when deciding whether tort requirements are “parallel” to federal dictates, and (perhaps even more so) whether, even if they are, they nonetheless infringe on the federal agency’s discretionary enforcement prerogatives. Courts would thus seek guidance from federal agencies to determine whether a private right of action exists for the enforcement, via state law claims, of federal regulations

In a wide variety of contexts, individuals face a risk of being physically harmed by the conduct of others in the community. The extent to which the government protects individuals from such harmful behavior largely depends on the combined effect of administrative regulation, criminal law, and tort law. Unless these different departments are coordinated, the government cannot ensure that individuals are adequately secure from the cumulative threat of physical harm. What is adequate for this purpose depends on the underlying entitlement to physical security. What one has lost for purposes of legal analysis depends on what one what was entitled to in the first instance. Consequently, any mode of safety regulation that requires an assessment of losses or costs ultimately depends on a prior specification of entitlements. For reasons of history and federalism, the entitlement in the United States can be derived from the common law of torts. In addition to establishing how costs should be measured, the tort entitlement also quantifies any distributive inequities that would be created by a safety standard and shows how they can be redressed within the safety regulation. When applied in this manner, the tort entitlement to physical security promotes substantive consistency across the different departments of law by serving as the distributive basis for environmental, health, and safety regulations that operate entirely outside of the tort system

This Article traces the trajectory of negotiated rulemaking within American administrative law. The popularity of negotiated rulemaking - among scholars, politicians, and regulators - has waxed and waned since its start in the 1980s. This Article describes and assesses these shifts, charting the birth of negotiated rulemaking, its incorporation into the APA, and its infrequent use in recent years. In mapping the rise and fall of negotiated rulemaking, we focus on two particular critiques - that it violates normative commitments to expertise and rationality in bureaucratic decision making, and that it fails to deliver on its promises of faster rulemaking and less litigation. This Article contends that the first critique is overblown and that the second is true in some instances but not in others. We argue that negotiated rulemaking is most valuable when the appropriate negotiating parties can be easily identified, when they are likely to make concessions and build rapport with each other, and when traditional methods of rulemaking have become ossified

Much health and safety regulation can be understood as the product of political coalitions between two groups. The first, consisting of persons with self-control issues, enlists the government as an intermediary. The second either expects to benefit from the success of the first, or anticipates gains from a tax imposed on the first group’s behavior. A political entrepreneur might plausibly turn these groups’ preferences into law. This public choice perspective on regulation provides a positive explanation of why it is more likely that a legal system will engage in some health and safety programs than in others. The important break from the conventional view of regulation, as something that either controls externalities or is imposed paternalistically, is in advancing the idea that the government is an intermediary deployed by those who want help. Internalities, associated with collective action problems or with time inconsistent preferences, deserve equal billing. The discussion considers smoking regulation and other health and safety regulation, and then contrasts these with anti-obesity efforts where private contracting is a more feasible means of controlling internalities, and where political coalitions are less likely

This Article considers the conditions under which administrative agencies - particularly those with public health-related missions - may obtain partial autonomy from external interests or politicians. In the process, it critiques the proposition that administrative agencies in advanced industrialized countries such as the United States are routinely “captured” by external economic interests. Through case studies and the application of relevant theory from law and the study of political organization, the Article describes how agencies can produce a measure of autonomy by forging coalitions of stakeholders both internal and external to the agency, and considers how partial autonomy may be modeled as a strategic process involving decisions under uncertainty. The Article then investigates how American publichealth agencies such as the Food and Drug Administration, the Food Safety Inspection Service, and the Centers for Disease Control have been able to use their partial autonomy to develop significant health policy innovations. Although agencies are by no means guaranteed even a partial degree of autonomy, they are nonetheless capable of affecting their political and legal environment, with consequences not only for public-health policy but also for the legitimacy of the nation-state

Six years ago, when I last wrote on tobacco policy, my perspective was to offer an assessment of the strengths and weaknesses of a halfcentury of tobacco control strategies aimed at reducing the health risks associated with cigarette smoking. I began with a discussion of informational strategies; then turned to public place restrictions; and followed with a treatment of excise tax initiatives. In my view, restrictions on advertising and promotion and resort to tort litigation had been less effective as control efforts, but nonetheless also warranted consideration. In the ensuing years, there have been a number of significant developments that have altered the course of tobacco control policy. Prominent among these developments has been the authority granted to the Food and Drug Administration in the Family Smoking Prevention and Tobacco Control Act of 2009; the resort by the industry to litigation in a new guise - particularly reliant on the First Amendment - as an offensive weapon targeting regulatory controls; and the publication of the 2012 Surgeon General’s Report on youth smoking, which makes the case for top-priority attention to underage smoking behavior. These and related measures point to new pathways for breaking through a perceived recent loss of momentum in achieving further reductions in tobacco-related disease, without abandoning what has worked in the recent past. I attempt to pull together these multiple fronts in a Section focused primarily on youth smoking, assessing the promise of present efforts to reduce the harms associated with tobacco. Finally, I offer some brief thoughts from a broader public-health perspective, discussing the framework of tobacco control initiatives from the vantage point of the obesity problem

Private certification as a means of risk regulation and quality assurance can offer advantages over government regulation, including superior technical expertise, better inspection and monitoring of regulated entities, increased responsiveness to consumers, and greater efficiency. This Article examines two examples of reliable private certification in regulatory arenas - fire safety and kosher food - where political opposition and resource constraints have frustrated government regulatory efforts. The Article identifies key features of reliable private certification and analyzes its comparative institutional advantages over government regulation. Critics of private certification question its legitimacy, asserting that private regulation is less participatory, transparent, and accountable than government regulation. The Article responds to these claims, arguing that the two examples of private certification presented here compare favorably with government regulation based on these criteria of legitimacy

The patient safety movement seeks to reduce the number of avoidable injuries and diseases that patients suffer while in hospital. Two regulatory strategies in support of that movement are explored here. “Required disclosure” would rely on market responses to an increase in publicly available information about hospital errors. “Performancebased regulation” would require hospitals to reduce their error rate or suffer substantial financial penalties. Both approaches are designed to give medical service providers incentives to promote safety without resorting to “command and control” regulation under which government experts tell hospitals how to act

Whistleblower bounty schemes that pay individuals a cash “bounty” for surfacing information about illegal conduct have rapidly gained public and scholarly attention, fueling calls to install a bounty approach across numerous regulatory areas, from workplace safety, environmental protection, and civil rights to political corruption, immigration, and antitrust. Yet despite the enthusiasm, bounty regimes have remained confined to the fraud context (procurement, securities, tax). This Article uses this fact as a jumping off point and, looking across the regulatory state, aims to answer some basic questions about bounty regimes that have thus far eluded sustained scholarly attention: What features of a given regulatory area make it more or less conducive to a bounty approach? Given this, how might existing bounty regimes be revised? And if bounty regimes were to break out of the fraud area, where might they most profitably spread? It offers some initial answers to these questions by constructing a simple framework that shows how two features of the regulatory environment - the directness of the harm to be regulated and the determinacy of the legal mandate to be implemented - structure the choice among competing bounty approaches. These aspects of regulatory context, I argue, map onto the two most vexing challenges facing regulatory architects weighing a bounty mechanism or choosing among competing designs: optimizing the quantity and quality of information revelation and maintaining public control over the elaboration of legal mandates. The framework brings into relief some of the fault-lines in the growing scholarly debate about the optimal use and design of bounty schemes, including the choice between a simple cash-for-information scheme and a more elaborate qui tam scheme in which whistleblowers are vested with independent enforcement authority via a private right of action. It also yields a rough regulatory roadmap showing where existing bounty schemes might be revised and also the areas to which a bounty approach might be usefully exported

To achieve more cost-effective deterrence of unreasonable risktaking through civil liability, I propose and demonstrate previously unrecognized benefits of using simple random sampling to resolve multiple claims against a business or government defendant in the aggregate. I show that counter to intuition and prevailing assumptions and practice, simple sampling will enhance, not compromise, deterrent results regardless of the number of claims and the variety and significance of differences among them. Indeed, it can be used to resolve multiple claims that bear no resemblance to one another except for targeting the same defendant. The proposal can thus be employed to increase the efficiency of resolving relatively similar claims in class and consolidated actions and, by extending the application of such collectivizing processes, lower the cost of resolving all other claims that would be adjudicated as separate actions. I close by sketching a design for a reformed civil liability system that fully integrates and exploits the law enforcement benefits of sampling to better achieve the primary social objectives of accident risk deterrence and insurance

Binding arbitration is generally less available in tort suits than in contract suits because most tort plaintiffs do not have a pre-dispute contract with the defendant, and are unlikely to consent to arbitration after the occurrence of an unforeseen injury. But the Federal Arbitration Act applies to all “contract[s] evincing a transaction involving commerce,” including contracts for healthcare and medical services. Given the broad trend towards arbitration in nearly every other business-to-consumer industry, coupled with some rollbacks in tort reform measures that have traditionally favored medical professionals in the judicial system, it is very possible that we may witness in the near future more medical contracts containing arbitration provisions. As a consequence, all manner of tort claims (including negligence, loss of chance, and other allegations of medical malpractice resulting in physical and psychological injury) might be hashed out in the sequestered universe of arbitration