Optimal agency contracts: The effect of vicarious liability and judicial error

Under the doctrine of vicarious liability, a deep-pocket principal is often held responsible for a third-party harm caused by a judgment-proof agent’s negligence. We analyze the incentive contract used by the principal to control the agent’s behavior when a court can make an error in determining the agent’s negligence. We show that (1) reducing the error of declaring the agent not negligent even when he was (pro-defendant or type II error) is better than reducing the error of declaring the agent negligent even when he was not (pro-plaintiff or type I error) and (2) allowing the principal to penalize the agent even when the court declares the agent not negligent improves welfare. The latter supports the argument that causing an accident (or a reliable allegation of misconduct) should be sufficient to justify a “just cause” termination of an employee.     

论药品的警示缺陷责任

药品生产商对药品的警示缺陷应承担无过错责任。在追究药品生产商的严格责任时，应注意考察药品生产商在药品危险警示方面是否尽到了充分的、持续的、及时的注意义务。在药品生产商对药品危险具有充分知识而未尽警示义务的情况下，药品生产商应对药品对消费者所带来的损害负赔偿责任。对于处方药，药品生产商应对医师尽危险警示义务，这归因于医师处于权衡利弊并减少损害风险的位置。当药品生产商的促销行为使得医师作为评估者和决策者的地位减弱或丧失时，药品生产商应对消费者直接尽警示义务。药品危险警示义务的主体是生产商。药师不负有一般的药品危险警示义务，除非存在足以使人警觉从而引发较大注意义务的额外因素。     

论药品的警示缺陷责任

药品生产商对药品的警示缺陷应承担无过错责任。在追究药品生产商的严格责任时 ,应注意考察药品生产商在药品危险警示方面是否尽到了充分的、持续的、及时的注意义务。在药品生产商对药品危险具有充分知识而未尽警示义务的情况下 ,药品生产商应对药品对消费者所带来的损害负赔偿责任。对于处方药 ,药品生产商应对医师尽危险警示义务 ,这归因于医师处于权衡利弊并减少损害风险的位置。当药品生产商的促销行为使得医师作为评估者和决策者的地位减弱或丧失时 ,药品生产商应对消费者直接尽警示义务。药品危险警示义务的主体是生产商。药师不负有一般的药品危险警示义务 ,除非存在足以使人警觉从而引发较大注意义务的额外因素。     

Governmental liability for breach of contract

Government contracts are subject to a number of legal rulesthat have no private sector analogues and that have receivedvirtually no attention from law and economics scholar. Thisarticle explores these rules from an economic perspective, withspecial attention to the leading modern case on the subject,United States v. Winstar. The analysis emphasizes a number ofdifferences between governmental and private actors that haveimportant implications for the wisdom of applying conventionalbreach of contract remedies to the government. These differencesafford plausible efficiency justifications, in our view, formany of the most important doctrines governing government contracts.Some of these doctrines help to impede the use of long-termcontracts to insulate inefficient rent-seeking arrangementsagainst subsequent attack, some seem to prevent the governmentfrom inefficiently contracting away its ability to respond tonew information, and others seem to work a sensible allocationbetween the government and private contractors of the risk thatgovernment may change its policies. Not all doctrines and decisionscan be justified in this fashion, however, and we do not meanto claim that the existing body of law is in any sense optimal.Indeed, the Winstar decision itself seems quite mistaken froman economic standpoint. The considerations that we develop haveimplications for a number of related legal issues. Not all ofthese implications are developed here, but we do consider modernlitigation under the Contract Clause of the U.S. Constitutionas well as the recent academic debate about the wisdom of retroactivetaxation.     

Avoiding HMO liability for utilization review

In this article, the author describes the potential liability of Health Maintenance Organizations for utilization review programs. Utilization review is used to determine whether certain medical treatment is necessary according to the standards of the HMO, and the HMO may decline to pay for treatments it deems unnecessary. If a doctor abstains from treatment because of this decision and the patient is harmed, the HMO may become the target of litigation. The author analyzes several recent cases and offers practical ideas for preventing and defending suits brought against HMO's for utilization review decisions.     

Legal liability of universities for students

This article involves analysis of the nature of the legal relationship between universities and their students. The development of a general perception that students are consumers of services provided by the university or their clients responsible for paying their own fees has led to an increased likelihood of students seeking legal redress for inadequacies in their educational experience. Recognition of the contractual basis of the arrangement and the resultant legal remedy for breach of the contractual terms has provided the means by which rights can be enforced. However, there are also a number of areas of law (under statute and the common law) which can be utilised for this purpose. These areas are summarised and the difficulties associated with their utilisation identified. The need to reform the system of student complaints in universities and the legal framework for enforcing their legal rights is discussed and recommendations put forward.     

Preconception tort liability: recognizing a strict liability cause of action for DES grandchildren.

Over the past decade more than 1,000 "DES daughters" have filed lawsuits against the manufacturers of DES, alleging that their in utero exposure to the drug caused various reproductive tract abnormalities, including cancer. Plaintiffs now allege that their grandmothers' use of DES during pregnancy caused genetic damage leading to cancer in third generations. This Note addresses the validity of preconception tort liability in the context of third-generation DES cases. Plaintiffs in preconception tort liability cases have sought recovery under both negligence and strict liability causes of action. Courts should recognize the validity of preconception tort liability and allow a strict liability cause of action in third-generation cases.     

设立海事责任限制基金程序中有关审查责任限制的问题

通过对设立责任限制基金和享受海事赔偿责任限制之间的关系的阐述,结合学术界对该问题的思考,对中国司法实践中所面临的困境进行分析,指出问题的本质在于有关涉案债权性质的审查范围上。建议法院在审查设立责任限制基金时,对涉案债权性质,应只按《海商法》第208条对其"非限制性"进行审查。     

设立海事责任限制基金程序中有关审查责任限制的问题

通过对设立责任限制基金和享受海事赔偿责任限制之间的关系的阐述,结合学术界对该问题的思考,对中国司法实践中所面临的困境进行分析.指出问题的本质在于有关涉案债权性质的审查范围上.建议法院在审查设立责任限制基金时,对涉案债权性质,应只按<海商法>第208条对其"非限制性"进行审查.     

Preferred provider organization liability for physician malpractice

The preferred provider organization (PPO) is a recent innovation in the health care industry, designed to reduce costs through selective contracting and utilization controls. This Note examines malpractice liability theories potentially applicable to PPOs. The Note compares PPOs to other health care institutions, including hospitals and HMOs, and concludes that PPOs are at minimal risk of incurring liability for physician negligence.