New tainted-blood class actions in Québec and Alberta

In two cases in Québec and Alberta, people infected with HIV and HCV through infected blood and blood products have successfully defended motions to strike out all or parts of their legal actions against federal and provincial governments and the Canadian Red Cross Society (CRCS). On 16 January 2003, the Québec Superior Court ruled that the plaintiffs in a class action could rely on the Krever Commission Report in their application for certification of a class proceeding. On 20 February 2003, the Alberta Court of Queen's Bench dismissed an application brought by the Canadian and Alberta governments to strike out the legal action brought against them. These cases illustrate that the settlement schemes proposed by the federal and provincial governments and the CRCS, and approved by the courts, have not put an end to the civil and constitutional claims brought by people seeking compensation for infection through tainted blood.     

Seeking rents through class actions and legislative lobbying: a comparison

This article analyzes class actions as a technology that groups may use in their rent-seeking activity, in addition to other rent-seeking methods such as legislative investment within the political market, when they seek to achieve favorable decisions from decision-makers—courts and legislators. It claims that groups may make their choice between various rent-seeking technologies according to their sensitivity to the problem of free riding. Therefore, it analyzes the effect of the legal instruments that facilitate class action lawsuits and collective litigation in most countries upon the rent-seeking strategies of groups, as compared to rent-seeking through legislation.     

Fetal protection and potential liability: judicial application of the Pregnancy Discrimination Act and the disparate impact theory

"Fetal vulnerability programs," which are employer attempts to protect employees' unborn fetuses from harm caused by the mothers' exposure to hazardous material in the workplace, have been challenged as a form of employment discrimination. This Note analyzes the recent judicial application of the Pregnancy Discrimination Act (PDA) and the disparate impact theory to fetal vulnerability cases. The Note also examines the business necessity defense's accommodation of legitimate employer interests. The Note concludes that a more potent business necessity defense, a stricter standard for evaluating alternative protective measures, and a judicial interpretation of the PDA which is more consistent with congressional intent are necessary for fair and reasonable resolution of these cases.     

Incentive effects of class actions and punitive damages under alternative procedural regimes

In an economic perspective, punitive damages and class actions can be viewed as sharing a common economic function—creating optimal deterrence. Building on Parisi and Cenini (Class actions for Europe: perspectives from law and economics, ELGAR, 2010), we study the effect of alternative procedural regimes on the effectiveness of punitive damages and class actions. Specifically, we compare the workings of punitive damages and class actions in the American and English (“loser-pays”) regimes. Our findings help explain the limited use and late adoption of class actions and punitive damages in Europe.     

Re‐Claiming Disability: Identity,Procedural Justice,and the Disability Determination Process

This research highlights the crucial role of an intimate link between a disabled person's self‐identity and the perceived fairness of legal procedures. In doing so, it brings to the foreground a wholly ignored aspect of procedural justice. Earlier researchers have failed to delve into the role identity politics plays in the relationship between the institutions and the beneficiaries of their services, and the way different members of a group understand and define themselves. This research explores the way people with disabilities in the United States, with different kinds of disability identities, experience and evaluate the procedure of claiming Social Security benefits. The findings suggest that disabled people who identified with the social model of disability (as opposed to the medical‐individual models) hold a critical view of the procedure for retaining benefits. They felt they had no control over it, could not voice their opinions, were mistreated by representatives, and had to present an image that was not necessarily true of their disability. They also saw the procedure as discouraging them from participating fully in the labor market, and consequently integrating better in society, an idea that was not present among disabled people who identify with medical‐individual models. Exposing this relationship between the way people perceive themselves and the way they experience and evaluate legal procedures can contribute to the creation of better policies, while improving communication between the state and members of the disability community, along with other marginalized groups.     

The law firm as an investment bank in class actions

Class action finance raises substantial principal agency problems between plaintiffs and lawyers, which limit the extent to which the class action can be used as an instrument to overcome market failure.     

Mental Disorder, Work Disability and the Law

R.J. Bonnie and J. Monahan, eds., Mental Disorder, Work Disability, and the Law (Chicago: University of Chicago Press, 1997): 321 pp.     

The costs of class actions: allocation and collective redress in the US experience

Once a preserve of the American legal landscape, the class action device today transcends geographic boundaries. In the past decade, efforts have intensified to establish collective litigation instruments in diverse legal terrains outside the United States—including Europe—often with the common goal of allowing some form of collective legal redress while avoiding perceived disadvantages of class actions in the American experience. Today more than ever, from legislators to litigants to scholars, European reformers face the challenge—and the opportunity—of making fundamental choices about the scope and shape of the collective legal remedies they wish to make available. Choices about the shape of the class action device reflect foundational judgments about the proper allocation of costs, and there is much from the US experience that can inform Europe’s prospective reformers. This article describes the history and current status of class action rules in the US, and then compares class actions and another form of extra-compensatory damages—one type of punitive damages—as means of doing the same thing. Although neither punitive damages of this sort nor class actions generally have traditionally existed in civil law systems, they both—and especially this particular form of punitive damages—can, from an economic view, be made to vindicate the same kind of social cost accounting goals. By considering these legal devices together, we hope to shed light on crucial choices facing Europe as it grapples with how best to provide collective legal redress in light of the lessons of the US experience with class actions.     

Pain, Impairment, and Disability in the AMA Guides

Physicians use the American Medical Association's Guides to the Evaluation of Permanent Impairment, 5th edition to evaluate millions of disability applicants each year. As major contributors to the chapter in the Guides devoted to assessing impairment associated with pain, we confronted the difficulties of incorporating pain into the Guides' overall evaluation system. Analysis of these difficulties is complicated by the paucity of research on the Guides, and by ambiguities and contradictions that pervade it. We propose that the ambiguities can be reduced if impairment is consistently defined in terms of organ or body part derangement, and disability in terms of activity limitations at the level of the whole person. We also propose a distinction between objective factors that may influence a person's ability to perform activities following injury. We suggest that when physicians examine disability applicants, they should evaluate both objective measures of organ or body part dysfunction and subjective reports of applicants -- especially ones regarding pain. We conclude that a comprehensive medical evaluation of disability applicant encompasses more than an impairment assessment.     

The Ethics of Care,Dependence, and Disability*

According to the most important theories of justice, personal dignity is closely related to independence, and the care that people with disabilities receive is seen as a way for them to achieve the greatest possible autonomy. However, human beings are naturally subject to periods of dependency, and people without disabilities are only “temporarily abled.” Instead of seeing assistance as a limitation, we consider it to be a resource at the basis of a vision of society that is able to account for inevitable dependency relationships between “unequals” ensuring a fulfilling life both for the carer and the cared for. **     

Biopsychosocial Factors that Perpetuate Chronic Pain, Impairment, and Disability

The biopsychosocial model provides the most heuristic account of the complex multifaceted nature of chronic pain and its associated impairment and disability. Although chronic pain, impairment, and disability are related, these are three separate constructs. In order to understand how these three constructs are interrelated, the development of pain from the acute to the chronic stage is discussed. Psychosocial factors as barriers to recovery are emphasized, including those that commonly manifest among patients receiving disability compensation. This is complemented by a review of psychometric instruments used to assess these psychosocial factors in chronic pain. Finally, the major delineation in levels of care for chronic pain is highlighted, emphasizing an interdisciplinary approach that is consistent with pain as a biopsychosocial phenomenon.     

Workers' Compensation, Social Security Disability, SSI, and Genetic Testing

This article argues that the use of genetic testing to determine eligibility for worker compensation and/or social security disability benefits would seriously undermine the social purposes of the laws.